{"id":1259,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-03-22","case_number":null,"request_numbers":["53629"],"title":"Elmhurst City Council violated OMA by failing to recite consent agenda items","filename":"53629, issued March 22, 2021.pdf","rel_path":null,"word_count":2658,"summary":"The PAC determined that the Elmhurst City Council violated the Open Meetings Act by failing to publicly recite each individual item on its consent agenda before taking final action during its May 2018 meetings.","plain_summary":"A citizen complained that the Elmhurst City Council was voting on multiple items at once using a 'consent agenda' without reading each item out loud first. The Attorney General's office agreed, stating that the law requires public bodies to identify each item on a consent agenda before voting on them. This ensures the public knows exactly what business is being conducted during a meeting.","holding":"The City Council violated section 2(e) of the Open Meetings Act by failing to publicly recite each item on the consent agenda before taking a vote.","legal_question":"Does section 2(e) of the Open Meetings Act require a public body to publicly recite each item included in a consent agenda before taking final action?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Elmhurst City Council","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The City Council's practice of voting on consent agendas without publicly reciting each individual item.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/53629, issued March 22, 2021.pdf","sha256":"d3ab8d17f259aa7c693ca1f1930386c658ce1bf3d7214ee4989d1fa75855225a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["consent agenda","public recital","meeting procedure","voting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 22, 2021\n\nVia electronic mail\n\nVia electronic mail\nMr. Donald J. Storino\n\nCity Attorney, City of Elmhurst\nStorino, Ramello &\n\nDurkin\n\n9501 West Devon Avenue\nRosemont, Illinois 60018\ndstorino@srd- law. com\n\nRE:\n\nDear\n\nOMA Request for Review — 2018 PAC 53629\n\nand Mr. Storino:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\nBureau\n\nconcludes\n\nthat the Elmhurst\n\nFor the reasons discussed below, the Public Access\n\nCity Council (\" City Council\") violated the public recital\n\nrequirement of section 2( e) of OMA1 in connection with its May 7, 2018, and May 21, 2018,\nmeetings.\n\nOn June 16, 2018,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau via e- mail alleging that the City Council violated OMA in connection with its\nMay 7, 2018, and May 21, 2018, meetings by failing to publicly recite each item on the consent\nagenda before final action was taken.\nspecifically alleged:\n\n15 ILCS 120/ 2( e) ( West 2016), as amended by Public Acts 100- 201, effective August 18, 2017;\n100- 465, effective August 31, 2017).\n\n500 South Second\n\nStreet, Springfield,\n\n100 West Randolph\n601 South\n\nUniversity\n\nStreet,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nChicago, Illinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 •\n\nFax: ( 217) 782- 7046\nFax: ( 312) 814- 3806\n\nAve., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 2\n\nIt seems to be longstanding practice for the Council to use a\nconsent agenda\" to vote on multiple items at the same time. I do\n\nnot contest this process, as it helps the Council work more\nefficiently by consolidating several matters into a single motion.\nHowever, before the Council votes to approve the consent agenda,\n\nit must precede that action with \" a public recital of the nature of\n\nthe matter being considered and other information that will inform\nthe public of the business being conducted\", in accordance with\nsection 2( e) of the OMA. Although the items on the consent\n\nagenda are posted on the meeting agenda, they are not read aloud\nduring the meeting.\nThe requirement to publish a meeting agenda is distinct from the\nrequirement to precede final action with a public recital. It is\npossible that a member of the public may attend the meeting\nwithout having read the meeting agenda. Therefore, those who\nattend the meeting must be informed of the business being\n\nconducted as part of the consent agenda. E21\nIn his Request for Review,\n\nincluded the website links to each meeting' s\n\nagenda and minutes as well as links to the YouTube recording of each meeting. He further\ndetailed the City Council's allegedly insufficient public recital as follows:\nAt the May 7, 2018 meeting] The Mayor presented the consent\nagenda to the Council for approval, and asked if any alderman\n\nwished to pull items off the consent agenda. Items 7. 6, 7. 7, and 7. 8\nwere\n\nremoved\n\nat the request\n\nof aldermen. The Mayor then said, \" I\n\nwill now entertain a motion to approve the consent agenda, minus\nitem 7. 6, item 7. 7, and item 7. 8.\" A roll call vote was conducted,\n\nand the Council approved the motion unanimously.\nThere was no public recital of the matters being considered in the\nconsent agenda.\n\nFurthermore,\n\nwhen items 7. 6, 7. 7, and 7. 8 were\n\nremoved from the consent agenda, there was no public recital of\nthe nature of the matters being removed from the consent agenda.\nAfter the consent agenda ( minus items 7. 6, 7. 7, and 7. 8) was\n\n2Letter from\nJune 16, 2018),\n\nat [ 1].\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 3\n\napproved, the City Clerk subsequently conducted a public recital\nonly for items 7. 6, 7. 7, and 7. 8.\n\nAt the May 21, 2018 meeting] The Mayor presented the consent\nagenda to the Council for approval, and asked if any alderman\nwished to pull items off the consent agenda. Items 5. 10 and 5. 18\nwere removed at the request of an alderman. The Mayor then said,\nI'll entertain a motion to approve the consent agenda, minus items\n5. 10 and 5. 18.\" A roll call vote was conducted,\n\nand the Council\n\napproved the motion unanimously.\nThere was no public recital of the matters being considered in the\nconsent agenda. Furthermore,\n\nwhen items 5. 10 and 5. 18 were\n\nremoved from the consent agenda, there was no public recital of\n\nthe nature of the matters being removed from the consent agenda.\nAfter the consent agenda ( minus items 5. 10 and 5. 18) was\n\napproved, the City Clerk subsequently conducted a public recital\n\nonly for items 5. 10 and 5. 18. 131\nOn June 21, 2018, the Public Access Bureau forwarded a copy of the Request for\n\nReview to Mayor Steven Morley, requesting a detailed written response to the allegations raised\nby\nRequest for Review. A second request for that information was sent to Mayor\nMorley on July 12, 2018. On July 25, 2018, this office received the City Council's response to\nthe Request for Review and forwarded that response to\nwho did not submit a reply.\nANALYSIS\nSection 1 of OMA ( 5 ILCS 120/ 1 ( West 2018)) declares that \"[ i]t is the public\n\npolicy of this State that public bodies exist to aid in the conduct of the people' s business and that\nthe people\n\nhave a right to be informed\n\nas\n\nto the conduct of their business.\"\n\nSection 2( e) of OMA\n\nprovides: \" No final action may be taken at a closed meeting. Final action shall be preceded by a\n\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\"\n\n3Letter from\nJune 16, 2018),\n\nat [ 1- 2].\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 4\n\nIn Board ofEducation ofSpringfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, 77 N. E. 3d 625, 633 ( 2017), the Illinois Supreme Court decided that final\n\naction must be preceded by a public recital during the same meeting at which action is taken.\nThe Court explained that \"[ t] he language of section 2( e) does not mention an explanation,\n\nthe\n\nsignificance of the action being considered, or the attendees' understanding. Rather, the plain\nmeaning of the phrase 'public recital of the nature of the matter being considered' is that the\npublic body must state the essence of the matter under consideration, its character, or its\nidentity.\" Springfield School District, 2017 IL 120343, ¶ 46, 77 N.E. 3d at 633- 34. The Court\nfurther advised that \"while the 'nature of the matter' may be recited in nonspecific terms ( the\napproval of a loan, a contract,\n\na purchase,\n\na\n\npolicy,\n\nor a resolution), '\n\nother information' is\n\nnecessary to inform the public of the specific item of business ( the purpose of the loan, the\nsubject of the contract, the type of property being purchased, the title of the policy, or the\nSpringfield School District, 2017 IL 120343, ¶ 50, 77 N. E. 3d at 634.\npurpose of the resolution).\"\nThe Court rejected as \" time consuming and impractical[ ] * * *\nany suggestion that a public\nrecital of 'key terms' is required[,]\"\n\na] public body may choose to provide such\ninformation in its recital at the open meeting but is not compelled to do so by section 2( e).\"\nstating that \"[\n\nSpringfield School District, 2017 IL 120343, ¶ 61, 77 N. E. 3d at 635- 36. Rather, the Court held,\nthe recital must announce the nature of the matter under consideration,\n\nwith sufficient detail to\n\nidentify the particular transaction or issue, but need not provide an explanation of its terms or its\nsignificance.\"\n\nSpringfield School District, 2017 IL 120343, ¶ 64, 77 N. E. 3d at 636.\n\nIn its answer to this office, the City Council did not dispute\nsummary of\nthe City Council meeting or deny that it failed to specifically announce the individual items on\nthe consent agendas before the votes. The City Council suggested, and this office agrees, that\nthis is a matter of first impression. The City Council asserted that requiring public recital of\nindividual consent agenda items\n\nwould appear to be contrary to the legislative intent of the omnibus\nprocedures provided in 65 ILCS 5/ 3. 1- 40- 40 allowing for the\nefficient conduct of municipal business of multiple matters at one\n\ntime. In the case of the City Council's May 7, 2018, consent\nagenda, assuming\nposition is correct, this would represent\nan articulation of 30 individual items one right after the other\nwithout discussion before a motion to approve could be\n\nentertained.\n\nSuch a procedure would seem to frustrate the\n\nlegislative intent of the omnibus procedures provided in 65 ILCS\n5/ 3. 1- 40- 40. 141\n\n4Letter from Donald\nGeneral,\n\nOffice\n\nof the Illinois\n\nAttorney\n\nStorino,\nGeneral,\n\nStorino\nPublic\n\nRamello &\nAccess\n\nDurkin, to Matt Hartman, Assistant Attorney\nJuly 25, 2018), at 3.\n\nBureau (\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 5\n\nThis office's review of the relevant portions of the video recordings of the City\nCouncil's May 7, 2018, and May 21, 2018, meetings confirmed that the City Council's discussion\nand vote on the consent agendas align with the descriptions\nand the City Council\nprovided to this office. At each meeting, the Mayor asked if any aldermen wished to pull items\noff the consent agenda and then entertained a motion to approve the consent agenda minus the\n\npulled items. After a motion had been made and seconded, roll call votes were taken on each\nconsent agenda without any recital of the individual items contained thereon. Each consent\nagenda contained a combination of over two dozen items including minutes, accounts payable,\nreappointments,\n\nreferrals,\n\nreports,\n\nordinances,\n\nand resolutions.'\n\nIn addition\n\nto the consent\n\nagendas, the May 7, 2018 and May 21, 2018, agendas each contained a \" Reports &\nRecommendations\" item (featuring reports of Mayor Morley and City Manager Grabowski) and\n\na \" Resolutions\" item ( with only one resolution listed for consideration). 6 The May 21, 2018,\nagenda also contained an \" Ordinances\"\n\nitem, with two ordinances specified for consideration.'\n\nUnder the Illinois Supreme Court' s analysis in Springfield School District, this\n\noffice must determine whether the City Council adequately identified the nature of the matter\nunder consideration and the details sufficient to identify the particular issue. The City Council\ndid not identify either the nature of the matters under consideration (the approval of minutes,\nreports, ordinances, and resolutions) or any details sufficient to identify the particular (and\nvaried) issues presented. In addition, the consent agendas each included an extensive number of\nitems ( 30 on the May 7, 2018, agenda ( including 5 ordinances and 9 resolutions) and 28 on the\nMay 21, 2018, agenda ( including 10 ordinances and 2 resolutions)). Conducting the City\nCouncil' s substantive business via consent agenda, without any public recital, is contrary to the\n\npublic policy underlying OMA: that the people have a right to be informed as to the conduct of\ntheir business.\n\nThis office appreciates the City Council' s contention that requiring public recital\nwould seemingly frustrate the legislative intent of the omnibus procedures provided in section\n3. 1- 40- 40 of the Municipal Code ( 65 ILCS 5/ 3. 1- 40- 40 ( West 2018)), which allows for the\n\nefficient conduct of multiple matters of municipal business at one time. That provision,\n\nhowever, deals specifically with voting:\n5Elmhurst City Council May 7, 2018, and May 21, 2018, meeting agendas, available at\nhttps:// go.boarddocs. com/il/coe/ Board.nsf/Public.\n\n6Elmhurst City Council May 7, 2018, and May 21, 2018, meeting agendas, available at\nhttps:// go.boarddocs. com/ il/coe/ Board.nsf/Public.\n\n7Elmhurst City Council May 21, 2018, meeting agenda, available at\nhttps:// go. boarddocs.\n\ncom/\n\nil/ coeBoard. nsf/ Public.\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 6\n\nSec. 3. 1- 40-40. Vote required. The passage of all\nordinances for whatever purpose, and of any resolution or motion\n\ni) to create any liability against a city or (ii) for the expenditure or\nappropriation of its money shall require the concurrence of a\n\nmajority of all members then holding office on the city council,\nincluding the mayor, unless otherwise expressly provided by this\nCode or any other Act governing the passage of any ordinance,\nresolution,\n\nor motion. * * *\n\nIn addition,\n\nthe corporate\n\nauthorities\n\nat any meeting may by unanimous consent take a single vote by\nyeas and nays on the several questions of the passage of any 2 or\nmore of the designated ordinances, orders, resolutions, or motions\n\nplaced together for voting purposes in a single group. The single\nvote shall be entered separately in the journal under the designation\nomnibus\n\nvote\",\n\nand in that event the clerk may enter the words\n\nomnibus vote\" or \" consent agenda\" in the journal in each case\ninstead of entering the names of the members of city council\n\nvoting \" yea\" and those voting \" nay\" on the passage of each of the\ndesignated ordinances,\n\norders, resolutions,\n\nand motions included in\n\nthe omnibus group or consent agenda. The taking of a single or\nomnibus vote and the entries of the words \" omnibus vote\" or\n\nconsent agenda\" in the journal shall be a sufficient compliance\nwith the requirements of this Section to all intents and purposes\nand with like effect as if the vote in each case had been taken\n\nseparately by yeas and nays on the question of the passage of each\nordinance, order, resolution, and motion included in the omnibus\n\ngroup and separately recorded in the journal. Likewise, the yeas\nand nays shall be taken upon the question of the passage of any\n\nother resolution or motion at the request of any alderman and shall\nbe recorded in the journal. E81\n\nWhile section 3. 1- 40- 40 clearly authorizes municipalities to utilize consent agendas and conduct\n\nomnibus votes to run meetings more efficiently, it makes no mention of exempting\nmunicipalities from compliance with section 2( e) of OMA. If the General Assembly had\nintended to carve out such an exception for consent agendas, it would have done so expressly. In\n\n865 ILCS\n\n5/ 3. 1- 40- 40 ( West 2018).\n\n\fMr. Donald Storino\nMarch 22, 2021\nPage 7\n\nlight of the public policy underlying OMA, 9 and the Illinois Supreme Court' s analysis in\nSpringfield School District, this office concludes that section 2( e) of OMA requires a public\nrecital of each item in a consent agenda before a vote.\n\nAs the Court emphasized, the recital\n\nmerely must identify each transaction or issue a public body is acting upon; a description of the\nsignificance or key terms of each item is not required. Springfield School District, 2017 IL\n120343, ¶ 64, 77 N.E. 3d at 636.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n217- 782- 9054, sborland@atg.state. il.us, or the Springfield address on the first page. This letter\nserves to close this matter.\n\nVery truly yours,\n\nSUZANNE DENNIS BORLAND\n\nAssistant Attorney General\nPublic Access Bureau\n\n53629 o 2e pub recital improper mun\n\n9See I11. Att'y Gen. Req. Rev. 65194, issued January 8, 2021, at 8 ( encouraging public bodies to\nprovide additional details in public recitals to better inform the public of the business being conducted when\npractical,\n\nwhich\n\nwould\n\nsignificantly\n\nenhance\n\nthe public' s understanding\n\nof actions\n\nunder\n\nconsideration.)\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's consent-agenda voting procedure","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53629/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 22, 2021\n\nVia electronic mail\n\nVia electronic mail\nMr. Donald J. Storino\n\nCity Attorney, City of Elmhurst\nStorino, Ramello &\n\nDurkin\n\n9501 West Devon Avenue\nRosemont, Illinois 60018\ndstorino@srd- law. com\n\nRE:\n\nDear\n\nOMA Request for Review — 2018 PAC 53629\n\nand Mr. Storino:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\nBureau\n\nconcludes\n\nthat the Elmhurst\n\nFor the reasons discussed below, the Public Access\n\nCity Council (\" City Council\") violated the public recital\n\nrequirement of section 2(e) of OMA1 in connection with its May 7, 2018, and May 21, 2018,\nmeetings.\n\nOn June 16, 2018,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau via e- mail alleging that the City Council violated OMA in connection with its\nMay 7, 2018, and May 21, 2018, meetings by failing to publicly recite each item on the consent\nagenda before final action was taken.\nspecifically alleged:\n\n15 ILCS 120/ 2(e) (West 2016), as amended by Public Acts 100- 201, effective August 18, 2017;\n100- 465, effective August 31, 2017).\n\n500 South Second\n\nStreet, Springfield,\n\n100 West Randolph\n601 South\n\nUniversity\n\nStreet,\n\nIllinois 62701 • (217) 782- 1090 • TTY: (877) 844- 5461 •\n\nChicago, Illinois 60601 • (312) 814- 3000 • TTY: (800) 964- 3013 •\n\nFax: (217) 782- 7046\nFax: (312) 814- 3806\n\nAve., Carbondale, Illinois 62901 • (618) 529- 6400 • TTY: (877) 675- 9339 • Fax: (618) 529- 6416\n\nIt seems to be longstanding practice for the Council to use a\nconsent agenda\" to vote on multiple items at the same time. I do\n\nnot contest this process, as it helps the Council work more\nefficiently by consolidating several matters into a single motion.\nHowever, before the Council votes to approve the consent agenda,\n\nit must precede that action with \" a public recital of the nature of\n\nthe matter being considered and other information that will inform\nthe public of the business being conducted\", in accordance with\nsection 2(e) of the OMA. Although the items on the consent\n\nagenda are posted on the meeting agenda, they are not read aloud\nduring the meeting.\nThe requirement to publish a meeting agenda is distinct from the\nrequirement to precede final action with a public recital. It is\npossible that a member of the public may attend the meeting\nwithout having read the meeting agenda. Therefore, those who\nattend the meeting must be informed of the business being\n\nconducted as part of the consent agenda. E21\nIn his Request for Review,\n\nincluded the website links to each meeting's\n\nagenda and minutes as well as links to the YouTube recording of each meeting. He further\ndetailed the City Council's allegedly insufficient public recital as follows:\nAt the May 7, 2018 meeting] The Mayor presented the consent\nagenda to the Council for approval, and asked if any alderman\n\nwished to pull items off the consent agenda. Items 7. 6, 7. 7, and 7. 8\nwere\n\nremoved\n\nat the request\n\nof aldermen. The Mayor then said, \" I\n\nwill now entertain a motion to approve the consent agenda, minus\nitem 7. 6, item 7. 7, and item 7. 8.\" A roll call vote was conducted,\n\nand the Council approved the motion unanimously.\nThere was no public recital of the matters being considered in the\nconsent agenda.\n\nFurthermore,\n\nwhen items 7. 6, 7. 7, and 7. 8 were\n\nremoved from the consent agenda, there was no public recital of\nthe nature of the matters being removed from the consent agenda.\n\napproved, the City Clerk subsequently conducted a public recital\nonly for items 7. 6, 7. 7, and 7. 8.\n\nAt the May 21, 2018 meeting] The Mayor presented the consent\nagenda to the Council for approval, and asked if any alderman\nwished to pull items off the consent agenda. Items 5. 10 and 5. 18\nwere removed at the request of an alderman. The Mayor then said,\nI'll entertain a motion to approve the consent agenda, minus items\n5. 10 and 5. 18.\" A roll call vote was conducted,\n\nand the Council\n\napproved the motion unanimously.\nThere was no public recital of the matters being considered in the\nconsent agenda. Furthermore,\n\nwhen items 5. 10 and 5. 18 were\n\nremoved from the consent agenda, there was no public recital of\n\nthe nature of the matters being removed from the consent agenda.\nAfter the consent agenda (minus items 5. 10 and 5. 18) was\n\napproved, the City Clerk subsequently conducted a public recital\n\nonly for items 5. 10 and 5. 18. 131\nOn June 21, 2018, the Public Access Bureau forwarded a copy of the Request for\n\nReview to Mayor Steven Morley, requesting a detailed written response to the allegations raised\nby\nRequest for Review. A second request for that information was sent to Mayor\nMorley on July 12, 2018. On July 25, 2018, this office received the City Council's response to\nthe Request for Review and forwarded that response to\nwho did not submit a reply.\nANALYSIS\nSection 1 of OMA (5 ILCS 120/ 1 (West 2018)) declares that \"[ i]t is the public\n\npolicy of this State that public bodies exist to aid in the conduct of the people's business and that\nthe people\n\nhave a right to be informed\n\nas\n\nto the conduct of their business.\"\n\nSection 2(e) of OMA\n\nprovides: \" No final action may be taken at a closed meeting. Final action shall be preceded by a\n\npublic recital of the nature of the matter being considered and other information that will inform\n\nIn Board ofEducation ofSpringfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, 77 N. E. 3d 625, 633 (2017), the Illinois Supreme Court decided that final\n\naction must be preceded by a public recital during the same meeting at which action is taken.\nThe Court explained that \"[ t] he language of section 2(e) does not mention an explanation,\n\nthe\n\nsignificance of the action being considered, or the attendees' understanding. Rather, the plain\nmeaning of the phrase 'public recital of the nature of the matter being considered' is that the\npublic body must state the essence of the matter under consideration, its character, or its\nidentity.\" Springfield School District, 2017 IL 120343, ¶ 46, 77 N.E. 3d at 633- 34. The Court\nfurther advised that \"while the 'nature of the matter' may be recited in nonspecific terms (the\napproval of a loan, a contract,\n\na purchase,\n\na\n\npolicy,\n\nor a resolution), '\n\nother information' is\n\nnecessary to inform the public of the specific item of business (the purpose of the loan, the\nsubject of the contract, the type of property being purchased, the title of the policy, or the\nSpringfield School District, 2017 IL 120343, ¶ 50, 77 N. E. 3d at 634.\npurpose of the resolution).\"\nThe Court rejected as \" time consuming and impractical[ ] * * *\nany suggestion that a public\nrecital of 'key terms' is required[,]\"\n\na] public body may choose to provide such\ninformation in its recital at the open meeting but is not compelled to do so by section 2(e).\"\nstating that \"[\n\nSpringfield School District, 2017 IL 120343, ¶ 61, 77 N. E. 3d at 635- 36. Rather, the Court held,\nthe recital must announce the nature of the matter under consideration,\n\nwith sufficient detail to\n\nidentify the particular transaction or issue, but need not provide an explanation of its terms or its\nsignificance.\"\n\nSpringfield School District, 2017 IL 120343, ¶ 64, 77 N. E. 3d at 636.\n\nIn its answer to this office, the City Council did not dispute\nsummary of\nthe City Council meeting or deny that it failed to specifically announce the individual items on\nthe consent agendas before the votes. The City Council suggested, and this office agrees, that\nthis is a matter of first impression. The City Council asserted that requiring public recital of\nindividual consent agenda items\n\nwould appear to be contrary to the legislative intent of the omnibus\nprocedures provided in 65 ILCS 5/ 3. 1- 40- 40 allowing for the\nefficient conduct of municipal business of multiple matters at one\n\ntime. In the case of the City Council's May 7, 2018, consent\nagenda, assuming\nposition is correct, this would represent\nan articulation of 30 individual items one right after the other\nwithout discussion before a motion to approve could be\n\nentertained.\n\nSuch a procedure would seem to frustrate the\n\nlegislative intent of the omnibus procedures provided in 65 ILCS\n5/ 3. 1- 40- 40. 141\n\n4 Letter from Donald\nGeneral,\n\nOffice\n\nof the Illinois\n\nAttorney\n\nStorino,\nGeneral,\n\nStorino\n\nThis office's review of the relevant portions of the video recordings of the City\nCouncil's May 7, 2018, and May 21, 2018, meetings confirmed that the City Council's discussion\nand vote on the consent agendas align with the descriptions\nand the City Council\nprovided to this office. At each meeting, the Mayor asked if any aldermen wished to pull items\noff the consent agenda and then entertained a motion to approve the consent agenda minus the\n\npulled items. After a motion had been made and seconded, roll call votes were taken on each\nconsent agenda without any recital of the individual items contained thereon. Each consent\nagenda contained a combination of over two dozen items including minutes, accounts payable,\nreappointments,\n\nreferrals,\n\nreports,\n\nordinances,\n\nand resolutions.'\n\nIn addition\n\nto the consent\n\nagendas, the May 7, 2018 and May 21, 2018, agendas each contained a \" Reports &\nRecommendations\" item (featuring reports of Mayor Morley and City Manager Grabowski) and\n\na \" Resolutions\" item (with only one resolution listed for consideration). 6 The May 21, 2018,\nagenda also contained an \" Ordinances\"\n\nitem, with two ordinances specified for consideration.'\n\nUnder the Illinois Supreme Court's analysis in Springfield School District, this\n\noffice must determine whether the City Council adequately identified the nature of the matter\nunder consideration and the details sufficient to identify the particular issue. The City Council\ndid not identify either the nature of the matters under consideration (the approval of minutes,\nreports, ordinances, and resolutions) or any details sufficient to identify the particular (and\nvaried) issues presented. In addition, the consent agendas each included an extensive number of\nitems (30 on the May 7, 2018, agenda (including 5 ordinances and 9 resolutions) and 28 on the\nMay 21, 2018, agenda (including 10 ordinances and 2 resolutions)). Conducting the City\nCouncil's substantive business via consent agenda, without any public recital, is contrary to the\n\npublic policy underlying OMA: that the people have a right to be informed as to the conduct of\ntheir business.\n\nThis office appreciates the City Council's contention that requiring public recital\nwould seemingly frustrate the legislative intent of the omnibus procedures provided in section\n3. 1- 40- 40 of the Municipal Code (65 ILCS 5/ 3. 1- 40- 40 (West 2018)), which allows for the\n\nefficient conduct of multiple matters of municipal business at one time. That provision,\n\nhowever, deals specifically with voting:\n5 Elmhurst City Council May 7, 2018, and May 21, 2018, meeting agendas, available at\nhttps:// go.boarddocs. com/il/coe/ Board.nsf/Public.\n\n6 Elmhurst City Council May 7, 2018, and May 21, 2018, meeting agendas, available at\n\nSec. 3. 1- 40-40. Vote required. The passage of all\nordinances for whatever purpose, and of any resolution or motion\n\ni) to create any liability against a city or (ii) for the expenditure or\nappropriation of its money shall require the concurrence of a\n\nmajority of all members then holding office on the city council,\nincluding the mayor, unless otherwise expressly provided by this\nCode or any other Act governing the passage of any ordinance,\nresolution,\n\nor motion. * * *\n\nIn addition,\n\nthe corporate\n\nauthorities\n\nat any meeting may by unanimous consent take a single vote by\nyeas and nays on the several questions of the passage of any 2 or\nmore of the designated ordinances, orders, resolutions, or motions\n\nplaced together for voting purposes in a single group. The single\nvote shall be entered separately in the journal under the designation\nomnibus\n\nvote\",\n\nand in that event the clerk may enter the words\n\nomnibus vote\" or \" consent agenda\" in the journal in each case\ninstead of entering the names of the members of city council\n\nvoting \" yea\" and those voting \" nay\" on the passage of each of the\ndesignated ordinances,\n\norders, resolutions,\n\nand motions included in\n\nthe omnibus group or consent agenda. The taking of a single or\nomnibus vote and the entries of the words \" omnibus vote\" or\n\nconsent agenda\" in the journal shall be a sufficient compliance\nwith the requirements of this Section to all intents and purposes\nand with like effect as if the vote in each case had been taken\n\nseparately by yeas and nays on the question of the passage of each\nordinance, order, resolution, and motion included in the omnibus\n\ngroup and separately recorded in the journal. Likewise, the yeas\nand nays shall be taken upon the question of the passage of any\n\nother resolution or motion at the request of any alderman and shall\nbe recorded in the journal. E81\n\nWhile section 3. 1- 40- 40 clearly authorizes municipalities to utilize consent agendas and conduct\n\nomnibus votes to run meetings more efficiently, it makes no mention of exempting\nmunicipalities from compliance with section 2(e) of OMA. If the General Assembly had\nintended to carve out such an exception for consent agendas, it would have done so expressly. In\n\nlight of the public policy underlying OMA, 9 and the Illinois Supreme Court's analysis in\nSpringfield School District, this office concludes that section 2(e) of OMA requires a public\nrecital of each item in a consent agenda before a vote.\n\nAs the Court emphasized, the recital\n\nmerely must identify each transaction or issue a public body is acting upon; a description of the\nsignificance or key terms of each item is not required. Springfield School District, 2017 IL\n120343, ¶ 64, 77 N.E. 3d at 636.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n217- 782- 9054, sborland@atg.state. il.us, or the Springfield address on the first page. This letter\nserves to close this matter.\n\nVery truly yours,\n\nSUZANNE DENNIS BORLAND\n\nAssistant Attorney General\nPublic Access Bureau\n\n53629 o 2e pub recital improper mun\n\n9 See I11. Att'y Gen. Req. Rev. 65194, issued January 8, 2021, at 8 (encouraging public bodies to\nprovide additional details in public recitals to better inform the public of the business being conducted when\npractical,\n\nwhich\n\nwould\n\nsignificantly\n\nenhance\n\nthe public's understanding\n\nof actions\n\nunder\n\nconsideration.)"}
{"id":1260,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-06-28","case_number":null,"request_numbers":["53636"],"title":"Algonquin Township Board's agenda notice for audit resolution found sufficient under OMA","filename":"53636, issued June 28, 2018.pdf","rel_path":null,"word_count":1053,"summary":"The requester alleged that the Algonquin Township Board violated the Open Meetings Act by voting on a resolution not properly listed on the meeting agenda. The PAC determined that the agenda item provided sufficient notice of the general subject matter and closed the file.","plain_summary":"This determination letter addresses whether the Algonquin Township Board violated section 2.02(c) of the Open Meetings Act by failing to adequately describe on its meeting agenda a resolution concerning audit authority over bill payments. The Public Access Bureau concluded that no violation occurred because the agenda item, which referenced a resolution requiring attorneys doing business with the Township to carry malpractice insurance, sufficiently conveyed the general subject matter of the resolution ultimately adopted, even though the resolution's title inaccurately described its substance. The Bureau applied the established rule that section 2.02(c) requires only disclosure of the general subject matter of anticipated final action, not its specific details or ultimate wording. Because the agenda adequately notified the public of the resolution's intended effect, the Bureau found no basis to conclude the Board violated OMA and closed the file without further action.","holding":"An OMA section 2.02(c) agenda notice is sufficient if it identifies the general subject matter or intended effect of an anticipated resolution, even if the resolution's eventual title does not precisely match its substantive terms.","legal_question":"Whether the Algonquin Township Board violated section 2.02(c) of the Open Meetings Act by failing to provide sufficient notice of a resolution on its meeting agenda.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Algonquin Township Board","requesting_party":"Kirk Allen","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of an agenda item regarding a resolution requiring township-hired attorneys to carry malpractice insurance.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/53636, issued June 28, 2018.pdf","sha256":"4c7352cd68d688b77a23187406426f91af0ec0388c0dd0ab467269637f364af0","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","Open Meetings Act","township board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nJune 28, 2018\n\nVia electronic mail\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\n\nRE: OMA Request for Review —2018 PAC 53636\nDear Mr. Allen:\n\nThe Public Access Bureau has received your Request for Review alleging a\npotential violation of the Open Meetings Act ( OMA) ( 5 ILCS 120/ 1 et seq. ( West 2016)) by the\nAlgonquin Township Board ( Board).\nwhich this office\n\ncould conclude\n\nYour submission, however, does not include facts from\n\nthat the Board violated\n\nOMA.\n\nSection 3. 5( a) of OMA (5 ILCS 120/ 3. 5( a) ( West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. The\n\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. ( Emphasis added.)\n\nYour Request for Review alleges that at its June 13, 2018, meeting the Board\nadopted a resolution pertaining to their authority regarding the audit and payment of bills\n\nwithout placing that matter on the agenda as required by law. i' ( Emphasis in original.) Your\nsubmission included what appears to be an unsigned copy of the resolution, which is entitled:\nE-mail from Kirk Allen to Public Access [ Bureau, Office of the Attorney General] ( June 18,\n2018).\n\n500 South Second Street, Springfield, Illinois 62701 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n1001\n\nEast Main, Carbondale, Illinois 62901 • (\n\n217) 782- 1090 •\n312) 814- 3000 •\n\n618) 529- 6400 •\n\nTTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\nTTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\nTTY: ( 618)\n\n529- 6403 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMr. Kirk Allen\nJune 28, 2018\nPage 2\n\nResolution Recognizing Board' s Authorities [ sic] Regarding the Audit and Payment of Bills.\"\nThe resolution states that the Board has authority, pursuant to section 80- 10 of the Township\nCode ( 60 ILCS 1/ 80- 10 West 2016)) to audit the Township' s and Township Road District' s\naccounts before paying bills, and that the Board will not approve the payment of bills for\nattorneys unless they carry at least $ 1 million in professional liability insurance and provide a\nrelease authorizing the Township to confirm their insurance coverage is in effect. You also\n\nprovided a copy of the June 13, 2018, meeting agenda, which includes the following item:\nResolution requesting\n\nall\n\nattorney'\n\ns [ sic]\n\ndoing business with the Algonquin Township and\n\nHwy. Dept. must carry malpractice insurance.\"\n\nSection 2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West 2016)) provides, in pertinent\n\npart: \" Any agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\" The Public Access\nBureau has determined that \" the General Assembly' s use of the term 'general subject matter'\nsignifies that a meeting agenda must set forth the main element( s), rather than the specific\n\ndetails, of an item on which the public body intends to take final action.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 ( determining that agenda item\nappointment of the city administrator\" did not violate section 2. 02( c) of OMA). Additionally,\nthe Public Access Bureau has determined that the language of section 2. 02( c) of OMA \" requires\n\na public body' s agenda to identify the general subject matter of final action —not what particular\n\naction will be taken by a public body.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39177, issued\nFebruary 2, 2016, at 3- 4 ( determining that agenda item \" Illinois Rt. 53/ 120 Project\nEnvironmental Impact Statement\" did not violate section 2. 02( c) of OMA because by inclusion\n\non the agenda, it could be inferred that the Board anticipated taking final action on the matter).\nThe title of the resolution that the Board approved at its June 13, 2018, meeting,\narguably, does not accurately reflect its substance. The resolution identifies the source of the\n\nBoard' s authority to audit and pay bills as section 80- 10 of the Township Code, which provides\nthat \"[ t] he township board shall meet at the township clerk's office for the purpose of examining\nand\n\nauditing the township\n\nand\n\nroad\n\ndistrict accounts\n\nbefore any bills * * *\n\nare paid[.] * * *\n\nThe\n\ntownship board may consider and approve bills individually or in a summary statement of any\nnumber of bills.\" The substance of the resolution, however, concerns professional lability\n\ninsurance, a type of which is malpractice insurance. 3 The resolution requires the Board to verify\nthat attorneys who provided legal services carry professional liability insurance of at least $ 1\nmillion before the Board exercises its statutory authority to approve the payment of bills for\n2Algonquin Township Board,\n\nunnumbered\n\nAgenda Item under \" New Business[,]\"\n\nMeeting ( June\n\n13, 2018).\n\nMalpractice insurance is defined as a \"[ t] ype of liability insurance which protects professional\npeople ( e. g. doctors, lawyers, accountants) against claims of negligence brought against them. Black's Law\ned. 1979).\nDictionary 723 (\n5th\n\n\fr.Kirk Allen\n\nJune 28, 2018\nPage 3\n\nthose attorneys' services. Even though the title of the resolution does not refer to professional\n\nliability insurance or malpractice insurance, the Board's agenda item clearly identifies the\nintended effect of the resolution— that attorneys hired by the Township carry malpractice\ninsurance. Because the Board provided sufficient advance notice of the general subject matter of\nthe resolution under section 2. 02( c) of OMA, this office has determined that no further action is\nwarranted as to this matter.\n\nThis file is closed. If you have questions, please contact me at ( 312) 814- 6756.\nVery truly yours,\n\nSTEVE SLIVERMAN\nBureau Chief\nPublic Access Bureau\n\n53636 o no fi war twp\ncc:\n\nVia electronic mail\n\nThe Honorable Charles A. Lutzlow, Jr.\n\nTownship Supervisor\nAlgonquin Township\n3702 Highway 14\nCrystal Lake, Illinois 60014\nsupervisor@algonquintownship.\n\ncom\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An agenda item on a malpractice insurance resolution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53636/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nJune 28, 2018\n\nVia electronic mail\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\n\nRE: OMA Request for Review —2018 PAC 53636\nDear Mr. Allen:\n\nThe Public Access Bureau has received your Request for Review alleging a\npotential violation of the Open Meetings Act (OMA) (5 ILCS 120/ 1 et seq. (West 2016)) by the\nAlgonquin Township Board (Board).\nwhich this office\n\ncould conclude\n\nYour submission, however, does not include facts from\n\nthat the Board violated\n\nOMA.\n\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. The\n\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\n\nYour Request for Review alleges that at its June 13, 2018, meeting the Board\nadopted a resolution pertaining to their authority regarding the audit and payment of bills\n\nwithout placing that matter on the agenda as required by law. i' (Emphasis in original.) Your\nsubmission included what appears to be an unsigned copy of the resolution, which is entitled:\nE-mail from Kirk Allen to Public Access [ Bureau, Office of the Attorney General] (June 18,\n2018).\n\nResolution Recognizing Board's Authorities [ sic] Regarding the Audit and Payment of Bills.\"\nThe resolution states that the Board has authority, pursuant to section 80- 10 of the Township\nCode (60 ILCS 1/ 80- 10 West 2016)) to audit the Township's and Township Road District's\naccounts before paying bills, and that the Board will not approve the payment of bills for\nattorneys unless they carry at least $ 1 million in professional liability insurance and provide a\nrelease authorizing the Township to confirm their insurance coverage is in effect. You also\n\nprovided a copy of the June 13, 2018, meeting agenda, which includes the following item:\nResolution requesting\n\nall\n\nattorney's [ sic]\n\ndoing business with the Algonquin Township and\n\nHwy. Dept. must carry malpractice insurance.\"\n\nSection 2. 02(c) of OMA (5 ILCS 120/ 2. 02(c) (West 2016)) provides, in pertinent\n\npart: \" Any agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\" The Public Access\nBureau has determined that \" the General Assembly's use of the term 'general subject matter'\nsignifies that a meeting agenda must set forth the main element(s), rather than the specific\n\ndetails, of an item on which the public body intends to take final action.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 (determining that agenda item\nappointment of the city administrator\" did not violate section 2. 02(c) of OMA). Additionally,\nthe Public Access Bureau has determined that the language of section 2. 02(c) of OMA \" requires\n\na public body's agenda to identify the general subject matter of final action —not what particular\n\naction will be taken by a public body.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39177, issued\nFebruary 2, 2016, at 3- 4 (determining that agenda item \" Illinois Rt. 53/ 120 Project\nEnvironmental Impact Statement\" did not violate section 2. 02(c) of OMA because by inclusion\n\non the agenda, it could be inferred that the Board anticipated taking final action on the matter).\nThe title of the resolution that the Board approved at its June 13, 2018, meeting,\narguably, does not accurately reflect its substance. The resolution identifies the source of the\n\nBoard's authority to audit and pay bills as section 80- 10 of the Township Code, which provides\nthat \"[ t] he township board shall meet at the township clerk's office for the purpose of examining\nand\n\nauditing the township\n\nand\n\nroad\n\ndistrict accounts\n\nbefore any bills * * *\n\nare paid[.] * * *\n\nThe\n\ntownship board may consider and approve bills individually or in a summary statement of any\nnumber of bills.\" The substance of the resolution, however, concerns professional lability\n\ninsurance, a type of which is malpractice insurance. 3 The resolution requires the Board to verify\nthat attorneys who provided legal services carry professional liability insurance of at least $ 1\nmillion before the Board exercises its statutory authority to approve the payment of bills for\n2 Algonquin Township Board,\n\nunnumbered\n\nAgenda Item under \" New Business[,]\"\n\nMeeting (June\n\n13, 2018).\n\nMalpractice insurance is defined as a \"[ t] ype of liability insurance which protects professional\npeople (e. g. doctors, lawyers, accountants) against claims of negligence brought against them. Black's Law\n\nthose attorneys' services. Even though the title of the resolution does not refer to professional\n\nliability insurance or malpractice insurance, the Board's agenda item clearly identifies the\nintended effect of the resolution— that attorneys hired by the Township carry malpractice\ninsurance. Because the Board provided sufficient advance notice of the general subject matter of\nthe resolution under section 2. 02(c) of OMA, this office has determined that no further action is\nwarranted as to this matter.\n\nThis file is closed. If you have questions, please contact me at (312) 814- 6756.\nVery truly yours,\n\nSTEVE SLIVERMAN\nBureau Chief\nPublic Access Bureau\n\n53636 o no fi war twp\ncc:\n\nVia electronic mail\n\nThe Honorable Charles A. Lutzlow, Jr.\n\nTownship Supervisor\nAlgonquin Township\n3702 Highway 14\nCrystal Lake, Illinois 60014\nsupervisor@algonquintownship.\n\ncom"}
{"id":1261,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-01-09","case_number":null,"request_numbers":["53675"],"title":"Vermilion Airport Board violated OMA by taking actions not on the agenda","filename":"53675, issued January 9, 2020.pdf","rel_path":null,"word_count":1148,"summary":"The requester alleged that the Vermilion Regional Airport Authority Board took final action to terminate and hire an airport manager without including those items on the meeting agenda. The PAC determined that the Board violated the Open Meetings Act by failing to provide advance notice of these actions on its agenda.","plain_summary":"A citizen complained that an airport board accepted a manager's resignation and appointed an acting manager without listing those decisions on the meeting agenda as required by law. The Attorney General's office agreed that the board violated the Open Meetings Act by failing to give the public proper notice of these actions. Because the board later corrected the hiring decision at a subsequent meeting, the PAC closed the file without requiring further action.","holding":"The Vermilion Regional Airport Authority Board violated the Open Meetings Act by failing to provide advance notice of final actions taken during its June 19, 2018, meeting.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on matters not listed on the meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Vermilion Regional Airport Authority Board of Commissioners","requesting_party":"Mr. John Kraft","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board failed to include the termination of an airport manager and the appointment of an acting manager on the meeting agenda.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/53675, issued January 9, 2020.pdf","sha256":"c99a5b1efca79df2b79cb825e38ba2a5a727259dad4b5cbf4da0c0571d8340b1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","final action","airport board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY\n\nGENERAL\n\nJanuary 9, 2020\n\nMr. John Kraft\n\nMr. William Ingram\nCommissioner and Interim Chairman\n\nVermilion Regional Airport Authority\nBoard of Commissioners\nVermilion Regional Airport\n\n[street address redacted for site publication -- see original PDF]\nRE:\n\nOMA Request for Review —2019 PAC 53675\n\nDear Mr. Kraft and Mr. Ingram:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons stated below, this office concludes\n\nthat the Vermilion Regional Airport Authority ( Airport Authority) Board of Commissioners\nBoard) violated OMA by failing to provide the public with advance notice of action taken\nduring the Board' s June 19, 2018, meeting.\nIn his Request for Review, Mr. John Kraft alleged that at its June 19, 2018,\n\nmeeting, the Board took final action to terminate its airport manager and hire a new airport\nmanager without providing advance notice of those final actions on the meeting agenda. He also\nquestioned whether final actions on those matters were taken in closed session.\n\nOn June 26, 2018, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide copies of the agenda, open and closed session meeting minutes ( draft\nform if necessary), and the closed session verbatim recording, if any, of the Board' s June 19,\n2018, meeting. We also requested a written response to Mr. Kraft' s allegations that addresses\nwhether the Board took final action to hire and/ or fire the airport manager during the meeting.\n\n500 South\n\nSecond\n\nStreet,\n\nSpringfield,\n\nIllinois\n\n62706 • (\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n1001\n\nFast Main. Carbondale.\n\n217)\n\n782- 1090 •\n\n312) 814- 3000 •\n\nIllinois 62901 • ( 618)\n\nTTY: (\n\n217)\n\n735 - 2771 •\n\nTTY: ( 312) 814- 3374 •\n\n529- 6400 • TTY: ( 618)\n\n529- 6403 •\n\nFax: ( 217)\n\n782- 7046\n\nFax: ( 312) 814- 3806\n\nFax. ( 618)\n\n529- 6416\n\n\fMr. John Kraft\nMr. William\n\nIngram\n\nJanuary 9, 2020\nPage 2\n\nOn July 13, 2018, this office received the Board' s response. On July 20, 2018, Mr. Kraft\nsubmitted a reply in which he withdrew his allegation that the Board improperly took final action\nin closed session.\n\nDETERMINATION\n\nSection 1 of OMA ( 5 ILCS 120/ 1 ( West 2018)) provides \" it to be the public\n\npolicy of this State that its citizens shall be given advance notice of and the right to attend all\nmeetings at which any business of a public body is discussed or acted upon in any way.\" Section\n2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2018)) provides that \"[ p] ublic notice of any special\nmeeting except a meeting held in the event of a bona fide emergency, or of any rescheduled\n\nregular meeting, or of any reconvened meeting, shall be given at least 48 hours before such\nEmphasis added.) Section 2. 02( a) further provides: \" Notice of an emergency\nmeeting shall be given as soon as practicable, but in any event prior to the holding of such\nmeeting, to any news medium which has filed an annual request for notice under subsection ( b)\nmeeting[.]\" (\n\nof this Section.\"\nprovides: \"\n\nIn addition, section 2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West 2018))\n\nAny agenda required under this Section shall set forth the general subject matter of\n\nany resolution or ordinance that will be the subject of final action at the meeting.\"\nThe draft minutes of the Board's June 19, 2018, meeting indicate that Mike Potter\naddressed the Board in open session and stated that he would like to tender his resignation, and\nthat the Board voted to accept his resignation.\n\nThe minutes also indicate that the Board voted to\n\nappoint Mr. Mike Vadeboncoeur to serve as acting airport manager. The meeting agenda does\nnot contain any reference to the employment status of the airport manager or the general subject\nmatter of any action to accept the airport manager' s resignation or to appoint an acting airport\nmanager.\n\nThe Board' s response to this office denied that Mr. Potter was terminated or that Mr.\n\nVadeboncoeur was appointed the permanent airport manager at the meeting. The response\nfurther stated that neither the acceptance of the resignation nor the appointment of the acting\nairport manager appeared on the meeting agenda because the unexpected resignation of the\nairport manager \" presented an emergency situation for the [ Airport Authority] as to the operation\nof the airport.\"'\n\nIn his reply, Mr. Kraft stated that OMA does not authorize public bodies to take\n\nfinal action without providing advance even if a legitimate emergency exists.\n\nThe Board' s June 19, 2018, meeting was not an emergency meeting; the Board's\nresponse to this office stated that it was a regular meeting. Even assuming that the airport\nmanager' s request to tender his resignation created a \" bona fide emergency\", within the meaning\n\nof section 2. 02( a), which justified holding an emergency meeting without providing at least 48\nhours of advance notice, the Board could have convened an emergency meeting after providing\nadvance notice to the extent possible. Section 2. 02( c) of OMA does not contain an exception\nLetter from Dave Kietzmann, Chairman, Vermilion Regional Airport Authority, to Office of the\nAttorney General, State Silverman, Bureau Chief, Public Access Bureau ( July 11, 2018).\n\n\fr.John Kraft\nMr: William Ingram\n\nJanuary 9, 2020\nPage 3\n\nthat authorizes a public body to immediately act at a regular meeting to address a situation that it\nperceives as an emergency when the general subject matter of that final action does not appear\n\non the meeting agenda. Accordingly, this office concludes that the Board violated OMA during\nits June 19, 2018, meeting by failing to provide advance notice of its actions to accept the airport\nmanager' s resignation and to appoint an acting airport manager. Because the Board voted to\nappoint the acting airport manager as its permanent airport manager at its subsequent meeting in\n\nJuly 2018, 2 no further action is required to remedy this violation.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at ( 312) 814- 6756.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau\n\nChief\n\nPublic Access Bureau\n\n53675 o 202 notice improper reg auth\ncc:\n\nDavis and Delanois, P. C.\nAttorneys at Law\n\n28 West North Street, Suite 200\nP. O. Box 344\nDanville, Illinois 61834- 0344\n\n2Larry Smith, Board names new airport director, COMMERCIAL - NEWS ( July 18, 2018),\nhaps:// www. commerc ial- news. com/ news/ local_ news/ board- names- new- airport- director/ article_ Obcd4c03- 46695039- bf52- 1a2bldc4d2aa.\n\nhtml\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's failure to include personnel actions on a meeting agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53675/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY\n\nGENERAL\n\nJanuary 9, 2020\n\nMr. John Kraft\n\nMr. William Ingram\nCommissioner and Interim Chairman\n\nVermilion Regional Airport Authority\nBoard of Commissioners\nVermilion Regional Airport\n\n[street address redacted for site publication -- see original PDF]\nRE:\n\nOMA Request for Review —2019 PAC 53675\n\nDear Mr. Kraft and Mr. Ingram:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons stated below, this office concludes\n\nthat the Vermilion Regional Airport Authority (Airport Authority) Board of Commissioners\nBoard) violated OMA by failing to provide the public with advance notice of action taken\nduring the Board's June 19, 2018, meeting.\nIn his Request for Review, Mr. John Kraft alleged that at its June 19, 2018,\n\nmeeting, the Board took final action to terminate its airport manager and hire a new airport\nmanager without providing advance notice of those final actions on the meeting agenda. He also\nquestioned whether final actions on those matters were taken in closed session.\n\nOn June 26, 2018, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide copies of the agenda, open and closed session meeting minutes (draft\nform if necessary), and the closed session verbatim recording, if any, of the Board's June 19,\n2018, meeting. We also requested a written response to Mr. Kraft's allegations that addresses\nwhether the Board took final action to hire and/ or fire the airport manager during the meeting.\n\n500 South\n\nSecond\n\nStreet,\n\nSpringfield,\n\nIllinois\n\n62706 • (100 West Randolph Street, Chicago, Illinois, 60601 • (1001\n\nFast Main. Carbondale.\n\n217)\n\n782- 1090 •\n\n312) 814- 3000 •\n\nIllinois 62901 • (618)\n\nTTY: (217)\n\n735 - 2771 •\n\nTTY: (312) 814- 3374 •\n\n529- 6400 • TTY: (618)\n\n529- 6403 •\n\nFax: (217)\n\n782- 7046\n\nOn July 13, 2018, this office received the Board's response. On July 20, 2018, Mr. Kraft\nsubmitted a reply in which he withdrew his allegation that the Board improperly took final action\nin closed session.\n\nDETERMINATION\n\nSection 1 of OMA (5 ILCS 120/ 1 (West 2018)) provides \" it to be the public\n\npolicy of this State that its citizens shall be given advance notice of and the right to attend all\nmeetings at which any business of a public body is discussed or acted upon in any way.\" Section\n2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2018)) provides that \"[ p] ublic notice of any special\nmeeting except a meeting held in the event of a bona fide emergency, or of any rescheduled\n\nregular meeting, or of any reconvened meeting, shall be given at least 48 hours before such\nEmphasis added.) Section 2. 02(a) further provides: \" Notice of an emergency\nmeeting shall be given as soon as practicable, but in any event prior to the holding of such\nmeeting, to any news medium which has filed an annual request for notice under subsection (b)\nmeeting[.]\" (of this Section.\"\nprovides: \"\n\nIn addition, section 2. 02(c) of OMA (5 ILCS 120/ 2. 02(c) (West 2018))\n\nAny agenda required under this Section shall set forth the general subject matter of\n\nany resolution or ordinance that will be the subject of final action at the meeting.\"\nThe draft minutes of the Board's June 19, 2018, meeting indicate that Mike Potter\naddressed the Board in open session and stated that he would like to tender his resignation, and\nthat the Board voted to accept his resignation.\n\nThe minutes also indicate that the Board voted to\n\nappoint Mr. Mike Vadeboncoeur to serve as acting airport manager. The meeting agenda does\nnot contain any reference to the employment status of the airport manager or the general subject\nmatter of any action to accept the airport manager's resignation or to appoint an acting airport\nmanager.\n\nThe Board's response to this office denied that Mr. Potter was terminated or that Mr.\n\nVadeboncoeur was appointed the permanent airport manager at the meeting. The response\nfurther stated that neither the acceptance of the resignation nor the appointment of the acting\nairport manager appeared on the meeting agenda because the unexpected resignation of the\nairport manager \" presented an emergency situation for the [ Airport Authority] as to the operation\nof the airport.\"'\n\nIn his reply, Mr. Kraft stated that OMA does not authorize public bodies to take\n\nfinal action without providing advance even if a legitimate emergency exists.\n\nThe Board's June 19, 2018, meeting was not an emergency meeting; the Board's\nresponse to this office stated that it was a regular meeting. Even assuming that the airport\nmanager's request to tender his resignation created a \" bona fide emergency\", within the meaning\n\nof section 2. 02(a), which justified holding an emergency meeting without providing at least 48\nhours of advance notice, the Board could have convened an emergency meeting after providing\nadvance notice to the extent possible. Section 2. 02(c) of OMA does not contain an exception\nLetter from Dave Kietzmann, Chairman, Vermilion Regional Airport Authority, to Office of the\n\nthat authorizes a public body to immediately act at a regular meeting to address a situation that it\nperceives as an emergency when the general subject matter of that final action does not appear\n\non the meeting agenda. Accordingly, this office concludes that the Board violated OMA during\nits June 19, 2018, meeting by failing to provide advance notice of its actions to accept the airport\nmanager's resignation and to appoint an acting airport manager. Because the Board voted to\nappoint the acting airport manager as its permanent airport manager at its subsequent meeting in\n\nJuly 2018, 2 no further action is required to remedy this violation.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at (312) 814- 6756.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau\n\nChief\n\nPublic Access Bureau\n\n53675 o 202 notice improper reg auth\ncc:\n\nDavis and Delanois, P. C.\nAttorneys at Law\n\n28 West North Street, Suite 200\nP. O. Box 344\nDanville, Illinois 61834- 0344\n\n2 Larry Smith, Board names new airport director, COMMERCIAL - NEWS (July 18, 2018),\nhaps:// www. commerc ial- news. com/ news/ local_ news/ board- names- new- airport- director/ article_ Obcd4c03- 46695039- bf52- 1a2bldc4d2aa.\n\nhtml"}
{"id":1262,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-01-31","case_number":null,"request_numbers":["53781"],"title":"O'Fallon School Board emails to draft statement did not violate Open Meetings Act","filename":"53781, issued January 31, 2019.pdf","rel_path":null,"word_count":3046,"summary":"A requester alleged that O'Fallon Community Consolidated School District No. 90 Board members violated the Open Meetings Act by coordinating a public statement via email. The PAC determined that the Board did not violate OMA because the email exchange did not constitute a meeting or improper final action.","plain_summary":"A citizen complained that school board members were secretly meeting via email to write a public statement, which would violate the Open Meetings Act. The Attorney General's office investigated and found that the board members' email communication did not constitute an illegal private meeting. Therefore, no violation of the law occurred.","holding":"The Board of Education did not violate the Open Meetings Act in connection with the issuance of an email statement.","legal_question":"Whether email communications between a majority of a quorum of a public body to draft a public statement constitute a 'meeting' under the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"O'Fallon Community Consolidated School District No. 90 Board of Education","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The alleged use of email by board members to coordinate the drafting of a public statement outside of a public meeting.","ocr_status":"ok","ocr_quality":92.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/meetings-via-electronic-means/53781, issued January 31, 2019.pdf","sha256":"0177cfe3da4fc956bdd951b005c944a67d9fa2de1dd9687f1caac12ad9e9043f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email communication","school board","public statement","meeting definition"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTAT E OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJanuary 31, 2019\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable John Wagnon, President\nBoard of Education\nO'Fallon Community Consolidated School District No. 90\n118 East Washington Street\nO'Fallon, Illinois 62269\njwagnon@of90.net\nRE: OMA Request for Review-2018 PAC 53781\nDear-and Mr. Wagnon:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons explained below, the Public Access\nBureau concludes that the O'Fallon Community Consolidated School District No. 90 (District)\nBoard of Education (Board) did not violate OMA in connection with an e-mail statement issued\non May 17, 2018.\nBACKGROUND\nRequest for Review\nOn June 28, 2018, this office received\nalleging that six Board members discussed and coordinated via e-mail the drafting of a May 17,\n2018, statement to the parents and students in the District. On July 3, 2018, this office sent a\ncopy of the Request for Review to the Board and requested that it provide a written response to\nallegations. This office asked the Board to identify any and all discussions and\ncommunications that occurred between and among Board members outside of open meetings\nconcerning the May 17, 2018, e-mail statement referenced in •\nRequest for Review.\nThis office requested copies of any records that documented those discussions, as well as copies\n\n■■■■■\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-I090 • Tl'Y: (877) 844-5461 • Fax: (217) 782-7046\nJOO West Randolph Street, Chicago. Illinois 60601 • (312) 814-3000 • TIT: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave .. Carbondale, IL 62901 • (618) 529-6400 • Tl'Y: (877) 675-9J39 • Fax (618) 529-6416 •�-\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 2\n\nof any records of communications, such as e-mails and text messages. This office also asked the\nBoard to address whether it took improper final action regarding the May I 7, 2018, e-mail\nstatement. On July 11, 2018, the Board provided a written response and the requested materials.\nOn July 25, 2018, •·•· replied. On November 28, 2018, and December 6, 2018, in\nresponse to follow-up inquiries from this office, the Board provided additional materials.\n• According to the background information provided by the parties,\nmade comments at an April 15, 2018, O'Fallon City Council meeting \"on the intended audience\n[for the reading of a children's book] and the possible improper use of a publically funded\nfacility.\" 1 Many members of the public were outraged b�comments. According\nto a news report, hundreds of people attended the Board's May 15, 2018, meeting, many of\nwhom spoke during the public comment periods to share their thoughts on\ne-mails in\nstatements. 2 One member ofthe public read excerpts from copies of\nwhich he questioned school policy concerning the needs oftransgender and other students. The\ncomments in\ne-mails added to the growing public controversy. Ori May 17, 2018,\nsix Board members issued an e-mail statement to local news media outlets, District staff, and\nparents, as follows:\nAs a leader in public education, District 90 teaches tolerance,\nacceptance, and kindness from the moment our students walk into\nour classrooms. As Superintendent Hruby stated, \"Each and every\nschool day, one can witness students being encouraged to explore .\nand grow their own strengths, but perhaps more importantly, to\nfind strengths in one another by embracing our differences.\"\nWe, as Board members, believe it is the responsibility of public\neducation in America to be the great equalizer--to offer\nopportunities for all children to succeed. To that end, authority is\ngranted to the elected officials ofthe Board of Education as a\nwhole, not to each member� to make decisions for the\nbetterment of all students. -is one member of the\nBoard of Education. When he voiced his opinions, his voice was\nhis alone. Furthermore we do not agree with nor support the\nLetter fl-om\nBureau(July 18,2018), at I.\n1\n\nto Laura S. Harter, Assistant Attorney General, Public Access\n\nRobyn L. Kirsch, Emails fuel cal/for resignation of O'Fallon school board member 'branded as a\nracist', BELLVILLE NEWS-DEMOCRAT, May 16, 2018, https://www.bnd.com/news/local/community/ofallon­\nprogress/article210776579.html.\n2\n\n\fThe Honorable John Wagnon\nJanuary 3 I, 2019\nPage 3\n\ncomments made in the released emails and will not endorse\ndiscriminatory policies of any kind.[3 1\nDETERMINATION\nAlleged Violation of Meeting Requirements\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2017 Supp.)) provides that \"[a]ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" (Emphasis added.) In addition, section 2.02(a) of OMA (5\nILCS 120/2.02(a) (West 2016)) generally requires a public body to provide the public with at\nleast 48 hours advance notice of its meetings. In order for the requirements of OMA to apply, a\ngathering must constitute a \"meeting\" as defined by section 1.02 of OMA (5 ILCS 120/1.02\n(West 2016)):\n• \"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nUnder this statutory definition, a \"meeting\" may include communications through\ne-mail or other electronic means. The Board is comprised of seven members. Accordingly, four\nBoard members constitute a quorum, and a majority of the quorum is three members. Therefore,\ncontemporaneous, interactive e-mail or other electronic communications involving at least three\nmembers of the Board which concern \"public business\" would ordinarily constitute a meeting of\nthe Board which would be subject to the procedural safeguards and requirements of OMA.\nOMA does not define \"interactive\" or \"contemporaneous.\" In interpreting statutes\nsuch as OMA, undefined statutory terms must be afforded their \"plain, ordinary, and popular\nmeanings[,]\" which may be gleaned from dictionaries. See, e.g., Valley Forge Insurance Co. v.\nSwiderski Electronics, 223 Ill. 2d 352, 366 (2006).\n\n3 Letter from S. Jeff Funk to Ms. Laura S. Harter, Assistant Attorney General, Public Access\n\nBureau (July 11, 2018), Attachment 3.\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 4\n\"Interactive\" is defined, in relevant part, as \"mutually or reciprocally active. \" 4\nThis office has reviewed the.e-mails concerning the May 17, 2018, statement. Most of the e­\nmails included only one Board member interacting with a non-Board member. 5 Other e-mails\nincluded two Board members 6 or two Board members and a non-Board member. 7 A third Board\nmember was copied on some of these e-mails, but never participated in the e-mail exchanges\nwith the other two Board members. 8 Certain e-mails were sent to five or six Board members, 9\nbut no more than two Board members replied to all recipients on those e-mail strings. 10\nImportantly, none of the e-mail strings provided to this office regarding the draft statement\nincluded three Board members engaged in interactive communications by responding to each\nother's e-mails.\nOne e-mail string provided by the Board that did not involve drafting the\nstatement did involve \"interactive\" communications, as three Board members interacted with\neach other over the course of three messages. 11 Whether the e-mails constituted a meeting under\nOMA depends on whether the messages were also \"contempmaneous.\" \"Contemporaneous\" is\ndefined as \"existing, occurring, or originating during the same time.\" 12 The Public Access\nBureau has noted previously that \"Illinois' appellate courts have not yet been called upon to\n'Merriam-Webster Online Dictionary, https://www .merriam-webster.com/dictionary/interactive\n(last visited December 4, 2018).\n'OMA-Request for Review by Public Access Counselor submitted by\n2018),Attachments3,4,5,6, 7, 15, 16a, 17, 18.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by - �.\n2018), Attachment 9a, 21. See also OMA-Request for Review by Public Access Counselor submitted by_\n(June 24, 2018), Attachment 22 (e-mail messages that do not concern the May 17, 2018, statement).\n'OMA-Request for Review by Public Access Counselor submitted by\n2018), Attachments I, 9, 14.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by\n2018)), Attachment 11.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by\n2018), Attachments 2, 8.\n\n(June 24,\n\n\"OMA-Request for Review by Public Access Counselor submitted by\n2018),Attachments 13, 16.\n\n(June 24,\n\n0MA-Req�est for Review by Public Access Counselor submitted by\n2018), Attachment 19.\n\n(June 24,\n\n11\n\nMerriam-Webster Online Dictionary, https://www.merriam­\nwebster.com/dictionary/contemporaneous (last visited December 5, 2018).\n12\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 5\n\ndecide how close in time electronic communications must be in order to be 'contemporaneous,'\nfor purposes of OMA; nor does the legislative history of the statutory language provide any\nguidance in defining 'contemporaneous.\"' Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued\nSeptember 9, 2013, at 3 (quoting Ill. Att'y Gen. PAC Req. Rev. 17172, issued September 7,\n2012, at 3). A \"contemporaneous interactive communication\" occurs in the same general time\nframe, but is not necessarily simultaneous. Ill. Att'y Gen. PAC Req. Rev. Ltr. 14722, issued\nAugust 12, 2011, at 4 (citing John H. Brechin, E-mail and the Open Meetings Act, Illinois Bar\nJournal, 94 !LBJ 666, 667 (2006)). In prior matters, this office determined that we could not\nconclude that e-mails sent over a period of hours or longer were \"contemporaneous\" as a matter\nof law. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 39667, issued February 18, 2016 (e-mails\nseparated by more than an hour, in the case of one, and more than two days, in the case of\nanother, were not contemporaneous); Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued\nSeptember 9, 2013, at 3 (e-mail responses sent hours apart did not constitute contemporaneous,\ninteractive discussions of public business); Ill. Att'y Gen. PAC Req. Rev. 17172, issued\nSeptember 7, 2012, at 3 (e-mail responses sent hours or days after initial e-mail were not\ncontemporaneous). See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 40976, issued August 24, 2016, at\n3 (unable to conclude that \"text messages that may have stretched over a period over two hours\"\nconstituted contemporaneous communications).\nHere, the first two messages in the e-mail string were sent only four minutes\napart, but the third message was not sent until more than an hour and a half later. As one of the\nthree e-mails was sent more than an hour after the first two messages, this office cannot conclude\nthat the e-mail string constituted a \"contemporaneous interactive communication.\" Accordingly,\nthis office concludes that none of the e-mail strings provided to this office by the Board\nconstituted a \"meeting\" subject to the requirements of OMA.\nFinal Action Outside of an Open Meeting\n\nSection 1 of OMA (5 ILCS 120/1 (West 2016)) provides:\nIt is the public policy of this State that public bodies exist\nto aid in the conduct of the people's business and that the people\nhave a right to.be informed as to the conduct of their business. In\norder that the people shall be informed, the General Assembly\nfinds and declares that it is the intent of this Act to ensure that the\nactions of public bodies be taken openly and that their\ndeliberations be conducted openly.\nWith respect to final action by a public body, section 2(e) of OMA (5 ILCS\n120/2(e) (West 2017 Supp.)) provides: \"No final action may be taken at a closed meeting. Final\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 6\n\naction shall be preceded by a public recital of the nature of the matter being considered and other\ninformation that will inform the public of the business being conducted.\"\nThe Appellate Court has held that when a public body finalizes a decision in a\ndocument, that final action must be taken openly:\nNo public body in Illinois subject to the Open Meetings Act can\ntake final action by merely circulating some document for\nsignature and not voting on it publicly. Imagine, for instance, the\nlegal problems if the Chicago city council \"adopted\" ordinances by\npublicly voting on a concept that had never been reduced to\nwriting, directed a staff attorney to prepare it in a more detailed\nwritten form, circulated the final version around city hall for\nsignatures of a majority of the 50 alderman, and then ordered the\ncity clerk to publish it as if it were a valid legislative act. Howe v.\nRetirement Bd. ofFiremen's Annuity & Benefit Fund-of Chicago,\n2013 IL App (1st) 122446, i126, 996 N.E.2d 664, 974-75 (2013)\n(finding board's written denial of benefits invalid because the\nboard had circulated the decision for signatures privately rather\nthan voting on it in open session).\nFurther, this office has previously determined that a board violated section 2(e) of OMA by\nimproperly taking final action when four of five board members signed a letter in support of a\nwage ordinance without publicly discussing the letter prior to its signing. See Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 21599, issued March 19, 2013, at 2.\nargues that the act of issuing a statement is a final action. He\ncontends that the statement pertained to the business of the Board because its purpose was to\nclarify the Board's position on a contentious public issue. The Board does not dispute that it\nissued the statement without discussing or voting on it at an open meeting. However, the Board\nasserts that because\ncontroversial comments did not involve Board business, the\nBoard's statement concerning\ncomments cannot be characterized as involving\nBoard business. The Board also noted that the Board members did not make any decisions\nregarding\ncomments other than to issue the statement.\n\n■■-■-■\n\nIt is undisputed that\ncomments resulted in significant public\ncontroversy. Six members of the Board determined that they would address the public's\nconcerns by issuing a statement ex�eral sentiment of unity and disavowing­\n- comments. Contrary to - assertion that issuing a statement on a\ncontentious public issue is always a final action under OMA, this office has found that issuing a\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 7\n\nstatement clarifying a public body's position is not necessarily a final action. Specifically, this\noffice concluded that a letter sent by all trustees of a public body that sought to clarify the public\nbody's position on an issue was noJ a final action. See Ill. Att'y Gen. PAC Rev. Ltr. 50318,\nissued January 30, 2018, at 6. This office found that:\nthe letter summarizes past discussions that have been held during\nopen sessions at various Board meetings and the deliberations that\noccurred during the Township Annual Meeting concerning on­\ngoing issues related to Township funds. Further, it does not appear\nfrom the letter, or the meeting minutes, that the Board has come to\na decision on how to handle the funds at issue. Therefore, this\nletter cannot be characterized as a \"final action\" by the Board. Ill.\nAtt'y Gen. PAC Rev. Ltr. 50318, issued January 30, 2018, at 6.\nSimilarly, here, the May 17, 2018, e-mail statement is not a final action. Most of the e-mail\nconsists of factual or philosophical statements, none of which can be construed as asserting a\nnew policy or deciding a Board matter. The final sentence, \"[f]urthermore we do not agree with\nnor support the comments made in the released emails and will not endorse discriminatory\npolicies of any kind,\" 13 reflects the only definitive positions taken by the members: that they\ndisagree with\nI comments, and that they will not endorse discriminatory policies.\ne-mail comments are his opinions, none of which are binding on the Board.\nLikewise, the six members' expression of disagreement is a statement of opinion that has no\nbinding effect on the Board and does not resolve any matter of Board business. Even if the\nopinion could be considered relevant to Board policy accommodating transgender students, the\nopinion was merely an interim decision on a Board matter, and this office has found that interim\ndecisions do not constitute final action. See Ill. Att'y Gen. PAC Rev. Ltr. 54002, issued October\n22, 2018, at 8 (concluding that a University Board of Trustees' decision to publically voice its\nsupport for an individual to become University President was an interim decision at the time of\nthe Request for Review, rather than a final action).\n\n■■■■■\n\nFurther, stating that the members would not endorse any discriminatory policies is\nnot an assertion of a new policy position, as promising not to discriminate is a fundamental\n\n13 Letter from S. Jeff Funk to Ms. Laura S. Harter, Assistant Attorney General, Public Access\n\nBureau (July 11, 2018), Attachment 3.\n\n\fThe Honorable John Wagnon\nJanuary 31, 2019\nPage 8\nobligation of public service. In their oaths of office, 14 all seven Board members implicitly\nvowed not to support discriminatory policies by swearing to act in accordance with the equal\nprotection clauses of the United States 15 and Illinois Constitutions. 16\nIn sum, the May 17, 2018, e-mail statement did not constitute final action, as it\ndid not put forth a new Board position, nor was it binding on any Board business. Accordingly,\nthis office concludes that the Board did not improperly take final action outside of a public\nmeeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, LHarter@atg.state.il.us, or (217) 524-7958.\nThis letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n53781 o no vio sd\ncc:\n\nVia electronic mail\nMr. S. Jeff Funk\nMiller, Tracy, Braun, Funk & Miller, Ltd.\n• 316 South Charter\nMonticello, Illinois 6 I 856\njfunk@millertracy.com\n\n14The Board members' oath provides: \"I, (name), do solemnly swear (or affirm) that I will\nfaithfully discharge the duties ofthe office ofmember ofthe Board of Education ofO'Fallon Community\nConsolidated School District No. 90, in accordance with the Constitution ofthe United States, the Constitution of\nthe State of Illinois, and the laws ofthe State ofIllinois, to the best ofmy ability.\" O'Fallon Community\nConsolidated School District No. 90, Board Policy Manual, §2:80 Board Member Oath and Conduct.\n1\n\n'U.S. Const., amend. XIV, § 1.\n\n16\n\nIll. Const. 1970, art. I, §2.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Board members' emails coordinating a public statement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53781/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTAT E OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJanuary 31, 2019\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable John Wagnon, President\nBoard of Education\nO'Fallon Community Consolidated School District No. 90\n118 East Washington Street\nO'Fallon, Illinois 62269\njwagnon@of90.net\nRE: OMA Request for Review-2018 PAC 53781\nDear-and Mr. Wagnon:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons explained below, the Public Access\nBureau concludes that the O'Fallon Community Consolidated School District No. 90 (District)\nBoard of Education (Board) did not violate OMA in connection with an e-mail statement issued\non May 17, 2018.\nBACKGROUND\nRequest for Review\nOn June 28, 2018, this office received\nalleging that six Board members discussed and coordinated via e-mail the drafting of a May 17,\n2018, statement to the parents and students in the District. On July 3, 2018, this office sent a\ncopy of the Request for Review to the Board and requested that it provide a written response to\nallegations. This office asked the Board to identify any and all discussions and\ncommunications that occurred between and among Board members outside of open meetings\nconcerning the May 17, 2018, e-mail statement referenced in •\nRequest for Review.\nThis office requested copies of any records that documented those discussions, as well as copies\n\n■■■■■\n\nof any records of communications, such as e-mails and text messages. This office also asked the\nBoard to address whether it took improper final action regarding the May I 7, 2018, e-mail\nstatement. On July 11, 2018, the Board provided a written response and the requested materials.\nOn July 25, 2018, •·•· replied. On November 28, 2018, and December 6, 2018, in\nresponse to follow-up inquiries from this office, the Board provided additional materials.\n• According to the background information provided by the parties,\nmade comments at an April 15, 2018, O'Fallon City Council meeting \"on the intended audience\n[for the reading of a children's book] and the possible improper use of a publically funded\nfacility.\" 1 Many members of the public were outraged b�comments. According\nto a news report, hundreds of people attended the Board's May 15, 2018, meeting, many of\nwhom spoke during the public comment periods to share their thoughts on\ne-mails in\nstatements. 2 One member ofthe public read excerpts from copies of\nwhich he questioned school policy concerning the needs oftransgender and other students. The\ncomments in\ne-mails added to the growing public controversy. Ori May 17, 2018,\nsix Board members issued an e-mail statement to local news media outlets, District staff, and\nparents, as follows:\nAs a leader in public education, District 90 teaches tolerance,\nacceptance, and kindness from the moment our students walk into\nour classrooms. As Superintendent Hruby stated, \"Each and every\nschool day, one can witness students being encouraged to explore.\nand grow their own strengths, but perhaps more importantly, to\nfind strengths in one another by embracing our differences.\"\nWe, as Board members, believe it is the responsibility of public\neducation in America to be the great equalizer--to offer\nopportunities for all children to succeed. To that end, authority is\ngranted to the elected officials ofthe Board of Education as a\nwhole, not to each member� to make decisions for the\nbetterment of all students. -is one member of the\nBoard of Education. When he voiced his opinions, his voice was\nhis alone. Furthermore we do not agree with nor support the\nLetter fl-om\nBureau(July 18,2018), at I.\n1\n\nto Laura S. Harter, Assistant Attorney General, Public Access\n\nRobyn L. Kirsch, Emails fuel cal/for resignation of O'Fallon school board member 'branded as a\nracist', BELLVILLE NEWS-DEMOCRAT, May 16, 2018, https://www.bnd.com/news/local/community/ofallon­\nprogress/article210776579.html.\n2\n\nThe Honorable John Wagnon\nJanuary 3 I, 2019\nPage 3\n\ncomments made in the released emails and will not endorse\ndiscriminatory policies of any kind.[3 1\nDETERMINATION\nAlleged Violation of Meeting Requirements\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2017 Supp.)) provides that \"[a]ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" (Emphasis added.) In addition, section 2.02(a) of OMA (5\nILCS 120/2.02(a) (West 2016)) generally requires a public body to provide the public with at\nleast 48 hours advance notice of its meetings. In order for the requirements of OMA to apply, a\ngathering must constitute a \"meeting\" as defined by section 1.02 of OMA (5 ILCS 120/1.02\n(West 2016)):\n• \"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nUnder this statutory definition, a \"meeting\" may include communications through\ne-mail or other electronic means. The Board is comprised of seven members. Accordingly, four\nBoard members constitute a quorum, and a majority of the quorum is three members. Therefore,\ncontemporaneous, interactive e-mail or other electronic communications involving at least three\nmembers of the Board which concern \"public business\" would ordinarily constitute a meeting of\nthe Board which would be subject to the procedural safeguards and requirements of OMA.\nOMA does not define \"interactive\" or \"contemporaneous.\" In interpreting statutes\nsuch as OMA, undefined statutory terms must be afforded their \"plain, ordinary, and popular\nmeanings[,]\" which may be gleaned from dictionaries. See, e.g., Valley Forge Insurance Co. v.\nSwiderski Electronics, 223 Ill. 2d 352, 366 (2006).\n\n3 Letter from S. Jeff Funk to Ms. Laura S. Harter, Assistant Attorney General, Public Access\n\n\"Interactive\" is defined, in relevant part, as \"mutually or reciprocally active. \" 4\nThis office has reviewed the.e-mails concerning the May 17, 2018, statement. Most of the e­\nmails included only one Board member interacting with a non-Board member. 5 Other e-mails\nincluded two Board members 6 or two Board members and a non-Board member. 7 A third Board\nmember was copied on some of these e-mails, but never participated in the e-mail exchanges\nwith the other two Board members. 8 Certain e-mails were sent to five or six Board members, 9\nbut no more than two Board members replied to all recipients on those e-mail strings. 10\nImportantly, none of the e-mail strings provided to this office regarding the draft statement\nincluded three Board members engaged in interactive communications by responding to each\nother's e-mails.\nOne e-mail string provided by the Board that did not involve drafting the\nstatement did involve \"interactive\" communications, as three Board members interacted with\neach other over the course of three messages. 11 Whether the e-mails constituted a meeting under\nOMA depends on whether the messages were also \"contempmaneous.\" \"Contemporaneous\" is\ndefined as \"existing, occurring, or originating during the same time.\" 12 The Public Access\nBureau has noted previously that \"Illinois' appellate courts have not yet been called upon to\n'Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/interactive\n(last visited December 4, 2018).\n'OMA-Request for Review by Public Access Counselor submitted by\n2018),Attachments3,4,5,6, 7, 15, 16a, 17, 18.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by - �.\n2018), Attachment 9a, 21. See also OMA-Request for Review by Public Access Counselor submitted by_\n(June 24, 2018), Attachment 22 (e-mail messages that do not concern the May 17, 2018, statement).\n'OMA-Request for Review by Public Access Counselor submitted by\n2018), Attachments I, 9, 14.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by\n2018)), Attachment 11.\n\n(June 24,\n\n'OMA-Request for Review by Public Access Counselor submitted by\n2018), Attachments 2, 8.\n\n(June 24,\n\n\"OMA-Request for Review by Public Access Counselor submitted by\n2018),Attachments 13, 16.\n\n(June 24,\n\n0MA-Req�est for Review by Public Access Counselor submitted by\n2018), Attachment 19.\n\ndecide how close in time electronic communications must be in order to be 'contemporaneous,'\nfor purposes of OMA; nor does the legislative history of the statutory language provide any\nguidance in defining 'contemporaneous.\"' Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued\nSeptember 9, 2013, at 3 (quoting Ill. Att'y Gen. PAC Req. Rev. 17172, issued September 7,\n2012, at 3). A \"contemporaneous interactive communication\" occurs in the same general time\nframe, but is not necessarily simultaneous. Ill. Att'y Gen. PAC Req. Rev. Ltr. 14722, issued\nAugust 12, 2011, at 4 (citing John H. Brechin, E-mail and the Open Meetings Act, Illinois Bar\nJournal, 94 !LBJ 666, 667 (2006)). In prior matters, this office determined that we could not\nconclude that e-mails sent over a period of hours or longer were \"contemporaneous\" as a matter\nof law. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 39667, issued February 18, 2016 (e-mails\nseparated by more than an hour, in the case of one, and more than two days, in the case of\nanother, were not contemporaneous); Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued\nSeptember 9, 2013, at 3 (e-mail responses sent hours apart did not constitute contemporaneous,\ninteractive discussions of public business); Ill. Att'y Gen. PAC Req. Rev. 17172, issued\nSeptember 7, 2012, at 3 (e-mail responses sent hours or days after initial e-mail were not\ncontemporaneous). See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 40976, issued August 24, 2016, at\n3 (unable to conclude that \"text messages that may have stretched over a period over two hours\"\nconstituted contemporaneous communications).\nHere, the first two messages in the e-mail string were sent only four minutes\napart, but the third message was not sent until more than an hour and a half later. As one of the\nthree e-mails was sent more than an hour after the first two messages, this office cannot conclude\nthat the e-mail string constituted a \"contemporaneous interactive communication.\" Accordingly,\nthis office concludes that none of the e-mail strings provided to this office by the Board\nconstituted a \"meeting\" subject to the requirements of OMA.\nFinal Action Outside of an Open Meeting\n\nSection 1 of OMA (5 ILCS 120/1 (West 2016)) provides:\nIt is the public policy of this State that public bodies exist\nto aid in the conduct of the people's business and that the people\nhave a right to.be informed as to the conduct of their business. In\norder that the people shall be informed, the General Assembly\nfinds and declares that it is the intent of this Act to ensure that the\nactions of public bodies be taken openly and that their\ndeliberations be conducted openly.\nWith respect to final action by a public body, section 2(e) of OMA (5 ILCS\n120/2(e) (West 2017 Supp.)) provides: \"No final action may be taken at a closed meeting. Final\n\naction shall be preceded by a public recital of the nature of the matter being considered and other\ninformation that will inform the public of the business being conducted.\"\nThe Appellate Court has held that when a public body finalizes a decision in a\ndocument, that final action must be taken openly:\nNo public body in Illinois subject to the Open Meetings Act can\ntake final action by merely circulating some document for\nsignature and not voting on it publicly. Imagine, for instance, the\nlegal problems if the Chicago city council \"adopted\" ordinances by\npublicly voting on a concept that had never been reduced to\nwriting, directed a staff attorney to prepare it in a more detailed\nwritten form, circulated the final version around city hall for\nsignatures of a majority of the 50 alderman, and then ordered the\ncity clerk to publish it as if it were a valid legislative act. Howe v.\nRetirement Bd. ofFiremen's Annuity & Benefit Fund-of Chicago,\n2013 IL App (1st) 122446, i126, 996 N.E.2d 664, 974-75 (2013)\n(finding board's written denial of benefits invalid because the\nboard had circulated the decision for signatures privately rather\nthan voting on it in open session).\nFurther, this office has previously determined that a board violated section 2(e) of OMA by\nimproperly taking final action when four of five board members signed a letter in support of a\nwage ordinance without publicly discussing the letter prior to its signing. See Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 21599, issued March 19, 2013, at 2.\nargues that the act of issuing a statement is a final action. He\ncontends that the statement pertained to the business of the Board because its purpose was to\nclarify the Board's position on a contentious public issue. The Board does not dispute that it\nissued the statement without discussing or voting on it at an open meeting. However, the Board\nasserts that because\ncontroversial comments did not involve Board business, the\nBoard's statement concerning\ncomments cannot be characterized as involving\nBoard business. The Board also noted that the Board members did not make any decisions\nregarding\ncomments other than to issue the statement.\n\n■■-■-■\n\nIt is undisputed that\ncomments resulted in significant public\ncontroversy. Six members of the Board determined that they would address the public's\nconcerns by issuing a statement ex�eral sentiment of unity and disavowing­\n- comments. Contrary to - assertion that issuing a statement on a\ncontentious public issue is always a final action under OMA, this office has found that issuing a\n\nstatement clarifying a public body's position is not necessarily a final action. Specifically, this\noffice concluded that a letter sent by all trustees of a public body that sought to clarify the public\nbody's position on an issue was noJ a final action. See Ill. Att'y Gen. PAC Rev. Ltr. 50318,\nissued January 30, 2018, at 6. This office found that:\nthe letter summarizes past discussions that have been held during\nopen sessions at various Board meetings and the deliberations that\noccurred during the Township Annual Meeting concerning on­\ngoing issues related to Township funds. Further, it does not appear\nfrom the letter, or the meeting minutes, that the Board has come to\na decision on how to handle the funds at issue. Therefore, this\nletter cannot be characterized as a \"final action\" by the Board. Ill.\nAtt'y Gen. PAC Rev. Ltr. 50318, issued January 30, 2018, at 6.\nSimilarly, here, the May 17, 2018, e-mail statement is not a final action. Most of the e-mail\nconsists of factual or philosophical statements, none of which can be construed as asserting a\nnew policy or deciding a Board matter. The final sentence, \"[f]urthermore we do not agree with\nnor support the comments made in the released emails and will not endorse discriminatory\npolicies of any kind,\" 13 reflects the only definitive positions taken by the members: that they\ndisagree with\nI comments, and that they will not endorse discriminatory policies.\ne-mail comments are his opinions, none of which are binding on the Board.\nLikewise, the six members' expression of disagreement is a statement of opinion that has no\nbinding effect on the Board and does not resolve any matter of Board business. Even if the\nopinion could be considered relevant to Board policy accommodating transgender students, the\nopinion was merely an interim decision on a Board matter, and this office has found that interim\ndecisions do not constitute final action. See Ill. Att'y Gen. PAC Rev. Ltr. 54002, issued October\n22, 2018, at 8 (concluding that a University Board of Trustees' decision to publically voice its\nsupport for an individual to become University President was an interim decision at the time of\nthe Request for Review, rather than a final action).\n\n■■■■■\n\nFurther, stating that the members would not endorse any discriminatory policies is\nnot an assertion of a new policy position, as promising not to discriminate is a fundamental\n\n13 Letter from S. Jeff Funk to Ms. Laura S. Harter, Assistant Attorney General, Public Access\n\nobligation of public service. In their oaths of office, 14 all seven Board members implicitly\nvowed not to support discriminatory policies by swearing to act in accordance with the equal\nprotection clauses of the United States 15 and Illinois Constitutions. 16\nIn sum, the May 17, 2018, e-mail statement did not constitute final action, as it\ndid not put forth a new Board position, nor was it binding on any Board business. Accordingly,\nthis office concludes that the Board did not improperly take final action outside of a public\nmeeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, LHarter@atg.state.il.us, or (217) 524-7958.\nThis letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n53781 o no vio sd\ncc:\n\nVia electronic mail\nMr. S. Jeff Funk\nMiller, Tracy, Braun, Funk & Miller, Ltd.\n• 316 South Charter\nMonticello, Illinois 6 I 856\njfunk@millertracy.com\n\n14 The Board members' oath provides: \"I, (name), do solemnly swear (or affirm) that I will\nfaithfully discharge the duties ofthe office ofmember ofthe Board of Education ofO'Fallon Community\nConsolidated School District No. 90, in accordance with the Constitution ofthe United States, the Constitution of\nthe State of Illinois, and the laws ofthe State ofIllinois, to the best ofmy ability.\" O'Fallon Community\nConsolidated School District No. 90, Board Policy Manual, §2:80 Board Member Oath and Conduct.\n1\n\n'U.S. Const., amend. XIV, § 1.\n\n16\n\nIll. Const. 1970, art. I, §2."}
{"id":1263,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-01-03","case_number":null,"request_numbers":["53820"],"title":"Columbia School Board violated Open Meetings Act with vague 'personnel items' agenda","filename":"53820, issued January 3, 2019.pdf","rel_path":null,"word_count":3029,"summary":"A school board member alleged that the Board violated the Open Meetings Act by failing to provide sufficient detail on its meeting agenda regarding personnel actions and by failing to properly post an agenda. The PAC determined that the Board violated OMA by failing to provide adequate notice of the specific subject matter of its final actions.","plain_summary":"A school board member complained that the board's meeting agendas were too vague, specifically using the term 'personnel items' without explaining what those items were. The Attorney General's office agreed, stating that public bodies must provide enough detail on agendas so the public understands what actions will be taken. The office concluded that the board violated the Open Meetings Act for its May 17, 2018 meeting, but noted that the board had already re-voted on the items, so no additional action was necessary.","holding":"The Columbia Community Unit School District No. 4 Board of Education violated the Open Meetings Act by failing to provide sufficient detail in its meeting agendas regarding the subject matter of final actions taken.","legal_question":"Whether a public body violates the Open Meetings Act by listing final actions on an agenda under the vague heading of 'personnel items' without providing sufficient detail regarding the subject matter.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Columbia Community Unit School District No. 4 Board of Education","requesting_party":"Tammy Hines","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of agenda descriptions for personnel-related final actions taken by a school board.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_b/53820, issued January 3, 2019.pdf","sha256":"820b84f20f3e4c11d9b4eb6e33b44f6c60837a04fbe11d86c4223cde74d2afb1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","school board","transparency","personnel items","public notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nJanuary 3, 2019\n\nVia electronic mail\n\nThe Honorable Tammy Hines\nBoard Member\n\nColumbia Community Unit School District No. 4\nBoard of Education\n\nVia electronic mail\nDr. Gina Segobiano\nSuperintendent\n\nColumbia Community Unit School District No. 4\n[street address redacted for site publication -- see original PDF]\nsegobiano. gina@columbia4.\n\norg\n\nRE: OMA Request for Review — 2018 PAC 53820\nDear Ms. Hines and Dr. Segobiano:\n\nThis determination\nOMA) ( 5 ILCS\n\nis issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nI20/ 3. 5( e) ( West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Columbia Community Unit School District No. 4 ( District) Board of\nEducation ( Board) violated the requirements of OMA in connection with its May 17, 2018, and\nJune 25, 2018, meetings.\n\nOn June 29, 2018, Ms. Tammy Hines, a member of the Board, submitted a\nRequest for Review alleging that the Board violated OMA during its May 17, 2018, meeting.\nSpecifically, Ms. Hines asserted that after returning from closed session, the Board approved\n\n506 South Second Street, Springfield, Illinois 62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 217) 785- 2771 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph\n\n312) 814- 3000 •\n\nTTY: ( 312) 814- 3374 •\n\nFax: ( 312) 814- 3806\n\nStreet, Chicago,\n\n1001 East Main, Carbondale,\n\nIllinois 60601 • (\n\nIllinois 62901 • ( 618) 529- 6400 •\n\nTTY: ( 618)\n\n529- 6403 •\n\nFax: ( 618)\n\n529- 6416\n\n\fThe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 2\n\nthree motions that were identified on the agenda only as \" personnel items,\" 1 which Ms. Hines\nalleges did not sufficiently identify the general subject matter of the Board' s final actions. Ms.\nHines also alleged that an agenda for the May 17, 2018, meeting was improperly modified less\nthan 48 hours before the May 17, 2018, meeting.\nMs. Hines' Request for Review also alleged that the Board violated OMA by not\n\nposting a copy of the agenda for its June 25, 2018, special meeting on the District' s website at\nleast 48 hours before that meeting commenced; she asserted that the agenda -was not posted until\nsix to eight hours before the meeting.\nOn August 7, 2018, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond to Ms. Hines' allegations. Additionally, this office asked the\nBoard whether the District' s website was maintained by a full- time staff member. On August 13,\n2018, this office received the Board' s response. On August 15, 2018, this office forwarded the\n\nBoard' s response to Ms. Hines; she did not reply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 III. App. 3d\n161,\n\n171 ( 5th Dist. 1989).\n\nNotice of Final Action at May 17, 2018, Meeting\nSection 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2016)) provides that \"[ a] n\n\nagenda for each regular meeting shall be posted at the principal office of the public body and at\nthe location where the meeting is to be held at least 48 hours in advance of the holding of the\n\nmeeting. A public body that has a website that the full- time staff of the public body maintains\nshall also post on its website the agenda of any regular meetings of the governing body of that\npublic body.\" Further, section 2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West 2016)) provides that\n\na] ny agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\"\n\nOMA does riot\n\ncontain a definition of \"general subject matter.\"\n\nColumbia Community Unit School District 4 Board of Education, Agenda Item XI., Items for\nAction after Closed Session, A. Personnel Items ( May 17, 2018).\n2Ms. Hines' Request\nthose\n\nallegations\n\non\n\nAugust\n\nI,\n\n2018.\n\nfor Review contained\nE- mail\n\nadditional\n\nfrom Tammy Hines\n\nto\n\nallegations,\n\nShannon\n\nhowever,\n\nMs. Hines withdrew\n\nBarnaby ( August\n\n1, 2018).\n\n\fThe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 3\n\nThe Senate debate on House Bill No. 4687, which was enacted as Public Act 97-\n\n827, effective January 1, 2013, adding section 2. 02( c) to OMA, indicates that the General\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a\n\ngeneral notice if you' re going to have and take final action,\nas to generally what' s going to be discussed so that —that\npeople who follow their units of local government know what\n\nthey' re going to be acting upon. ( Emphasis added.) Remarks of\nSen. Dillard, May 16, 2012, Senate Debate on House Bill No.\n4687, at 47.\n\nThe Public Access Bureau has previously determined that \" the General Assembly' s use of the\nterm ' general subject matter' signifies that a meeting agenda must set forth the main element( s),\nrather than the specific details, of an item on which the public body intends to take final action.\"\n\n111. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5.\nThe minutes from the May 17, 2018, Board meeting indicate that after returning\nfrom closed session, the Board voted to approve: ( 1) an assignment of the Columbia Middle\nSchool principal; ( 2) 2018- 2019 non- union employee salaries; and ( 3) 2018- 2019 administrative\n\nsalaries. 3 The agenda included language similar to that provided in section 2( c)( 1) of OMA ( 5\nILCS 120/ 2( c)( 1) (\n\nWest 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n\n2018), 4 stating that the Board would be enter closed session for:\nPurposes of employment or dismissal of employees, appointment,\ncompensation, discipline, or dismissal of specific employees of the\n\npublic body or legal counsel for the public body, including hearing\ntestimony on a complaint lodged against an employee of the public\n\n3Columbia Community Unit School District No. 4 Board of Education, Meeting, May 17, 2018,\nMinutes\n\n6.\n\nThe Board' s agenda item for closed session also used certain language from sections 2( c)( 2) and\n\n2( c)( 8) of OMA (5 ILCS 120/ 2( c)( 2), 2( c)( 8) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July\n31, 2018). Those exceptions, which concern collective bargaining and school security, are not relevant to the\nactions\ndisputed by Ms. Hines.\n\n\fThe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 4\n\nbody or against legal counsel for the public body to determine its\n\nvalidity.l51\nThe following agenda item stated:\nItems for Action after Closed session\nA.\n\nPersonnel Items161\n\nIn its response to this office, the Board appears to assert that the language in the\nclosed session section of its agenda coupled with the reference to action on personnel items after\nclosed session provided the public with advance notice of the motions that the Board approved\n\non employee appointment and compensation. When read in tandem, these agenda items may be\nconstrued to indicate that the Board would take some form of action concerning personnel.\nThis office has previously determined that an agenda item for \" personnel matters\"\ndid not provide sufficient advance notice of a public body' s vote to approve an employment\ncontract. See 111. Att' y Gen. PAC Req. Rev. Ltr. 13540, issued June 22, 2011, at 4. Likewise,\nhere, \" personnel items\" could encompass virtually any matter relating to any District personnel.\nFurther, the language in the closed session section of the Board' s agenda did not reasonably\nidentify the general subject matter of the Board' s actions. Even though compensation and\n\nappointment were among the subjects identified as potential topics of discussion, the list\nincluded other irrelevant employment-related topics. Although section 2. 02( c) does not require\n\nthat the agenda identify the subject of possible final action by name or the specific action being\ncontemplated, the Board' s agenda item was too imprecise to provide meaningful notice to the\n\npublic that the Board would take action concerning the assignment of an administrator and the\ncompensation\n\nof employees\n\nand\n\nadministrators.\n\nThe Board argued that a superintendent' s report and an amended agenda provided\n\nto Board members contained a more specific description of the actions to be taken after closed\nsession. However, it is undisputed that members of the public did not receive copies of those\n\nmaterials at least 48 hours prior to the meeting. As discussed above, the intent of section 2. 02( c)\nof OMA is to ensure that an agenda provides members of the public with sufficiently\n\ndescriptive advance notice of the matters upon which a public body anticipates taking final\naction. Providing additional information only to Board members has no relevance to the Board' s\n\nColumbia Community Unit School District 4 Board of Education, Agenda Item X., Closed\nSession ( May 17, 2018).\n\n6Columbia Community Unit School District 4 Board of Education, Agenda Item XI., Items for\nAction\n\nafter\n\nClosed\n\nSession,\n\nA. Personnel\n\nItems (\n\nMay 17, 2018).\n\n\fThe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 5\n\nobligation\n\nunder section 2. 02( c) to provide members of the public with sufficient advance notice\n\nconcerning the Board' s votes.\nAccordingly, this office concludes that the Board violated the notice requirements\nof section 2. 02( c) of OMA with respect to its May 17, 2018, votes on: ( 1) an assignment of the\nColumbia Middle School principal; ( 2) 2018- 2019 non- union employee salaries; and ( 3) 20182019 administrative salaries.\n\nHowever, this office has confirmed that on September 25, 2018,\n\nthe Board re -voted on the two motions approving employee and administrator salaries' and on\nJuly 19, 2018, the Board resolved the issue concerning the assignment of an administrator by a\nvote in open session to approve the Columbia Middle School principal' s contract.$\n\nTherefore, no\n\nadditional action is necessary to remedy these violations.\nAmending of May 17, 2018, Meeting Agenda\nSection 2. 02( a) of OMA requires the posting of an agenda at least 48 hours in\n\nadvance of the holding of a meeting. A public body may not take final action on a matter unless\nit has been properly posted on the agenda at least 48 hours prior to a meeting. See Rice v. Board\nof Trustees of Adams County, 326 III. App. 3d 1120, 1122- 1123 ( 4th Dist. 2002).\nIn its response\n\nto this office,\n\nthe Board acknowledged\n\nthat an amended\n\nagenda\n\nwas provided to Board members at their desks immediately before the start of the May 17, 2018,\nmeeting. As noted above, the revision to the relevant agenda item appears to have been intended\nto provide the Board with additional information; it did not add or remove any items proposed\nfor final action. It is undisputed, however, that the publicly posted agenda remained unchanged,\nand continuously available for viewing, for the 48 hours before the meeting commenced.\nThe requirements of OMA in section 2. 02 of OMA are limited to publicly posted\nagendas that provide advance notice to the public. See 111. Att' y Gen. PAC Req. Rev. Ltr. 25275,\nissued December\n\n17, 2018, at 3.\n\nTherefore, although section 2. 02( a) of OMA does not permit a\n\npublic body to take final action on an agenda item that was revised on a publicly posted agenda\nless than 48 hours before the meeting commenced, no provision of OMA prohibits a public body\nfrom separately amending an internal agenda to provide additional details on agenda items to\nbetter inform board members of what is expected to transpire at a meeting. Accordingly, this\n\nColumbia Community Unit School District No. 4 Board of Education, Meeting, September 25,\n2018,\n\nMinutes\n\n6.\n\nColumbia Community Unit School District No. 4 Board of Education, Meeting, July 19, 2018,\nMinutes 6 ( August 16, 2018).\n\n\fThe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 6\n\noffice concludes that the Board' s amendments to the intemal version of its May 17, 2018,\nmeeting agenda did not violate section 2. 02( a) of OMA.\nMeeting Notice for June 25, 2018, Special Meeting\nSection 2. 02( a) of OMA provides, in pertinent part, that \"[ p] ublic notice of any\nshall be given at least 48 hours before such meeting, which notice shall\nalso include the agenda for the special\" meeting. Section 2. 02( b) of OMA ( 5 ILCS 120/ 2. 02( 6)\nspecial\n\nmeeting * * *\n\nWest 2016))\n\nfurther provides:\n\nPublic notice shall be given by posting a copy of the notice\nat the principal office of the body holding the meeting or, if no\nsuch office exists, at the building in which the meeting is to be\nheld. In addition, a public body that has a website that the fulltime staff of the public body maintains shall post notice on its\nwebsite of all meetings of the governing body of the public\nbody. ( Emphasis added.)\nAccordingly, under section 2. 02( b) of OMA, a public body is required to post a copy of the\n\nagenda of a special meeting on its website 48 hours before the meeting, if its full- time staff\nmaintains the website. See, e.g., 111. Att' y Gen. PAC Req. Rev. Ltr. 39850, issued July 31, 2017,\nat 3- 4.\n\nMs. Hines' Request for Review alleged that that the Board violated OMA by not\nposting notice of its June 25, 2018, special meeting on the District' s website at least 48 hours\nbefore that meeting commenced. The Board' s response to this office acknowledged that the\nagenda was not timely posted to the website but explained that the full- time staff member\n\nresponsible for the website posting was on vacation when the agenda should have been posted.\nThe Board argued that its failure to post the agenda to its website did not violate OMA because it\n\nprovided proper physical notice of the special meeting by posting copies of the meeting agenda\non the front door of the District office 48 hours before the meeting and by e - mailing the agenda\nto the faculty and staff of the District and members of the Board.\nUnder the plain language of section 2. 02( b) of OMA, the Board was required to\n\npost notice of the June 25, 2018, special meeting at the Board' s principal office and on its\nwebsite. Adopting the Board' s argument that a public body with a website maintained by a fulltime staff member somehow complies with this provision by only posting an agenda at the\n\nBoard' s principal office and by e -mailing the agenda to Board members is contrary to the plain\nlanguage of section 2. 02( b), which expressly requires the posting of the agenda on the website.\nHayashi\n\nv.\n\nIllinois\n\nDepartment\n\nof Financial\n\nand\n\nProfessional\n\nRegulation,\n\n2014 IL 116023, ¶ 16,\n\n\fhe Honorable Tammy Hines\nDr. Gina Segobiano\n\nJanuary 3, 2019\nPage 7\n\n25 N. E. 3d 570, 576 ( 2013) ( Where the language of a statute is clear and unambiguous, a\n\nreviewing body \" may not depart from the plain language by reading into the statute exceptions,\nlimitations,\n\nor conditions\n\nthat the legislature\n\ndid not express.\").\n\nThere are no exceptions\n\nto\n\nOMA' s website posting requirements for situations in which individuals responsible for website\n\nposting are on vacation— it is incumbent on a public body to make alternative arrangements to\n\nfully comply with the advance notice requirements of OMA. 9 Accordingly, this office concludes\nthat the Board violated section 2. 02( 6) of OMA by failing to post the agenda for its June 25,\n\n2018, meeting to the District' s website 48 hours before the meeting commenced .\nBecause the Board indicated in its response to this office that it is taking measures\nto prevent similar errors in the future1° and because at least one copy of the agenda was posted at\nthe District' s principal office and available for public inspection at least 48 hours before the\n\nmeeting, no further remedial action is required in this instance.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have\nquestions, you may contact me by mail at the Chicago address on the first page of this letter, by\ne- mail at sbarnaby@atg. state. il. us, or by phone at ( 312) 550- 4480. Thank you.\nVery truly yours,\n\nSHANNON\n\nBARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n53820\n\no 202 notice\n\nproper\n\nimproper\n\nsd\n\nNotably, section 2. 02( c) of OMA provides, in pertinent part: \" If a notice or agenda is not\n\ncontinuously available for the full 48- hour period due to actions outside of the control of the public body, then that\nlack of availability does not invalidate any meeting or action taken at a meeting.\" In contrast to the foreseeable\ncircumstances of this matter, the Public Access Bureau has previously determined that a village council substantially\ncomplied with the notice requirements of OMA when its agenda was posted four days before the meeting but was\ninadvertently removed from the council' s website by its agenda management software provider during an update to\nits system. See 111. Att' y Gen PAC Req. Rev. Ltr. 25618, issued December 5, 2013.\n\n10The Board' s response to this office indicated that the individual responsible for posting the\nagenda on the District' s website will provide the relevant posting instructions to other persons so that the agenda can\nstill\n\nbe posted in her absence.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda descriptions for personnel actions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53820/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nJanuary 3, 2019\n\nVia electronic mail\n\nThe Honorable Tammy Hines\nBoard Member\n\nColumbia Community Unit School District No. 4\nBoard of Education\n\nVia electronic mail\nDr. Gina Segobiano\nSuperintendent\n\nColumbia Community Unit School District No. 4\n[street address redacted for site publication -- see original PDF]\nsegobiano. gina@columbia4.\n\norg\n\nRE: OMA Request for Review — 2018 PAC 53820\nDear Ms. Hines and Dr. Segobiano:\n\nThis determination\nOMA) (5 ILCS\n\nis issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nI20/ 3. 5(e) (West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Columbia Community Unit School District No. 4 (District) Board of\nEducation (Board) violated the requirements of OMA in connection with its May 17, 2018, and\nJune 25, 2018, meetings.\n\nOn June 29, 2018, Ms. Tammy Hines, a member of the Board, submitted a\nRequest for Review alleging that the Board violated OMA during its May 17, 2018, meeting.\nSpecifically, Ms. Hines asserted that after returning from closed session, the Board approved\n\nthree motions that were identified on the agenda only as \" personnel items,\" 1 which Ms. Hines\nalleges did not sufficiently identify the general subject matter of the Board's final actions. Ms.\nHines also alleged that an agenda for the May 17, 2018, meeting was improperly modified less\nthan 48 hours before the May 17, 2018, meeting.\nMs. Hines' Request for Review also alleged that the Board violated OMA by not\n\nposting a copy of the agenda for its June 25, 2018, special meeting on the District's website at\nleast 48 hours before that meeting commenced; she asserted that the agenda -was not posted until\nsix to eight hours before the meeting.\nOn August 7, 2018, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond to Ms. Hines' allegations. Additionally, this office asked the\nBoard whether the District's website was maintained by a full- time staff member. On August 13,\n2018, this office received the Board's response. On August 15, 2018, this office forwarded the\n\nBoard's response to Ms. Hines; she did not reply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 III. App. 3d\n161,\n\n171 (5th Dist. 1989).\n\nNotice of Final Action at May 17, 2018, Meeting\nSection 2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2016)) provides that \"[ a] n\n\nagenda for each regular meeting shall be posted at the principal office of the public body and at\nthe location where the meeting is to be held at least 48 hours in advance of the holding of the\n\nmeeting. A public body that has a website that the full- time staff of the public body maintains\nshall also post on its website the agenda of any regular meetings of the governing body of that\npublic body.\" Further, section 2. 02(c) of OMA (5 ILCS 120/ 2. 02(c) (West 2016)) provides that\n\na] ny agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\"\n\nOMA does riot\n\ncontain a definition of \"general subject matter.\"\n\nColumbia Community Unit School District 4 Board of Education, Agenda Item XI., Items for\nAction after Closed Session, A. Personnel Items (May 17, 2018).\n2 Ms. Hines' Request\nthose\n\nallegations\n\non\n\nAugust\n\nI,\n\n2018.\n\nfor Review contained\nE- mail\n\nadditional\n\nfrom Tammy Hines\n\nto\n\nallegations,\n\nShannon\n\nThe Senate debate on House Bill No. 4687, which was enacted as Public Act 97-\n\n827, effective January 1, 2013, adding section 2. 02(c) to OMA, indicates that the General\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a\n\ngeneral notice if you' re going to have and take final action,\nas to generally what's going to be discussed so that —that\npeople who follow their units of local government know what\n\nthey' re going to be acting upon. (Emphasis added.) Remarks of\nSen. Dillard, May 16, 2012, Senate Debate on House Bill No.\n4687, at 47.\n\nThe Public Access Bureau has previously determined that \" the General Assembly's use of the\nterm ' general subject matter' signifies that a meeting agenda must set forth the main element(s),\nrather than the specific details, of an item on which the public body intends to take final action.\"\n\n111. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5.\nThe minutes from the May 17, 2018, Board meeting indicate that after returning\nfrom closed session, the Board voted to approve: (1) an assignment of the Columbia Middle\nSchool principal; (2) 2018- 2019 non- union employee salaries; and (3) 2018- 2019 administrative\n\nsalaries. 3 The agenda included language similar to that provided in section 2(c)(1) of OMA (5\nILCS 120/ 2(c)(1) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n\n2018), 4 stating that the Board would be enter closed session for:\nPurposes of employment or dismissal of employees, appointment,\ncompensation, discipline, or dismissal of specific employees of the\n\npublic body or legal counsel for the public body, including hearing\ntestimony on a complaint lodged against an employee of the public\n\n3 Columbia Community Unit School District No. 4 Board of Education, Meeting, May 17, 2018,\nMinutes\n\n6.\n\nThe Board's agenda item for closed session also used certain language from sections 2(c)(2) and\n\n2(c)(8) of OMA (5 ILCS 120/ 2(c)(2), 2(c)(8) (West 2017 Supp.), as amended by Public Act 100- 646, effective July\n31, 2018). Those exceptions, which concern collective bargaining and school security, are not relevant to the\n\nbody or against legal counsel for the public body to determine its\n\nvalidity.l51\nThe following agenda item stated:\nItems for Action after Closed session\nA.\n\nPersonnel Items161\n\nIn its response to this office, the Board appears to assert that the language in the\nclosed session section of its agenda coupled with the reference to action on personnel items after\nclosed session provided the public with advance notice of the motions that the Board approved\n\non employee appointment and compensation. When read in tandem, these agenda items may be\nconstrued to indicate that the Board would take some form of action concerning personnel.\nThis office has previously determined that an agenda item for \" personnel matters\"\ndid not provide sufficient advance notice of a public body's vote to approve an employment\ncontract. See 111. Att' y Gen. PAC Req. Rev. Ltr. 13540, issued June 22, 2011, at 4. Likewise,\nhere, \" personnel items\" could encompass virtually any matter relating to any District personnel.\nFurther, the language in the closed session section of the Board's agenda did not reasonably\nidentify the general subject matter of the Board's actions. Even though compensation and\n\nappointment were among the subjects identified as potential topics of discussion, the list\nincluded other irrelevant employment-related topics. Although section 2. 02(c) does not require\n\nthat the agenda identify the subject of possible final action by name or the specific action being\ncontemplated, the Board's agenda item was too imprecise to provide meaningful notice to the\n\npublic that the Board would take action concerning the assignment of an administrator and the\ncompensation\n\nof employees\n\nand\n\nadministrators.\n\nThe Board argued that a superintendent's report and an amended agenda provided\n\nto Board members contained a more specific description of the actions to be taken after closed\nsession. However, it is undisputed that members of the public did not receive copies of those\n\nmaterials at least 48 hours prior to the meeting. As discussed above, the intent of section 2. 02(c)\nof OMA is to ensure that an agenda provides members of the public with sufficiently\n\ndescriptive advance notice of the matters upon which a public body anticipates taking final\naction. Providing additional information only to Board members has no relevance to the Board's\n\nColumbia Community Unit School District 4 Board of Education, Agenda Item X., Closed\nSession (May 17, 2018).\n\n6 Columbia Community Unit School District 4 Board of Education, Agenda Item XI., Items for\nAction\n\nafter\n\nobligation\n\nunder section 2. 02(c) to provide members of the public with sufficient advance notice\n\nconcerning the Board's votes.\nAccordingly, this office concludes that the Board violated the notice requirements\nof section 2. 02(c) of OMA with respect to its May 17, 2018, votes on: (1) an assignment of the\nColumbia Middle School principal; (2) 2018- 2019 non- union employee salaries; and (3) 20182019 administrative salaries.\n\nHowever, this office has confirmed that on September 25, 2018,\n\nthe Board re -voted on the two motions approving employee and administrator salaries' and on\nJuly 19, 2018, the Board resolved the issue concerning the assignment of an administrator by a\nvote in open session to approve the Columbia Middle School principal's contract.$\n\nTherefore, no\n\nadditional action is necessary to remedy these violations.\nAmending of May 17, 2018, Meeting Agenda\nSection 2. 02(a) of OMA requires the posting of an agenda at least 48 hours in\n\nadvance of the holding of a meeting. A public body may not take final action on a matter unless\nit has been properly posted on the agenda at least 48 hours prior to a meeting. See Rice v. Board\nof Trustees of Adams County, 326 III. App. 3d 1120, 1122- 1123 (4th Dist. 2002).\nIn its response\n\nto this office,\n\nthe Board acknowledged\n\nthat an amended\n\nagenda\n\nwas provided to Board members at their desks immediately before the start of the May 17, 2018,\nmeeting. As noted above, the revision to the relevant agenda item appears to have been intended\nto provide the Board with additional information; it did not add or remove any items proposed\nfor final action. It is undisputed, however, that the publicly posted agenda remained unchanged,\nand continuously available for viewing, for the 48 hours before the meeting commenced.\nThe requirements of OMA in section 2. 02 of OMA are limited to publicly posted\nagendas that provide advance notice to the public. See 111. Att' y Gen. PAC Req. Rev. Ltr. 25275,\nissued December\n\n17, 2018, at 3.\n\nTherefore, although section 2. 02(a) of OMA does not permit a\n\npublic body to take final action on an agenda item that was revised on a publicly posted agenda\nless than 48 hours before the meeting commenced, no provision of OMA prohibits a public body\nfrom separately amending an internal agenda to provide additional details on agenda items to\nbetter inform board members of what is expected to transpire at a meeting. Accordingly, this\n\nColumbia Community Unit School District No. 4 Board of Education, Meeting, September 25,\n2018,\n\noffice concludes that the Board's amendments to the intemal version of its May 17, 2018,\nmeeting agenda did not violate section 2. 02(a) of OMA.\nMeeting Notice for June 25, 2018, Special Meeting\nSection 2. 02(a) of OMA provides, in pertinent part, that \"[ p] ublic notice of any\nshall be given at least 48 hours before such meeting, which notice shall\nalso include the agenda for the special\" meeting. Section 2. 02(b) of OMA (5 ILCS 120/ 2. 02(6)\nspecial\n\nmeeting * * *\n\nWest 2016))\n\nfurther provides:\n\nPublic notice shall be given by posting a copy of the notice\nat the principal office of the body holding the meeting or, if no\nsuch office exists, at the building in which the meeting is to be\nheld. In addition, a public body that has a website that the fulltime staff of the public body maintains shall post notice on its\nwebsite of all meetings of the governing body of the public\nbody. (Emphasis added.)\nAccordingly, under section 2. 02(b) of OMA, a public body is required to post a copy of the\n\nagenda of a special meeting on its website 48 hours before the meeting, if its full- time staff\nmaintains the website. See, e.g., 111. Att' y Gen. PAC Req. Rev. Ltr. 39850, issued July 31, 2017,\nat 3- 4.\n\nMs. Hines' Request for Review alleged that that the Board violated OMA by not\nposting notice of its June 25, 2018, special meeting on the District's website at least 48 hours\nbefore that meeting commenced. The Board's response to this office acknowledged that the\nagenda was not timely posted to the website but explained that the full- time staff member\n\nresponsible for the website posting was on vacation when the agenda should have been posted.\nThe Board argued that its failure to post the agenda to its website did not violate OMA because it\n\nprovided proper physical notice of the special meeting by posting copies of the meeting agenda\non the front door of the District office 48 hours before the meeting and by e - mailing the agenda\nto the faculty and staff of the District and members of the Board.\nUnder the plain language of section 2. 02(b) of OMA, the Board was required to\n\npost notice of the June 25, 2018, special meeting at the Board's principal office and on its\nwebsite. Adopting the Board's argument that a public body with a website maintained by a fulltime staff member somehow complies with this provision by only posting an agenda at the\n\nBoard's principal office and by e -mailing the agenda to Board members is contrary to the plain\nlanguage of section 2. 02(b), which expressly requires the posting of the agenda on the website.\nHayashi\n\nv.\n\nIllinois\n\nDepartment\n\nof Financial\n\n25 N. E. 3d 570, 576 (2013) (Where the language of a statute is clear and unambiguous, a\n\nreviewing body \" may not depart from the plain language by reading into the statute exceptions,\nlimitations,\n\nor conditions\n\nthat the legislature\n\ndid not express.\").\n\nThere are no exceptions\n\nto\n\nOMA's website posting requirements for situations in which individuals responsible for website\n\nposting are on vacation— it is incumbent on a public body to make alternative arrangements to\n\nfully comply with the advance notice requirements of OMA. 9 Accordingly, this office concludes\nthat the Board violated section 2. 02(6) of OMA by failing to post the agenda for its June 25,\n\n2018, meeting to the District's website 48 hours before the meeting commenced.\nBecause the Board indicated in its response to this office that it is taking measures\nto prevent similar errors in the future1° and because at least one copy of the agenda was posted at\nthe District's principal office and available for public inspection at least 48 hours before the\n\nmeeting, no further remedial action is required in this instance.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have\nquestions, you may contact me by mail at the Chicago address on the first page of this letter, by\ne- mail at sbarnaby@atg. state. il. us, or by phone at (312) 550- 4480. Thank you.\nVery truly yours,\n\nSHANNON\n\nBARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n53820\n\no 202 notice\n\nproper\n\nimproper\n\nsd\n\nNotably, section 2. 02(c) of OMA provides, in pertinent part: \" If a notice or agenda is not\n\ncontinuously available for the full 48- hour period due to actions outside of the control of the public body, then that\nlack of availability does not invalidate any meeting or action taken at a meeting.\" In contrast to the foreseeable\ncircumstances of this matter, the Public Access Bureau has previously determined that a village council substantially\ncomplied with the notice requirements of OMA when its agenda was posted four days before the meeting but was\ninadvertently removed from the council's website by its agenda management software provider during an update to\nits system. See 111. Att' y Gen PAC Req. Rev. Ltr. 25618, issued December 5, 2013.\n\n10 The Board's response to this office indicated that the individual responsible for posting the\nagenda on the District's website will provide the relevant posting instructions to other persons so that the agenda can\nstill\n\nbe posted in her absence."}
{"id":1266,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-12-28","case_number":null,"request_numbers":["53883"],"title":"Zion-Benton High School Board not found in violation over unclear public comment timing","filename":"53883, issued December 28, 2018.pdf","rel_path":null,"word_count":1708,"summary":"A requester alleged that a school board violated the Open Meetings Act by preventing her husband from participating in public comment, but the PAC found insufficient evidence to determine a violation occurred.","plain_summary":"A citizen complained that a school board unfairly stopped her husband from speaking during a public meeting. The Attorney General's office reviewed the case but could not determine if the board broke the law because it was unclear exactly when the husband tried to speak. The office closed the case but advised the board to be clearer in the future about when public comment periods are ending.","holding":"The PAC was unable to conclude that the Board violated OMA because the facts regarding the timing of the public comment request were unclear.","legal_question":"Did the Board violate Section 2.06(g) of the Open Meetings Act by allegedly prohibiting a member of the public from addressing the Board during the public comment portion of a meeting?","disposition":"insufficient_info","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Zion-Benton Township High School District 126 Board of Education","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Insufficient information to conclude violation","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerns whether a member of the public was improperly denied the opportunity to provide public comment during a school board meeting.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Reasonable-rules/53883, issued December 28, 2018.pdf","sha256":"1568bfea7a4acb1f355c41cf2b42aa91be7c2f9f468bf027daaf6c68cf5ca34b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","school board","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nDecember 28, 2018\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nSteven M. Richart\nHodges Loizzi Eisenhammer Rodick & Kohn LLP\n\n3030 Salt Creek Ln., Suite 202\nArlington Heights, IL 60005\nsrichart@hlerk. com\n\nRE:\n\nDear\n\nOMA Requests for Review — 2018 PAC 53883\n\nand Mr. Richart:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\n120/ 3. 5( e) ( West 2016)). For the reasons discussed below, the Public\n\nAct ( OMA) ( 5 ILCS\n\nAccess Bureau is unable to conclude that the Zion -Benton Township High School District 126\nBoard of Education ( Board) violated OMA in connection with its June 28, 2018, meeting.\n\nOn July 5, 2018,\n\nsubmitted a Request for Review alleging that\n\nthe Board prohibited her husband,\n\nfrom participating in the public comment\n\nportion of its June 28, 2018, meeting because he did not sign up to speak. On July 16, 2018, this\noffice sent a copy of the Request for Review to the Board president and asked for a copy of the\nBoard' s public comment rules and a response to\n\nallegation.\n\nOn August 22, 2018,\n\ncounsel for the Board furnished those materials. On September 6, 2018,\n\nreplied to\n\nthat response. On September 17, 2018, both parties submitted additional information to this\noffice.\n\n500 South\n\nSecond\n\nStreet, Springfield,\n\n100 West Randolph\n1001\n\nStreet, Chicago,\n\nEast Main,\n\nIllinois 62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 217) 785 - 2771 •\n\nFax: ( 217) 782- 7046\n\nIllinois, 60601 • (\n\n312) 814- 3000 •\n\nTTY: ( 312) 814- 3374 •\n\nFax: ( 312) 814- 3806\n\nCarbondale, Illinois 62901 • ( 618) 529- 6400 •\n\nTTY: ( 618) 529- 6403 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMr. Steven M. Richart\nDecember 28, 2018\nPage 2\n\nDETERMINATION\n\nSection 2. 06( g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rulesestablished and recorded by the public\nbody.\" Although OMA does not specifically address the types of public comment rules that a\n\npublic body may adopt, courts have clarified that public bodies may promulgate reasonable\ntime, place, and manner\" restrictions that are narrowly - tailored and necessary to further a\nsignificant governmental interest. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp.\n\n2d 912, 922 ( N. D. Ill. 2009). For example, a public body may adopt reasonable rules governing\npublic comment in order to maintain decorum and ensure that meetings are conducted efficiently.\n\nTimmon v. Wood, 633 F. Supp. 2d 453, 465 ( W.D. Mich. 2008); see also I11. Att'y Gen. Pub.\nAcc. Op. No. 14- 009, at 4. However, such rules must tend to accommodate, rather than to\n\nunreasonably restrict, the right to address public officials. See IA. Rana Enterprises, Inc., 630 F.\nSupp. 2d at 923- 25; Timmon, 633 F. Supp. 2d at 459.\n\nThe Board' s public comment rules provide that speakers may \"[ a] ddress the Board\nonly at the appropriate time as indicated on the agenda and when recognized by the Board\nPresident.\"'\n\nIn her Request for Review,\n\nalleged that after she and another member of\n\nthe public addressed the Board under the fourth agenda item which designated time, for public\n\ncomment,\n\nrequested an opportunity to do so before the Board moved on to the next\n\nagenda item. According to\nthe Board president responded that it was too late and\nthat\ncould not speak because he had not placed his name on the sign- up sheet.\nstated that the Board' s established and recorded rules governing public comment do not\nrequire speakers to sign a sign- up sheet.\nThe Board' s response to this office acknowledged\n\nthat its rules do not require\n\nspeakers to sign up to speak. The Board stated that it has a longstanding practice of using a signup sheet to facilitate public comment, but denied that\nwas prohibited from speaking\nbecause he did not sign up. The Board' s response asserted that the Board president only referred\n\nto\nthe Board,\n\nnot signing the sign- up sheet because he had signed it in the past. According to\ndid not request an opportunity to speak until \" the Board had already\n\nclosed the public comment portion of the meeting agenda and moved into the next agenda item,\nand a motion had been made and seconded to approve the consent agenda.\" 2 The Board' s\nmeeting\n\nminutes\n\nprovide:\n\nZion -Benton Township High School District 126 Board of Education Policy 2: 230 ( revised\nAugust 27, 2009).\n\n2Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP ( August 22,\n2018),\n\nat 2.\n\n\fMr. Steven M. Richart\nDecember 28, 2018\nPage 3\n\nA motion was made by Secretary Leech, seconded by\nMember Roberts to approve the Consent Agenda.\n\nCitizen\n\ninterrupted the business portion of the meeting and\nrequested to address the Board.\n\nPresident White advised that\n\npublic comment had concluded. President White called for the roll\n\nand the motion was approved by a roll call vote of members\n\npresent voting 4- 1. 13]\nIn her reply,\n\nreiterated that the Board president cited\n\nnot\n\nsigning the sign- up sheet as a reason for denying him an opportunity to address the Board and\nstated that the current Board president did not conclude the public comment portion of the\n\nmeeting by announcing public comment was closed or by asking the audience if anyone else\nwished to speak. Because of that omission, she asserted,\nhad no opportunity to\nrequest to speak before the Board president had moved on to the next agenda item: \" While\n\nmay have interrupted the meeting, it was not a flagrant interruption, as\nwas\nonly trying to address the Board to have an opportunity to speak. i4 She stated that at the\nfollowing meeting, the Board president did ask the public if anyone wished to address the Board\nbefore closing public comment and moving on to the next agenda item.\nOn September 17, 2018, counsel for the Board submitted an additional response\n\nstating that\n\ndid not approach the podium to speak even though\n\nhad\n\naddressed the Board from the podium and returned to her seat.\nIf\n\nhad wanted to speak at that time, he would have\n\nstood up and approached the podium as he has done at prior\nmeetings and as he has witnessed others do at several meetings he\nhas attended[.] * * *\n\nHowever, it appears that what happened is\n\nthat he changed his mind and decided to speak only after the Board\nhad moved on to the next agenda item. ( Indeed, I am told that\n\nwhen he first spoke up, he explicitly stated that he had not ,\noriginally intended to speak to the Board, but he wished to do so\nnow.). 01\n\n3Zion- Benton Township High School District 126 Board of Education, Regular Meeting, June 28,\n2018, Minutes 1- 2.\n\nLetter from\n\nto Steve Silverman, Bureau Chief, Public Access Bureau, Office of the\n\nAttorney General ( undated).\n\n5E -mail from Steven M. Richart, Attorney, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP,\nto [ Steve]\n\nSilverman ( September 17, 2018).\n\n\fMr. Steven M. Richart\nDecember 28, 2018\nPage 4\n\nOn the same date,\n\nreplied that the Board president did not ask if any other members\n\nof the public wished to speak or \" close the public comment portion of the meeting and instead\nwent right to the next agenda item so quickly that no one in the audience, including myself a\ni6\n\nformer board member\n\nand\n\nsomeone\n\nvery\n\nwell\n\nversed\n\nin the process,\n\nknew what was\n\nhappening.\n\nThe Board has expressly denied that it prohibited\nfrom speaking\nbecause he did not sign the sign- up sheet that it uses to facilitate public comment. Although the\nBoard president referred to\nnot signing the sign- up sheet when he denied his request\nto speak after the Board moved on to the next agenda item, there is insufficient evidence for this\n\noffice to conclude the prohibition was based on the sign- up sheet rather than its rule that limits\npublic comment to the designated public comment portion of the meeting. Such a rule is content\nneutral and promotes efficiency and decorum by preventing interruptions. See I11. Att' y Gen.\n\nReq. Rev. Ltr. 42969, issued May 25, 2017 ( a public body that provides an opportunity for the\npublic to speak at the time provided for in its established and recorded rules is not required to\n\nprovide additional opportunities for public comment during other parts of a meeting).\n\nAccordingly, this office concludes that the Board' s rule is permissible section 2. 06( g) of OMA.\nIf the Board had ended the public comment portion of the meeting and\n\ntransitioned to the next agenda item so abruptly that members of the public did not have a\nmeaningful opportunity to invoke their right to speak, the Board could have violated section\n\n2. 06( g) of OMA. In light of the parties' conflicting accounts, however, this office is unable to\ndetermine that the Board did so. It is unclear precisely when\ndetermined that he\nwished to speak and whether he had an adequate opportunity to express that intent before the\nBoard moved on to the next agenda item. Accordingly, this office is unable to conclude that the\nBoard violated OMA by prohibiting\nfrom addressing the Board after the public\ncomment portion of the meeting ended. Nevertheless, because it appears that there may have\nbeen confusion concerning the timing of the public comment portion of the meeting, this office\n\nrecommends that the Board clearly communicate its intent to conclude public comment before\nmoving on to the next agenda item to ensure that members of the public have an adequate\nopportunity to invoke their statutory right to address the Board.\n\n6E -mail from\n\nto [ Steve] Silverman ( September 17, 2018).\n\n\fMr. Steven M. Richart\nDecember 28, 2018\nPage 5\n\nThe Public Access Counselor had determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756 or ssilverman@atg. state. il.us. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n53883 206g pub\n\ncomment\n\nproper\n\nsd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's denial of public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53883/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY\n\nGENERAL\n\nDecember 28, 2018\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nSteven M. Richart\nHodges Loizzi Eisenhammer Rodick & Kohn LLP\n\n3030 Salt Creek Ln., Suite 202\nArlington Heights, IL 60005\nsrichart@hlerk. com\n\nRE:\n\nDear\n\nOMA Requests for Review — 2018 PAC 53883\n\nand Mr. Richart:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\n120/ 3. 5(e) (West 2016)). For the reasons discussed below, the Public\n\nAct (OMA) (5 ILCS\n\nAccess Bureau is unable to conclude that the Zion -Benton Township High School District 126\nBoard of Education (Board) violated OMA in connection with its June 28, 2018, meeting.\n\nOn July 5, 2018,\n\nsubmitted a Request for Review alleging that\n\nthe Board prohibited her husband,\n\nfrom participating in the public comment\n\nportion of its June 28, 2018, meeting because he did not sign up to speak. On July 16, 2018, this\noffice sent a copy of the Request for Review to the Board president and asked for a copy of the\nBoard's public comment rules and a response to\n\nallegation.\n\nOn August 22, 2018,\n\ncounsel for the Board furnished those materials. On September 6, 2018,\n\nreplied to\n\nthat response. On September 17, 2018, both parties submitted additional information to this\noffice.\n\n500 South\n\nSecond\n\nStreet, Springfield,\n\n100 West Randolph\n1001\n\nStreet, Chicago,\n\nEast Main,\n\nIllinois 62701 • (217) 782- 1090 •\n\nTTY: (217) 785 - 2771 •\n\nFax: (217) 782- 7046\n\nIllinois, 60601 • (312) 814- 3000 •\n\nTTY: (312) 814- 3374 •\n\nDETERMINATION\n\nSection 2. 06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rulesestablished and recorded by the public\nbody.\" Although OMA does not specifically address the types of public comment rules that a\n\npublic body may adopt, courts have clarified that public bodies may promulgate reasonable\ntime, place, and manner\" restrictions that are narrowly - tailored and necessary to further a\nsignificant governmental interest. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp.\n\n2d 912, 922 (N. D. Ill. 2009). For example, a public body may adopt reasonable rules governing\npublic comment in order to maintain decorum and ensure that meetings are conducted efficiently.\n\nTimmon v. Wood, 633 F. Supp. 2d 453, 465 (W.D. Mich. 2008); see also I11. Att'y Gen. Pub.\nAcc. Op. No. 14- 009, at 4. However, such rules must tend to accommodate, rather than to\n\nunreasonably restrict, the right to address public officials. See IA. Rana Enterprises, Inc., 630 F.\nSupp. 2d at 923- 25; Timmon, 633 F. Supp. 2d at 459.\n\nThe Board's public comment rules provide that speakers may \"[ a] ddress the Board\nonly at the appropriate time as indicated on the agenda and when recognized by the Board\nPresident.\"'\n\nIn her Request for Review,\n\nalleged that after she and another member of\n\nthe public addressed the Board under the fourth agenda item which designated time, for public\n\ncomment,\n\nrequested an opportunity to do so before the Board moved on to the next\n\nagenda item. According to\nthe Board president responded that it was too late and\nthat\ncould not speak because he had not placed his name on the sign- up sheet.\nstated that the Board's established and recorded rules governing public comment do not\nrequire speakers to sign a sign- up sheet.\nThe Board's response to this office acknowledged\n\nthat its rules do not require\n\nspeakers to sign up to speak. The Board stated that it has a longstanding practice of using a signup sheet to facilitate public comment, but denied that\nwas prohibited from speaking\nbecause he did not sign up. The Board's response asserted that the Board president only referred\n\nto\nthe Board,\n\nnot signing the sign- up sheet because he had signed it in the past. According to\ndid not request an opportunity to speak until \" the Board had already\n\nclosed the public comment portion of the meeting agenda and moved into the next agenda item,\nand a motion had been made and seconded to approve the consent agenda.\" 2 The Board's\nmeeting\n\nminutes\n\nprovide:\n\nA motion was made by Secretary Leech, seconded by\nMember Roberts to approve the Consent Agenda.\n\nCitizen\n\ninterrupted the business portion of the meeting and\nrequested to address the Board.\n\nPresident White advised that\n\npublic comment had concluded. President White called for the roll\n\nand the motion was approved by a roll call vote of members\n\npresent voting 4- 1. 13]\nIn her reply,\n\nreiterated that the Board president cited\n\nnot\n\nsigning the sign- up sheet as a reason for denying him an opportunity to address the Board and\nstated that the current Board president did not conclude the public comment portion of the\n\nmeeting by announcing public comment was closed or by asking the audience if anyone else\nwished to speak. Because of that omission, she asserted,\nhad no opportunity to\nrequest to speak before the Board president had moved on to the next agenda item: \" While\n\nmay have interrupted the meeting, it was not a flagrant interruption, as\nwas\nonly trying to address the Board to have an opportunity to speak. i4 She stated that at the\nfollowing meeting, the Board president did ask the public if anyone wished to address the Board\nbefore closing public comment and moving on to the next agenda item.\nOn September 17, 2018, counsel for the Board submitted an additional response\n\nstating that\n\ndid not approach the podium to speak even though\n\nhad\n\naddressed the Board from the podium and returned to her seat.\nIf\n\nhad wanted to speak at that time, he would have\n\nstood up and approached the podium as he has done at prior\nmeetings and as he has witnessed others do at several meetings he\nhas attended[.] * * *\n\nHowever, it appears that what happened is\n\nthat he changed his mind and decided to speak only after the Board\nhad moved on to the next agenda item. (Indeed, I am told that\n\nwhen he first spoke up, he explicitly stated that he had not,\noriginally intended to speak to the Board, but he wished to do so\nnow.). 01\n\n3 Zion- Benton Township High School District 126 Board of Education, Regular Meeting, June 28,\n2018, Minutes 1- 2.\n\nLetter from\n\nOn the same date,\n\nreplied that the Board president did not ask if any other members\n\nof the public wished to speak or \" close the public comment portion of the meeting and instead\nwent right to the next agenda item so quickly that no one in the audience, including myself a\ni6\n\nformer board member\n\nand\n\nsomeone\n\nvery\n\nwell\n\nversed\n\nin the process,\n\nknew what was\n\nhappening.\n\nThe Board has expressly denied that it prohibited\nfrom speaking\nbecause he did not sign the sign- up sheet that it uses to facilitate public comment. Although the\nBoard president referred to\nnot signing the sign- up sheet when he denied his request\nto speak after the Board moved on to the next agenda item, there is insufficient evidence for this\n\noffice to conclude the prohibition was based on the sign- up sheet rather than its rule that limits\npublic comment to the designated public comment portion of the meeting. Such a rule is content\nneutral and promotes efficiency and decorum by preventing interruptions. See I11. Att' y Gen.\n\nReq. Rev. Ltr. 42969, issued May 25, 2017 (a public body that provides an opportunity for the\npublic to speak at the time provided for in its established and recorded rules is not required to\n\nprovide additional opportunities for public comment during other parts of a meeting).\n\nAccordingly, this office concludes that the Board's rule is permissible section 2. 06(g) of OMA.\nIf the Board had ended the public comment portion of the meeting and\n\ntransitioned to the next agenda item so abruptly that members of the public did not have a\nmeaningful opportunity to invoke their right to speak, the Board could have violated section\n\n2. 06(g) of OMA. In light of the parties' conflicting accounts, however, this office is unable to\ndetermine that the Board did so. It is unclear precisely when\ndetermined that he\nwished to speak and whether he had an adequate opportunity to express that intent before the\nBoard moved on to the next agenda item. Accordingly, this office is unable to conclude that the\nBoard violated OMA by prohibiting\nfrom addressing the Board after the public\ncomment portion of the meeting ended. Nevertheless, because it appears that there may have\nbeen confusion concerning the timing of the public comment portion of the meeting, this office\n\nThe Public Access Counselor had determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756 or ssilverman@atg. state. il.us. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n53883 206g pub\n\ncomment\n\nproper\n\nsd"}
{"id":1267,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-04-23","case_number":null,"request_numbers":["53888"],"title":"Blue Island City Council violated OMA by failing to adopt written public comment rules","filename":"53888, issued April 23, 2020.pdf","rel_path":null,"word_count":1653,"summary":"A requester alleged the City of Blue Island violated OMA by restricting public comment during a June 19, 2018, meeting; the PAC found the City violated OMA by failing to have established public comment rules but did not violate OMA in its handling of the specific meeting.","plain_summary":"A citizen complained that the Blue Island City Council unfairly limited public comment during a meeting about a business license revocation. The Attorney General's office found that while the City did not break the law by ending the comment period to maintain order, it did violate the Open Meetings Act because it lacked the required written rules governing how public comment should be conducted. The case is now closed.","holding":"The City Council violated OMA by failing to have established and recorded rules for public comment, but it did not improperly restrict public comment during the meeting in question.","legal_question":"Did the City Council violate the Open Meetings Act by failing to adopt written public comment rules and by limiting public comment during a specific meeting?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Blue Island City Council","requesting_party":"Requester (name redacted in source document)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The City Council's failure to adopt written rules for public comment and the limitation of public comment during a hearing on a liquor license revocation.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/53888, issued April 23, 2020.pdf","sha256":"eedc3f05132dd807912d0e02c98e28584b9f3251e7e3d6033132add5a1b3e95a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","Open Meetings Act","meeting rules","city council"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 23, 2020\n\nVia electronic\n\nmail\n\nVia electronic\n\nmail\n\nThe Honorable Domingo Vargas\nMayor\n\nCity of Blue Island\n13501\n\nGreenwood\n\nAvenue\n\n[street address redacted for site publication -- see original PDF]\ndvargas@cityofblueisla4org\nRE:\n\nDear\n\nOMA (Request\n\nfor Review — 2018 PAC 53888\n\nand Mr: Vargas:\n\nThis letter is issued pursuant to section 3. 5( e) of the Open Meetings Act ( OMA)\n5 ILCS\n\n120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council of the City of Blue Island ( City Council) violated the\nrequirements of OMA because it did not have established and recorded rules governing public\n\ncomment at the time of its June 19, 2018, meeting, but the City Council did not improperly\nrestrict public comment during that meeting.\nsubmitted a Request for Review to the Public\nJuly 5, 2018,\nAccess Bureau alleging that the City Council violated OMA during its June 19, 2018, meeting\nOn\n\nwhen it did not allow all interested members of the public to address the City Council during\npublic comment. He stated, that the meeting involved a hearing concerning the revocation of a\nbar' s business and liquor licenses.\n\nspecifically alleged\n\nthat \"[\n\ne] ven though\n\nseveral\n\nmembers of the public that did get a chance to address the City Council about the [ bar], there\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago,\n\nIllinois 60601 • (\n\n312)\n\n601 South University\n\nAve.,\n\n814- 3000 •\n\nTTY: ( 800) 964- 3013 •\n\nFax: ( 312)\n\n814- 3806\n\nCarbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable\n\nDomingo\n\nVargas\n\nApril 23, 2020\nPage 2\n\nwere many others waiting to speak on this issue. One of those waiting to speak was a legal\nrepresentative of the owner.\"'\n\nOn June 20, 2018, this office forwarded a copy of the Request for Review to the\nCity Council and requested a written response to\nallegation. On August 8, 2018,\nthis office received the City Council' s response. On August 14, 2018, this office forwarded a\ncopy of the City Council' s response to\nOn August 23, 2018, this office received\nreply.\nDETERMINATION\n\n1\nSection\n\n2. 06( g) of OMA ( 5 ILCS 120/ 2. 06 ( West 2018)) provides\n\nthat \"[\n\na] ny\n\nperson shall be permitted an opportunity to address public officials under the rules established\nby the public body.\" This provision \" requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\nmeetings.\"\nI11. Att' y Genl. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 5. Under the\nplain language of section' 2. 06( g), a public body must establish and record rules governing public\ncomment, and may restrict publiccomment only pursuant to those rules. See Ill. Att'y Gen. Pub.\nand\n\nrecorded\n\nAcc. Op. No. 14- 009, issued September 2, 2014, at 7.\nIn its response to this office, the City Council stated that it had an ordinance\nregarding the opportunity to be heard in a business license revocation appeal, but acknowledged\nthat it did not have established and recorded rules governing public comment as required under\n\nsection 2. 06( g) of OMA. 1 Thus, if it has not already done so, the City Council should establish\nand record such rules, which must tend to accommodate the right to address public officials. I11.\n\nAtt' y Gen. Pub. Acc. Op. No. 14- 012, at 6.\nWith respect to whether the City Council imposed an impermissible restriction on\npublic\n\ncomment\n\nat\n\nthe\n\nJune 19, 2018, special meeting, 2 the City Council explained what\n\ntranspired as follows:\ni\n\nThe City Council meeting was highly charged with persons\nopposed to' the revocation Licensee calling those in favor of the\n\nLetter from '\nGeneral ( July 5, 2018).\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\n2This office notes that although the City Council' s response to this office discusses procedural\nissues related to business and liquor license revocations, this office' s review is limited to the City Council' s\ncompliance\n\nwith\n\nthe\n\nrequirements\n\nof OMA.\n\nSee 15 ILCS 205/ 7( c)( 3) (\n\nWest 2018) ( limiting the Public Access\n\nCounselor' s authority to resolve disputes to alleged violations of OMA and the Freedom of Information Act ( 5 ILCS\n140/ 1\n\net\n\nseq. ( West 2018))).\n\n\fThe Honorable Domingo Vargas\nApril 23, 2020\nPage 3\n\nrevocation racist. After an hour of public comments and after a\n\ncitizen Was removed due to disruptive behavior as well as the\ndisruptive behavior of the audience as a whole, a break was taken\n\nbecause the meeting had become disruptive to the agenda at hand.\nUpon return from the break, a member of the public asked we done\n\ntalking- Mayor? The Mayor responded yes. Only one person asked\nthe Licensee'\n\nto speak\n\ns\n\nHe asked to speak on\n\nattorney * * *\n\nbehalf of the Licensee. The Mayor responded no. 01\nThe City Council contended that the mayor was justified in ending public comment for the\nevening because \" given the contentious atmosphere of the meeting where the removal of a\ncitizen occurred as well as the accusations being made at the public hearing and the reactions of\nthe public, to allow further comment would have created a further breach of the peace or\ni'\n\nworse.\n\nThe City Council further noted that \" the plain language of the Open Meetings Act does\n\nnot\n\nevery person\n\nstate\n\nasked\nwere\n\nto speak\nthree\n\nwho\n\ndesires to speak must be allowed to do so. i5\n\nIn his reply,\nbefore the City Council\n\nother\n\ncitizens\n\nstanding\n\nand\n\ndisputed the assertion that only the licensee' s attorney\nstopped\n\nwaiting\n\ntaking public comment,\nto speak\n\nwhen\n\npublic\n\nclaiming\n\ncomment\n\nthat \"[ t] here\n\nwas\n\nended.\"\n\n6 He\n\nalleged that the decision to deny public comment was arbitrary and based on the content of the\nspeech rather than any; disruption.\nThis office has reviewed a video of the City Council' s June 1. 9, 2018, meeting.?\n\nTensions rose during public comment. At the 59: 20 mark, a member of the; public loudly\ninterrupts the person addressing the City Council and is guided out of the room by a uniformed\nofficer. Intense shouting erupts across the room among multiple parties; the mayor keeps\n\nbanging the gavel, to, no avail. The back of the room is not visible, but the audio and reactions\nfrom the people who, are visible in the meeting room indicatesignificantly disruptive\n\nLetter from Leslie Quade Kennedy, Attorney on behaif of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau ( August 8, 2018).\n\n4Letter from Leslie Quade Kennedy, Attorney on behalf of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau ( August 8, 2018).\n\nSLetter from Leslie Quade Kennedy, Attorney on behalf of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau ( August 8, 2018).\n6E -mail from\n\nto AAG Mukherjee ( August 23, 2018).\n\nBlue Island Television, CITY COUNCIL: June 19th, 2018 ( Special Meeting), YouTube ( June 22,\n2018),\n\nhttps://\n\nwww. youtube.\n\ncom/ watch? v= 8SL_ Gt_ YjzA ( last\n\nvisited\n\nApril 21, 2020).\n\n\fThe Honorable Domingo Vargas\nApril 23, 2020\n\nPage 4\n\ncircumstances. The mayor says that the City Council is going to take a five- minute break as\n\nshouting by various members of the public continues. A second uniformed officer walks into the\nmiddle of the room and addresses the mayor, saying tensions are running high and he' d like to\nstop the meeting. There is a break in the video reflecting a recess of the meeting. After the\nmeeting reconvenes, the mayor announces the City Council is moving on from public comment\n\nand seeks a vote to go into closed session. A member of the public calls out \" are we done talking\nmayor?\"\n\nto which\n\nhe responds \"\n\nyes.\"\n\nAn individual identified by\n\nas the licensee' s\n\nattorney can be heard asking the mayor if he may speak on his client's behalf, to which the\nMayor\n\nresponds \"\n\nno.\"\n\nThe City Council then votes to enter closed session.\n\nThe video demonstrates that the public comment period durir.g the City Council' s\nJune 18, 2019, meeting grew so disruptive that it threatened the City Council' s ability to conduct\npublic business and potentially the safety and security of attendees at the meeting. Even without\npublic comment rules, the head of a public body has the authority and responsibility to run a civil\n\nand businesslike meeting, including the inherent authority to put a stop to ccnduct that interferes\nwith the orderly conduct of a meeting. It is undisputed that the City Council heard\napproximately an hour of public comment before adjourning to closed session. Under these\n\ncircumstances, the City Council did not violate OMA by ending the public comment period to\npreserve safety and order in the meeting room.\nThe Public Access Counselor has determined that resolution of this matter does\nthe\n\nissuance of a binding opinion.\n\nIf you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at ( 312) 814- 4461, or\nby e- mail at jsternecky@atg. state. il. us. This letter serves to close this file.\nnot require\n\nVery truly yours,\n\nJANE STERNECKY\n\nAssistant Attorney General\nPublic Access\n\n53888 o 206g pub comment proper improper mun\ncc:\n\nVia electronic mail\n\nMs. Leslie Quade Kennedy\nOdelson & Sterk, Ltd.\n3318 West 95th Street\nEvergreen Park, Illinois 60805\nIkennedy@odelsonsterk.\n\ncom\n\nBureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's failure to adopt public comment rules","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53888/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 23, 2020\n\nVia electronic\n\nmail\n\nVia electronic\n\nmail\n\nThe Honorable Domingo Vargas\nMayor\n\nCity of Blue Island\n13501\n\nGreenwood\n\nAvenue\n\n[street address redacted for site publication -- see original PDF]\ndvargas@cityofblueisla4org\nRE:\n\nDear\n\nOMA (Request\n\nfor Review — 2018 PAC 53888\n\nand Mr: Vargas:\n\nThis letter is issued pursuant to section 3. 5(e) of the Open Meetings Act (OMA)\n5 ILCS\n\n120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council of the City of Blue Island (City Council) violated the\nrequirements of OMA because it did not have established and recorded rules governing public\n\ncomment at the time of its June 19, 2018, meeting, but the City Council did not improperly\nrestrict public comment during that meeting.\nsubmitted a Request for Review to the Public\nJuly 5, 2018,\nAccess Bureau alleging that the City Council violated OMA during its June 19, 2018, meeting\nOn\n\nwhen it did not allow all interested members of the public to address the City Council during\npublic comment. He stated, that the meeting involved a hearing concerning the revocation of a\nbar's business and liquor licenses.\n\nspecifically alleged\n\nthat \"[\n\ne] ven though\n\nseveral\n\nmembers of the public that did get a chance to address the City Council about the [ bar], there\n\nwere many others waiting to speak on this issue. One of those waiting to speak was a legal\nrepresentative of the owner.\"'\n\nOn June 20, 2018, this office forwarded a copy of the Request for Review to the\nCity Council and requested a written response to\nallegation. On August 8, 2018,\nthis office received the City Council's response. On August 14, 2018, this office forwarded a\ncopy of the City Council's response to\nOn August 23, 2018, this office received\nreply.\nDETERMINATION\n\n1\nSection\n\n2. 06(g) of OMA (5 ILCS 120/ 2. 06 (West 2018)) provides\n\nthat \"[\n\na] ny\n\nperson shall be permitted an opportunity to address public officials under the rules established\nby the public body.\" This provision \" requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\nmeetings.\"\nI11. Att' y Genl. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 5. Under the\nplain language of section' 2. 06(g), a public body must establish and record rules governing public\ncomment, and may restrict publiccomment only pursuant to those rules. See Ill. Att'y Gen. Pub.\nand\n\nrecorded\n\nAcc. Op. No. 14- 009, issued September 2, 2014, at 7.\nIn its response to this office, the City Council stated that it had an ordinance\nregarding the opportunity to be heard in a business license revocation appeal, but acknowledged\nthat it did not have established and recorded rules governing public comment as required under\n\nsection 2. 06(g) of OMA. 1 Thus, if it has not already done so, the City Council should establish\nand record such rules, which must tend to accommodate the right to address public officials. I11.\n\nAtt' y Gen. Pub. Acc. Op. No. 14- 012, at 6.\nWith respect to whether the City Council imposed an impermissible restriction on\npublic\n\ncomment\n\nat\n\nthe\n\nJune 19, 2018, special meeting, 2 the City Council explained what\n\ntranspired as follows:\ni\n\nThe City Council meeting was highly charged with persons\nopposed to' the revocation Licensee calling those in favor of the\n\nLetter from '\nGeneral (July 5, 2018).\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\n2 This office notes that although the City Council's response to this office discusses procedural\nissues related to business and liquor license revocations, this office's review is limited to the City Council's\ncompliance\n\nwith\n\nthe\n\nrequirements\n\nof OMA.\n\nSee 15 ILCS 205/ 7(c)(3) (West 2018) (limiting the Public Access\n\nCounselor's authority to resolve disputes to alleged violations of OMA and the Freedom of Information Act (5 ILCS\n\nrevocation racist. After an hour of public comments and after a\n\ncitizen Was removed due to disruptive behavior as well as the\ndisruptive behavior of the audience as a whole, a break was taken\n\nbecause the meeting had become disruptive to the agenda at hand.\nUpon return from the break, a member of the public asked we done\n\ntalking- Mayor? The Mayor responded yes. Only one person asked\nthe Licensee'\n\nto speak\n\ns\n\nHe asked to speak on\n\nattorney * * *\n\nbehalf of the Licensee. The Mayor responded no. 01\nThe City Council contended that the mayor was justified in ending public comment for the\nevening because \" given the contentious atmosphere of the meeting where the removal of a\ncitizen occurred as well as the accusations being made at the public hearing and the reactions of\nthe public, to allow further comment would have created a further breach of the peace or\ni'\n\nworse.\n\nThe City Council further noted that \" the plain language of the Open Meetings Act does\n\nnot\n\nevery person\n\nstate\n\nasked\nwere\n\nto speak\nthree\n\nwho\n\ndesires to speak must be allowed to do so. i5\n\nIn his reply,\nbefore the City Council\n\nother\n\ncitizens\n\nstanding\n\nand\n\ndisputed the assertion that only the licensee's attorney\nstopped\n\nwaiting\n\ntaking public comment,\nto speak\n\nwhen\n\npublic\n\nclaiming\n\ncomment\n\nthat \"[ t] here\n\nwas\n\nended.\"\n\n6 He\n\nalleged that the decision to deny public comment was arbitrary and based on the content of the\nspeech rather than any; disruption.\nThis office has reviewed a video of the City Council's June 1. 9, 2018, meeting.?\n\nTensions rose during public comment. At the 59: 20 mark, a member of the; public loudly\ninterrupts the person addressing the City Council and is guided out of the room by a uniformed\nofficer. Intense shouting erupts across the room among multiple parties; the mayor keeps\n\nbanging the gavel, to, no avail. The back of the room is not visible, but the audio and reactions\nfrom the people who, are visible in the meeting room indicatesignificantly disruptive\n\nLetter from Leslie Quade Kennedy, Attorney on behaif of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau (August 8, 2018).\n\n4 Letter from Leslie Quade Kennedy, Attorney on behalf of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau (August 8, 2018).\n\nSLetter from Leslie Quade Kennedy, Attorney on behalf of the City of Blue Island, Odelson &\nSterk, Ltd., to S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau (August 8, 2018).\n6E -mail from\n\nto AAG Mukherjee (August 23, 2018).\n\nBlue Island Television, CITY COUNCIL: June 19th, 2018 (Special Meeting), YouTube (June 22,\n2018),\n\ncircumstances. The mayor says that the City Council is going to take a five- minute break as\n\nshouting by various members of the public continues. A second uniformed officer walks into the\nmiddle of the room and addresses the mayor, saying tensions are running high and he' d like to\nstop the meeting. There is a break in the video reflecting a recess of the meeting. After the\nmeeting reconvenes, the mayor announces the City Council is moving on from public comment\n\nand seeks a vote to go into closed session. A member of the public calls out \" are we done talking\nmayor?\"\n\nto which\n\nhe responds \"\n\nyes.\"\n\nAn individual identified by\n\nas the licensee's\n\nattorney can be heard asking the mayor if he may speak on his client's behalf, to which the\nMayor\n\nresponds \"\n\nno.\"\n\nThe City Council then votes to enter closed session.\n\nThe video demonstrates that the public comment period durir.g the City Council's\nJune 18, 2019, meeting grew so disruptive that it threatened the City Council's ability to conduct\npublic business and potentially the safety and security of attendees at the meeting. Even without\npublic comment rules, the head of a public body has the authority and responsibility to run a civil\n\nand businesslike meeting, including the inherent authority to put a stop to ccnduct that interferes\nwith the orderly conduct of a meeting. It is undisputed that the City Council heard\napproximately an hour of public comment before adjourning to closed session. Under these\n\ncircumstances, the City Council did not violate OMA by ending the public comment period to\npreserve safety and order in the meeting room.\nThe Public Access Counselor has determined that resolution of this matter does\nthe\n\nissuance of a binding opinion.\n\nIf you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at (312) 814- 4461, or\nby e- mail at jsternecky@atg. state. il. us. This letter serves to close this file.\nnot require\n\nVery truly yours,\n\nJANE STERNECKY\n\nAssistant Attorney General\nPublic Access\n\n53888 o 206g pub comment proper improper mun\ncc:\n\nVia electronic mail\n\nMs. Leslie Quade Kennedy\nOdelson & Sterk, Ltd.\n3318 West 95th Street\nEvergreen Park, Illinois 60805\nIkennedy@odelsonsterk.\n\ncom\n\nBureau"}
{"id":1268,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-10-22","case_number":null,"request_numbers":["54002"],"title":"NIU Board of Trustees did not violate Open Meetings Act in presidential candidate discussions","filename":"54002, issued October 22, 2018.pdf","rel_path":null,"word_count":3067,"summary":"The PAC investigated whether the Northern Illinois University Board of Trustees violated the Open Meetings Act by allegedly holding an improper meeting or taking final action outside of an open meeting regarding the selection of a university president. The PAC determined that the Board's communications did not constitute a meeting under OMA and that no final action was taken in violation of the Act.","plain_summary":"A citizen complained that the Northern Illinois University Board of Trustees held secret meetings to select a new university president. The Attorney General's office reviewed the case and found that the Board's discussions did not qualify as a 'meeting' under the law and that they had not taken any final, official action in private. The matter is now closed with no violations found.","holding":"The Northern Illinois University Board of Trustees did not violate the Open Meetings Act regarding its communications with a presidential candidate or the timing of its decision-making process.","legal_question":"Whether the Board of Trustees' communications with a presidential candidate constituted a 'meeting' under the Open Meetings Act or if the Board took 'final action' in violation of the Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2","5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Northern Illinois University Board of Trustees","requesting_party":"Gregory and Marie Hollister","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The investigation concerned whether the Board of Trustees held an improper meeting or took final action in private regarding the selection of a university president.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/meetings-via-electronic-means/54002, issued October 22, 2018.pdf","sha256":"1202f6defb99c7dd32c81aec8656b5c7113b05c12fd4eaec5543e5866c951fda","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","university board","final action","public meeting"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nST ATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 22, 2018\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Wheeler G. Coleman\nChair, Board of Trustees\nNorthern Illinois University\nEC-United\n[street address redacted for site publication -- see original PDF]\nwcoleman@niu.edu\nRE: OMA Request for Review - 2018 PAC 54002\nDear\n\nand Mr. Coleman:\n\nThis determination letter is issued pursuant to section 3 .5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons that follow, the Public Access\nBureau concludes that the Northern Illinois University (University) Board of Trustees (Board)\ndid not engage in improper communications with a potential candidate for president that\nconstituted a meeting subject to the requirements of OMA, or improperly take final action\noutside of an open meeting.\nOn July 12, 2018, �ubmitted a Request for Review to the\nPublic Access Bureau alleging th� violated OMA by approaching Dr. Lisa\nFreeman, Acting President of the U� support and asking her to reconsider her\ncandidacy for University president. ---- questioned whether the Board held a\nmeeting with Ms. Freeman without adhering to the requirements of OMA and/or took action in\nconnection with its support for her candidacy outside of a properly-noticed open meeting. She\n\n\fThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage 2\n\nprovided a copy ofan \"NIU Official Announcement\" which stated that \"[a]s a board, we\napproached [Dr. Freeman] with our support and asked her to consider a candidacy.\" 1\nRequest for\nOn July 20, 2018, this office forwarded a copy of\nReview to the Board and asked it to respond to her allegations. On August 8, 2018, counsel for\nthe Board provided a written response asserting that the Board \"did not hold a meeting with Dr.\nLisa Freeman that required adherence with the Illinois Open Meetings Act and it has not taken\nany final action outside ofa properly-noticed open meeting with regards o her candidac .\" 2 On\nAugust 10, 2018, this office forwarded a copy ofthe Board's response to.. On\nAugust 16, 2018, she submitted a reply which argued that the Board's response was mis eading,\nand that the University's \"Official Announcement\" demonstrated that there was a decision made\nthat did not comply with the requirements ofOMA. On August 20, 2018, the Board provided\nthis office a copy ofverbatim recording ofthe closed session portion ofits June 14, 2018,\nmeeting in which it discussed Dr. Freeman's potential appointment.\nDETERMINATION\nAlleged Violation of Meeting Requirements\n\nThis office construes\nRequest for Review as alleging, in part, a\nviolation ofsection 2 ofOMA (5 ILCS 120/2 (West 2016)), which provides that \"all meetings of\npublic bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" She attached to her Request for Review a copy ofan NIU Official\nAnnouncement which explained: (I) the Board created a Presidential Search Planning\nCommittee (Planning Committee) which issued findings and recommendations, including a\nprofile ofdesirable qualifications for NIU's next president; (2) the Board was in the process of\nconducting Dr. Freeman's annual performance review while it reviewed the profile developed by\nthe Planning Committee; (3) based on her qualifications, the Board approached Dr. Freeman and\nasked her to reconsider her previous position to not be a candidate for president; (4) at its July\n16, 2018, meeting, the Board intended to propose an \"adjusted process\" in which Dr. Freeman\nwould be put forth as the candidate for president and information gathering sessions would be\nheld with various constituency groups to provide the Board with feedback; and (5) \"[d]iscussion\namong trustees regarding the hiring ofthe new President will take place at a pre-scheduled\n1\n\n\"NIU Official Announcement\" by Wheeler Coleman, Chair, Board of Trustees, and Dennis\nBarsema, Vice Chair, Board of Trustees (July 11, 2018), at 3.\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 20 I 8), at I.\n\n\fThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage 3\n\ntrustees meeting and after the completion of the information gathering sessions. We will also\nmake plans for a university wide-forum where Dr. Freeman will outline her vision for the\nRequest for Review asserts that thus announcement demonstrates·\nfuture.',3\nthat the Board violated OMA by improperly meeting with Dr. Freeman and selecting her as the\ncandidate for president.\nIn its response to this office, the Board stated that (1) the Chair of the Board asked\nDr. Freeman during a June 8, 2018, telephone call to reconsider her position that she would not\nseek the permanent presidential position; (2) \"[t]hrough individual, one-on-one communications\nwith each of the other trustees, Chair Coleman had previously received high praise for Dr.\nFreeman's performance and support for considering her as the permanent president[;]\" (3) on\nJune 14, 2018, Board members confirmed their support for Dr. Freeman in a closed session\ndiscussion held pursuant to the section 2(c)(l) exception (5 ILCS 120/2(c)(l) (West 2016))4 to\nthe general requirement that public bodies conduct public business openly; ( 4) the Chair and\nVice Chair conveyed the Board's support to Dr. Freeman after the closed session and she agreed\nto be considered as a candidate; (5) on July 16, 2018, the Board held a special meeting at which\nit approved the \"Adjusted Presidential Search Process\" to consider Dr. Freeman's candidacy,\nwhich was outlined in the NIU Official Announcement document attached to the Request for\nReview.'' 5\nIn her reply, the requester argues that:\n\n\"NIU Official Announcement\" by Wheeler Coleman, Chair, Board of Trustees, and Dennis\nBarsema, Vice Chair, Board of Trustees (July I I, 2018), at 4.\n3\n\n'Section 2(c)(I) of OMA permits a public body to enter closed session to\n\ndiscuss:\n\nThe appointment, employment, compensation, discipline, performance,\nor dismissal of specific employees of the public body or legal counsel for the\npublic body, including hearing testimony on a complaint lodged against an\nemployee of the public body or against legal counsel for the public body to\ndetermine its validity. However, a meeting to consider an increase in\n\ncompensation to a specific employee of a public body that is subject to the Local\nGovernment Wage Increase Transparency Act may not be closed and shall be\nopen to the public and posted and held in accordance with this Act.\n'Letter fi-om Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8,2018), at 2-3.\n\n\fThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage4\n\nTalking to each individual member of the Board about board\nbusiness to arrive at an action and or a board decision is also a\nviolation of OMA. This one on one method, whether it is by\nphone, email or other means, is used to get around the rules stated\nin the Open Meetings Act. * * * In effect, NIU is using this\nmethod of one at a time decision making to avoid the OMA and\nproduce a board action. NIU admits that the Chairman used these\none on one conversations as a basis for his action.161\nOur determination in this matter hinges on whether the private communications\nbetween Board members preceding the announcement of Dr. Freeman's selection as the\ncandidate for the permanent presidential position constituted a \"meeting\" subject to the\nrequirements of OMA. Section 1.02 (5 ILCS 120/1.02 (West 2016)) defines a public meeting as:\n[ A]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. (Emphasis added.)\nWe note that \"contemporaneous interactive communication\" under section 1.02 does not require\nthe continuous and uninterrupted presence of a majority of a quorum. Contemporaneous is\ndefined as \"existing, occurring, or originating during the same time,\" as in \"the contemporaneous\npublication of two articles\" or \"contemporaneous accounts of the battle from officers on both\nsides[.]\" 7 \"Interactive\" is defined as \"mutually or reciprocally active\" or \"involving the actions\nor input of a user; especially : of, relating to, or being a two-way electronic communication\nsystem (as a telephone, cable television, or a computer) that involves a user's orders (as for\ninformation or merchandise) or responses (as to a poll)[.]\" (Emphasis in original.) 8 Thus, a\n\"contemporaneous interactive communication\" occurs in the same general time frame, but is not\n6\n\nE-mail from\n\nto Brady Gregory and Marie Hollister (August 15, 2018).\n\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n\n\fOctober 22, 20 I 8\nPage 5\n\nnecessarily simultaneous. See John H. Brechin, E-Mail and the Open Meetings Act, Illinois Bar\nJournal, 94 !LBJ 666, 667 (2006).\nIn this instance, it is undisputed that each member of the Board individually\ndiscussed the potential candidacy of Dr. Freeman with the Board Chair on at least one occasion.\nHowever, there is no indication that any of these communications involved a majority of a\nquorum of the Board, or were contemporaneous with a majority of a quorum such as through a\nchain of Board members discussing this topic with one another systematically. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 50318, issued January 30, 2018, at 3-4 (Board did not engage in\ncontemporaneous, interactive, deliberative discussion concerning a letter written to local media\nwhich was drafted by one trustee and then edited by other trustees at later, separate times).\nMoreover, the Board's response that the Chair had received high praise for Dr. Freeman's\nperformance and support for considering her as the permanent president and that he shared these\n\"collective observations\" 9 indicates that these conversations occurred over the course of time and\nwere not undertaken as an individual poll of trustees or as an attempt to circumvent the\nrequirements of OMA. Accordingly, this office is unable to conclude from the available\ninformation that any of the Board members' communications concerning Dr. Freeman\nconstituted improper meetings subject to the requirements of OMA.\nFinal Action\n\n�equest for Review also alleged that the Board must have\ntaken an improper final action because she could not locate the Board's vote to support Dr.\nFreeman as a candidate listed in any of several meeting agendas that she checked. Section 2(e)\nof OMA (5 ILCS 120/2(e) (West 2016)) provides that \"[n]o final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\"\nIn its response to this office, the Board stated that:\nChair Coleman set the potential appointment/employment\nof Dr. Freeman as permanent president as a topic of\nconversation by the full Board during closed session at the\nnext meeting of the Board of Trustees. On June 14, 2018,\nat its meeting, the Board of Trustees went into closed\nsession to discuss items under Section 2(c)(I) of the Illinois\nOpen Meetings Act, which covers 'The appointment,\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 20 I 8), at 2.\n\n\fOctober 22, 2018\nPage 6\n\n. Coleman\n\nemployment, compensation, discipline, performance, or\ndismissal ofspecific employees of the public body ... ' Dr.\nFreeman was not present for this discussion a[s] this closed\nsession_[IOJ (Emphasis in original.)\nThe Board also explained that its July 11, 2018, announcement \"announced a plan to propose to\nthe full Board of Trustees an adjusted presidential search process with Dr. Freeman as the\ncandidate for consideration by the Board and the University.\" 11 The Board also explained that\nthe Board properly approved the Adjusted Presidential Search Process with Dr. Freeman as the\ncandidate for consideration at its July 16, 2018, special meeting. The Adjusted Presidential\nSearch Process includes opportunities for University constituencies to provide their feedback \"on\nDr. Freeman's candidacy for review and consideration by the full Board at one of its future\nmeetings.\" 12 Lastly, the Board explained that it \"has taken no final action to appoint/employ a\npermanent president and is in the midst of the Adjusted Presidential Search Process with the rest\nof the Universi7[,J\" 13 and that \"[a]ny final action on the presidency will, of course, be done in\nopen session.\" 1\nIn her reply, the requester clarified that she is only contesting the Board's actions\non July 11, 2018, and prior, in regard to the official announcement. She argued that, through that\nannouncement, the University \"made a deliberate decision to tell the public that the board\napproached [Dr. Freeman] with our support[]\" 15 and that \"[t]he words 'As a Board we ...' have\n10 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n\n\"Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 3.\n12 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 3.\n13 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the lllinois Attorney\nGeneral (August 8, 2018), at 4.\n14\n\nLetter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 4.\n15\n\nE-mail rrom\n\no Brady Gregory and Marie Hollister (August 15, 2018).\n\n\fThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage 7\n\nspecial meaning-the board [met] in quorum and took action. The chair of a board or individual\nmembers of a board do not have the authority to �eak for the board on any issue that the board\nhas not met upon and taken action on the issue.\" 1\nIn Gosnell v. Hogan, 179 Ill. App. 3d 161 (5th Dist. 1989), the plaintiff alleged\nthat a school board impermissibly took final action in closed session by deciding to make a\nrequest for mediation as an alternative to the unsuccessful negotiations it had been conducting\nwith its secretaries' union. Gosnell, 179 Ill. App. 3d at 169. The court rejected that allegation,\nholding that the school board only took an intermediate step toward resolving the dispute:\n[T]he request for mediation was part of the process of reaching a\nfinal action with the secretaries union. Mediation, similar to\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \"unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\n\nSee also Ill. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued July 14, 2015, at 3 (\"A component ofa\npublic body's process of reaching final action generally does not, itself, constitute final action.\"),\nand Ill. Att'y Gen. PAC Req. Rev. Ltr. 38155, issued July 20, 2016, at 3 (\"A school district's\ndiscussion during closed session to decline a proposed resolution from the Department of\nEducation's Office of Civil Rights (OCR) was part of a process of reaching final action, rather\nthan final action itself, including because the OCR's complaint processing procedures expressly\nprovided for continued negotiation after a public body rejects a voluntary resolution.\")\nThis office has reviewed the verbatim recording from the Board's June 14, 2018,\nclosed session in which the potential appointment of Dr. Freeman as permanent president was\ndiscussed. Based on that review, this office has determined that the Board's consensus on\npublically voicing its support of her candidacy in the Adjusted Presidential Search Process was\npart of a process of reaching final action, rather than final action itself. It is clear from the\nrecording that the Board was aware that its position on supporting Dr. Freeman for president was\nsubject to change, rather than irreversible. Likewise, the consensus of the Board expressed in the\nNIU Official Announcement that\nattached to her Request for Review reflects\nonly the intermediate step of tentatively supporting Dr. Freeman's candidacy and seeking\nadditional feedback. Indeed, the Adjusted Presidential Search Process expressly provided for the\n16\n\nE-mail from\n\nto Brady Gregory and Marie Hollister (August 15, 2018).\n\n\fThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage 8\n\nBoard to receive continued input and other information from various stakeholders after the Board\nrecommended a candidate, followed by final action at an open meeting. Because the District's\ndecision to publically v�r Dr. Freeman as permanent president was an interim\ndecision at the time of----Request for Review, rather than \"final action\" (such as\nappointing Dr. Freeman to the position) the Board did not violate section 2(e) of OMA by\nreaching a consensus on that position.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n(312) 793-0865 or the Chicago address on the bottom of the first page of this letter. This letter\nshall serve to close this matter.\nVery truly yours,\n\nMARIE HOLLISTER\nAssistant Attorney General\nPublic Access Bureau\n54002 o 201 proper 2e final action proper univ\ncc:\n\nVia electronic mail\nMr. Gregory A. Brady\nActing Vice President and General Counsel\nNorthern Illinois University\nAltgeld Hall 330\nDeKalb, Illinois 60115-2828\ngbrady@niu.edu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A university board's selection of a president","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-54002/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nST ATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 22, 2018\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Wheeler G. Coleman\nChair, Board of Trustees\nNorthern Illinois University\nEC-United\n[street address redacted for site publication -- see original PDF]\nwcoleman@niu.edu\nRE: OMA Request for Review - 2018 PAC 54002\nDear\n\nand Mr. Coleman:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons that follow, the Public Access\nBureau concludes that the Northern Illinois University (University) Board of Trustees (Board)\ndid not engage in improper communications with a potential candidate for president that\nconstituted a meeting subject to the requirements of OMA, or improperly take final action\noutside of an open meeting.\nOn July 12, 2018, �ubmitted a Request for Review to the\nPublic Access Bureau alleging th� violated OMA by approaching Dr. Lisa\nFreeman, Acting President of the U� support and asking her to reconsider her\ncandidacy for University president. ---- questioned whether the Board held a\nmeeting with Ms. Freeman without adhering to the requirements of OMA and/or took action in\nconnection with its support for her candidacy outside of a properly-noticed open meeting. She\n\nprovided a copy ofan \"NIU Official Announcement\" which stated that \"[a]s a board, we\napproached [Dr. Freeman] with our support and asked her to consider a candidacy.\" 1\nRequest for\nOn July 20, 2018, this office forwarded a copy of\nReview to the Board and asked it to respond to her allegations. On August 8, 2018, counsel for\nthe Board provided a written response asserting that the Board \"did not hold a meeting with Dr.\nLisa Freeman that required adherence with the Illinois Open Meetings Act and it has not taken\nany final action outside ofa properly-noticed open meeting with regards o her candidac.\" 2 On\nAugust 10, 2018, this office forwarded a copy ofthe Board's response to.. On\nAugust 16, 2018, she submitted a reply which argued that the Board's response was mis eading,\nand that the University's \"Official Announcement\" demonstrated that there was a decision made\nthat did not comply with the requirements ofOMA. On August 20, 2018, the Board provided\nthis office a copy ofverbatim recording ofthe closed session portion ofits June 14, 2018,\nmeeting in which it discussed Dr. Freeman's potential appointment.\nDETERMINATION\nAlleged Violation of Meeting Requirements\n\nThis office construes\nRequest for Review as alleging, in part, a\nviolation ofsection 2 ofOMA (5 ILCS 120/2 (West 2016)), which provides that \"all meetings of\npublic bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" She attached to her Request for Review a copy ofan NIU Official\nAnnouncement which explained: (I) the Board created a Presidential Search Planning\nCommittee (Planning Committee) which issued findings and recommendations, including a\nprofile ofdesirable qualifications for NIU's next president; (2) the Board was in the process of\nconducting Dr. Freeman's annual performance review while it reviewed the profile developed by\nthe Planning Committee; (3) based on her qualifications, the Board approached Dr. Freeman and\nasked her to reconsider her previous position to not be a candidate for president; (4) at its July\n16, 2018, meeting, the Board intended to propose an \"adjusted process\" in which Dr. Freeman\nwould be put forth as the candidate for president and information gathering sessions would be\nheld with various constituency groups to provide the Board with feedback; and (5) \"[d]iscussion\namong trustees regarding the hiring ofthe new President will take place at a pre-scheduled\n1\n\n\"NIU Official Announcement\" by Wheeler Coleman, Chair, Board of Trustees, and Dennis\nBarsema, Vice Chair, Board of Trustees (July 11, 2018), at 3.\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\ntrustees meeting and after the completion of the information gathering sessions. We will also\nmake plans for a university wide-forum where Dr. Freeman will outline her vision for the\nRequest for Review asserts that thus announcement demonstrates·\nfuture.',3\nthat the Board violated OMA by improperly meeting with Dr. Freeman and selecting her as the\ncandidate for president.\nIn its response to this office, the Board stated that (1) the Chair of the Board asked\nDr. Freeman during a June 8, 2018, telephone call to reconsider her position that she would not\nseek the permanent presidential position; (2) \"[t]hrough individual, one-on-one communications\nwith each of the other trustees, Chair Coleman had previously received high praise for Dr.\nFreeman's performance and support for considering her as the permanent president[;]\" (3) on\nJune 14, 2018, Board members confirmed their support for Dr. Freeman in a closed session\ndiscussion held pursuant to the section 2(c)(l) exception (5 ILCS 120/2(c)(l) (West 2016))4 to\nthe general requirement that public bodies conduct public business openly; (4) the Chair and\nVice Chair conveyed the Board's support to Dr. Freeman after the closed session and she agreed\nto be considered as a candidate; (5) on July 16, 2018, the Board held a special meeting at which\nit approved the \"Adjusted Presidential Search Process\" to consider Dr. Freeman's candidacy,\nwhich was outlined in the NIU Official Announcement document attached to the Request for\nReview.'' 5\nIn her reply, the requester argues that:\n\n\"NIU Official Announcement\" by Wheeler Coleman, Chair, Board of Trustees, and Dennis\nBarsema, Vice Chair, Board of Trustees (July I I, 2018), at 4.\n3\n\n'Section 2(c)(I) of OMA permits a public body to enter closed session to\n\ndiscuss:\n\nThe appointment, employment, compensation, discipline, performance,\nor dismissal of specific employees of the public body or legal counsel for the\npublic body, including hearing testimony on a complaint lodged against an\nemployee of the public body or against legal counsel for the public body to\ndetermine its validity. However, a meeting to consider an increase in\n\ncompensation to a specific employee of a public body that is subject to the Local\nGovernment Wage Increase Transparency Act may not be closed and shall be\nopen to the public and posted and held in accordance with this Act.\n'Letter fi-om Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8,2018), at 2-3.\n\nThe Honorable Wheeler G. Coleman\nOctober 22, 2018\nPage4\n\nTalking to each individual member of the Board about board\nbusiness to arrive at an action and or a board decision is also a\nviolation of OMA. This one on one method, whether it is by\nphone, email or other means, is used to get around the rules stated\nin the Open Meetings Act. * * * In effect, NIU is using this\nmethod of one at a time decision making to avoid the OMA and\nproduce a board action. NIU admits that the Chairman used these\none on one conversations as a basis for his action.161\nOur determination in this matter hinges on whether the private communications\nbetween Board members preceding the announcement of Dr. Freeman's selection as the\ncandidate for the permanent presidential position constituted a \"meeting\" subject to the\nrequirements of OMA. Section 1.02 (5 ILCS 120/1.02 (West 2016)) defines a public meeting as:\n[ A]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. (Emphasis added.)\nWe note that \"contemporaneous interactive communication\" under section 1.02 does not require\nthe continuous and uninterrupted presence of a majority of a quorum. Contemporaneous is\ndefined as \"existing, occurring, or originating during the same time,\" as in \"the contemporaneous\npublication of two articles\" or \"contemporaneous accounts of the battle from officers on both\nsides[.]\" 7 \"Interactive\" is defined as \"mutually or reciprocally active\" or \"involving the actions\nor input of a user; especially: of, relating to, or being a two-way electronic communication\nsystem (as a telephone, cable television, or a computer) that involves a user's orders (as for\ninformation or merchandise) or responses (as to a poll)[.]\" (Emphasis in original.) 8 Thus, a\n\"contemporaneous interactive communication\" occurs in the same general time frame, but is not\n6\n\nE-mail from\n\nto Brady Gregory and Marie Hollister (August 15, 2018).\n\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n\nOctober 22, 20 I 8\nPage 5\n\nnecessarily simultaneous. See John H. Brechin, E-Mail and the Open Meetings Act, Illinois Bar\nJournal, 94 !LBJ 666, 667 (2006).\nIn this instance, it is undisputed that each member of the Board individually\ndiscussed the potential candidacy of Dr. Freeman with the Board Chair on at least one occasion.\nHowever, there is no indication that any of these communications involved a majority of a\nquorum of the Board, or were contemporaneous with a majority of a quorum such as through a\nchain of Board members discussing this topic with one another systematically. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 50318, issued January 30, 2018, at 3-4 (Board did not engage in\ncontemporaneous, interactive, deliberative discussion concerning a letter written to local media\nwhich was drafted by one trustee and then edited by other trustees at later, separate times).\nMoreover, the Board's response that the Chair had received high praise for Dr. Freeman's\nperformance and support for considering her as the permanent president and that he shared these\n\"collective observations\" 9 indicates that these conversations occurred over the course of time and\nwere not undertaken as an individual poll of trustees or as an attempt to circumvent the\nrequirements of OMA. Accordingly, this office is unable to conclude from the available\ninformation that any of the Board members' communications concerning Dr. Freeman\nconstituted improper meetings subject to the requirements of OMA.\nFinal Action\n\n�equest for Review also alleged that the Board must have\ntaken an improper final action because she could not locate the Board's vote to support Dr.\nFreeman as a candidate listed in any of several meeting agendas that she checked. Section 2(e)\nof OMA (5 ILCS 120/2(e) (West 2016)) provides that \"[n]o final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\"\nIn its response to this office, the Board stated that:\nChair Coleman set the potential appointment/employment\nof Dr. Freeman as permanent president as a topic of\nconversation by the full Board during closed session at the\nnext meeting of the Board of Trustees. On June 14, 2018,\nat its meeting, the Board of Trustees went into closed\nsession to discuss items under Section 2(c)(I) of the Illinois\nOpen Meetings Act, which covers 'The appointment,\n'Letter from Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\n. Coleman\n\nemployment, compensation, discipline, performance, or\ndismissal ofspecific employees of the public body... ' Dr.\nFreeman was not present for this discussion a[s] this closed\nsession_[IOJ (Emphasis in original.)\nThe Board also explained that its July 11, 2018, announcement \"announced a plan to propose to\nthe full Board of Trustees an adjusted presidential search process with Dr. Freeman as the\ncandidate for consideration by the Board and the University.\" 11 The Board also explained that\nthe Board properly approved the Adjusted Presidential Search Process with Dr. Freeman as the\ncandidate for consideration at its July 16, 2018, special meeting. The Adjusted Presidential\nSearch Process includes opportunities for University constituencies to provide their feedback \"on\nDr. Freeman's candidacy for review and consideration by the full Board at one of its future\nmeetings.\" 12 Lastly, the Board explained that it \"has taken no final action to appoint/employ a\npermanent president and is in the midst of the Adjusted Presidential Search Process with the rest\nof the Universi7[,J\" 13 and that \"[a]ny final action on the presidency will, of course, be done in\nopen session.\" 1\nIn her reply, the requester clarified that she is only contesting the Board's actions\non July 11, 2018, and prior, in regard to the official announcement. She argued that, through that\nannouncement, the University \"made a deliberate decision to tell the public that the board\napproached [Dr. Freeman] with our support[]\" 15 and that \"[t]he words 'As a Board we...' have\n10 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 2.\n\n\"Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 3.\n12 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (August 8, 2018), at 3.\n13 Letter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the lllinois Attorney\nGeneral (August 8, 2018), at 4.\n14\n\nLetter rrom Gregory A. Brady, Acting Vice President and General Counsel, Northern Illinois\nUniversity, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\nspecial meaning-the board [met] in quorum and took action. The chair of a board or individual\nmembers of a board do not have the authority to �eak for the board on any issue that the board\nhas not met upon and taken action on the issue.\" 1\nIn Gosnell v. Hogan, 179 Ill. App. 3d 161 (5th Dist. 1989), the plaintiff alleged\nthat a school board impermissibly took final action in closed session by deciding to make a\nrequest for mediation as an alternative to the unsuccessful negotiations it had been conducting\nwith its secretaries' union. Gosnell, 179 Ill. App. 3d at 169. The court rejected that allegation,\nholding that the school board only took an intermediate step toward resolving the dispute:\n[T]he request for mediation was part of the process of reaching a\nfinal action with the secretaries union. Mediation, similar to\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \"unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\n\nSee also Ill. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued July 14, 2015, at 3 (\"A component ofa\npublic body's process of reaching final action generally does not, itself, constitute final action.\"),\nand Ill. Att'y Gen. PAC Req. Rev. Ltr. 38155, issued July 20, 2016, at 3 (\"A school district's\ndiscussion during closed session to decline a proposed resolution from the Department of\nEducation's Office of Civil Rights (OCR) was part of a process of reaching final action, rather\nthan final action itself, including because the OCR's complaint processing procedures expressly\nprovided for continued negotiation after a public body rejects a voluntary resolution.\")\nThis office has reviewed the verbatim recording from the Board's June 14, 2018,\nclosed session in which the potential appointment of Dr. Freeman as permanent president was\ndiscussed. Based on that review, this office has determined that the Board's consensus on\npublically voicing its support of her candidacy in the Adjusted Presidential Search Process was\npart of a process of reaching final action, rather than final action itself. It is clear from the\nrecording that the Board was aware that its position on supporting Dr. Freeman for president was\nsubject to change, rather than irreversible. Likewise, the consensus of the Board expressed in the\nNIU Official Announcement that\nattached to her Request for Review reflects\nonly the intermediate step of tentatively supporting Dr. Freeman's candidacy and seeking\nadditional feedback. Indeed, the Adjusted Presidential Search Process expressly provided for the\n\nBoard to receive continued input and other information from various stakeholders after the Board\nrecommended a candidate, followed by final action at an open meeting. Because the District's\ndecision to publically v�r Dr. Freeman as permanent president was an interim\ndecision at the time of----Request for Review, rather than \"final action\" (such as\nappointing Dr. Freeman to the position) the Board did not violate section 2(e) of OMA by\nreaching a consensus on that position.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n(312) 793-0865 or the Chicago address on the bottom of the first page of this letter. This letter\nshall serve to close this matter.\nVery truly yours,\n\nMARIE HOLLISTER\nAssistant Attorney General\nPublic Access Bureau\n54002 o 201 proper 2e final action proper univ\ncc:\n\nVia electronic mail\nMr. Gregory A. Brady\nActing Vice President and General Counsel\nNorthern Illinois University\nAltgeld Hall 330\nDeKalb, Illinois 60115-2828\ngbrady@niu.edu"}
{"id":1271,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-05-31","case_number":null,"request_numbers":["54122"],"title":"Elmhurst Park District Board discussed topics outside closed session exception, violating OMA","filename":"54122, issued May 31, 2019__1.pdf","rel_path":null,"word_count":2921,"summary":"The PAC determined that the Elmhurst Park District Board of Commissioners improperly discussed matters outside the scope of the cited closed session exception, but did not take final action in closed session.","plain_summary":"A citizen complained that the Elmhurst Park District Board of Commissioners improperly closed a portion of its October 10, 2017, meeting to discuss a succession plan for the executive director, and may have taken final action on that plan in closed session. The Illinois Attorney General's Public Access Bureau found that the Board did not take final action in closed session, but did discuss certain topics that were outside the scope of the legal exception it used to close the meeting, violating the Open Meetings Act. The Bureau asked the Board to vote to release to the requester and make publicly available the portions of the closed session recording that did not directly concern specific employees.","holding":"The Elmhurst Park District Board of Commissioners violated the Open Meetings Act by discussing matters in closed session that were not permitted under the cited exception.","legal_question":"Whether the Elmhurst Park District Board of Commissioners violated the Open Meetings Act by discussing an executive director succession plan in closed session and taking final action on that plan in private.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2(c)(1)","5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Elmhurst Park District Board of Commissioners","requesting_party":"Mr. Andrew S. Paine","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a closed session to discuss the succession plan for the District's executive director.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/Reasonable-diligence-if-did-not-discover-violation-within-60-days/54122, issued May 31, 2019.pdf","sha256":"1e090d7bfffb85192c33838361d284aa0f8dda701f38e3b2bce1cdc032dee5a7","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","Open Meetings Act","executive director","succession plan"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"FFICE\n\nOF THE ATTORNEY\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nGENERAL\n\nOF ILLINOIS\n\nMay 31, 2019\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Andrew\n\nS. Paine\n\nTressler LLP\n233 South Wacker\n\nDrive, 22nd Floor\n\n[street address redacted for site publication -- see original PDF]\napaine@tresslerlIp.\n\ncom\n\nOMA Request for Review — 2018 PAC 54122\n\nRE:\n\nDear\n\nand Mr. Paine:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Elmhurst Park District ( District) Board of Commissioners ( Board)\n\nimproperly discussed certain matters that were outside the scope of the exception on which it\nrelied to close a portion of its October 10, 2017, meeting, but did not take final action in closed\nsession during that meeting.\nIn his Request\n\nfor Review,\n\nalleged\n\nthat at its October\n\n10, 2017,\n\nmeeting the Board improperly entered closed session under the section 2( c)( 1) exception ( 5 ILCS\n120/ 2( c)( 1) (\nWest 2017 Supp.)), to the general requirement that public bodies conduct public\nbusiness openly, to discuss the succession plan for the District' s executive director. Additionally,\nasserted that the Board did not appear to have taken a vote in open session at the October\n\n10, 2017, meeting, or any subsequent open meeting, to approve this succession plan. Therefore,\ncontended that the Board may have violated section 2( e) of OMA ( 5 ILCS 120/ 2( e)\n\n500 South\n\nSecond\n\nStreet,\n\n100 West Randolph\n601 South\n\nSpringfield,\n\nStreet, Chicago,\n\nUniversity Ave., Carbondale,\n\nIllinois 62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\nIllinois\n\n312) 814+ 3000 •\n\nTTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\n60601 • (\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Andrew S. Paine\n\nMay 31, 2019\nPage 2\n\nWest 2017 Supp.)) by taking final action in closed session during the Board' s October 10, 2017,\nmeeting.\n\nOn July 25, 2018, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of the open and closed session minutes and\n\nthe closed session verbatim recording of the October 10, 2017, meeting for this office' s\nconfidential review, together with a written response to the allegations in\nReview.\n\nRequest for\n\nOn August 23, 2018, counsel for the Board furnished the records and two versions of\n\nthe Board' s written response: a complete version for this office' s confidential review and a\nredacted version for this office to forward to\nOn August 24, 2018, this office forwarded\n\na copy of the redacted response to\n\nhe did not reply.\nDETERMINATION\n\nReasonable Diligence\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation.\n\nIf\n\nfacts concerning the violation are not discovered within the 60 day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. ( Emphasis added.)\n\nacknowledged in his Request for Review that the relevant meeting was\nheld more than 60 days before he submitted his Request for Review, but he argued that he had\n\nnot learned material facts concerning the alleged violations at the time that they occurred despite\nusing reasonable diligence.\nstated that the Board voted on June 11, 2018, to make the\nclosed session meeting minutes for the October 10, 2017, meeting open for public inspection,\nand that he became aware of the content of the closed session discussions on July 10, 2018, only\nafter he received the Board' s response to his Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 1\net\n\nseq. ( West 2016))\n\nrequest\n\nfor those closed\n\nsession\n\nmeeting\n\nminutes.\n\n\fMr. Andrew\n\nS. Paine\n\nMay 31, 2019\nPage 3\n\nBecause the closed session portion of the Board' s October 10, 2017, was not\naccessible to the public and because the minutes of the closed session were not made publicly\navailable until June 11, 2018,\nwas unable to discover the subject matter of the Board' s\n\nclosed session discussion within 60 days of that discussion despite using reasonable diligence.\n\nAccordingly, this office has authority to review\n\nallegations because he submitted them\n\nwithin the time limits set out in section 3. 5( a) of OMA.\nAlleged Violation of Section 2( c)( 1) of OMA\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2016). Section 2( a) of OMA\n5 ILCS 120/ 2( a) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 27,\n2018) provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2( c) of OMA ( 5 ILCS\n\n120/ 2( c) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 27, 2018). The\nsection 2( c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 5 ILCS 120/ 2( b) ( 5 ILCS 120/ 2( b) ( West 2017 Supp.), as amended by Public Act\n100- 646, effective July 27, 2018); see also Henry v. Anderson, 356 III. App. 3d 952, 996- 997\n4th Dist. 2005) ( strictly\n\nconstruing\n\nOMA\n\nsection\n\n2( c)( 1)).\n\nSection\n\n2( c)( 1)\n\nof OMA,\n\nthe\n\nexception on which the Board relied to close the meeting at issue, permits a public body to enter\nclosed session to discuss \"[ t] he appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees of the public body or legal counsel for the\npublic body.\"\n\nIn construing section 2( c)( 1) of OMA, the Attorney General has concluded that\nthe General Assembly did not intend to permit public bodies to hold general discussions\nconcerning\n\ncategories\n\nof employees\n\nin closed\n\nsession\n\npursuant\n\nto section 2( c)( 1).\"\n\nIII. Att' y Gen.\n\nPub. Acc. Op. No. 16- 013, issued December 23, 2016, at 4. Rather, \" section 2( c)( 1) of OMA ' is\nintended to permit public bodies to candidly discuss the relative merits of individual employees,\nor the conduct of individual employees.'\"\nIll. Att'y Gen. Pub. Acc. Op. No. 16- 013, at 5 ( quoting\n111. Att'y Gen. Pub. Acc. Op. No. 12- 011, issued July 11, 2012, at 3). The Public Access Bureau\nhas previously determined that \"[ t] he use of the term ' specific employees' in section 2( c)( I)\nsignificantly limits the scope of the exception\" to \" the hiring merits, performance, conduct or\nterms of employment of individual employees.\" III. Att'y Gen. PAC Req. Rev. Ltr. 12658,\nissued July 7, 2011, at 4.\nIn its non -confidential response to this office, the Board asserted that the meeting\n\nwas properly closed pursuant to 2( c)( 1). According to the Board, its annual evaluation of the\nexecutive director' s performance involves reviewing whether the executive director has met his\ngoals\n\nand\n\ndirectives.\n\nThe Board\n\nstated\n\nthat the executive\n\ndirector' s continued\n\nemployment\n\nand\n\n\fMr. Andrew S. Paine\nMay 31, 2019\nPage 4\n\ncompensation is directly impacted by whether, and to what extent, these goals and directives are\nmet. In this circumstance, the Board asserted that one such directive was to develop a succession\nplan for the executive director position. Therefore, the Board asserted its \" evaluation of the\n\nExecutive Director' s performance over the past year necessarily involved a review of the\nsuccession plan and whether or not the Park Board felt the plan was satisfactory and in the best\ninterests\n\nof the Park District.\"'\n\nThe Board further asserted that the succession plan could not be separated from\n\nthe executive director' s evaluation and discussed separately in open session because the plan\n\ncreated three positions, which would include removing responsibilities from two specific\nemployees of the District and the promotion of another specific District employee. The Board\ncontended that the discussion of the merits of the succession plan required a candid discussion of\n\nthe performance and abilities of these three individuals, including whether the current executive\n\ndirector and the Board believed that any of the identified employees were suitable to fill the\nexecutive director position. Therefore, the Board argued that a meaningful discussion of the\n\npotential succession plan could not have taken place without referring to the specific employees\nwho would be impacted by the plan.\nThis office has reviewed the closed session minutes and the verbatim recording of\n\nthe Board' s October 10, 2017, meeting, and finds that a significant part of the Board' s discussion\nof the proposed succession plan directly related to the employment, compensation, and\nperformance of specific individual employees.\n\nIn particular, the Board discussed specific\n\nemployees' qualifications and abilities and the merits and limitations of the proposed changes in\n\nstaffing as it related to those employees, all of which falls within the scope of the section 2( c)( 1)\nexception.\n\nThe entirety of the Board' s discussion, however, did not stay within the scope of\nthe section 2( c)( 1) exception. With the exception of a discrete portion of the discussion, the\nBoard did not discuss the performance of the executive director or consider whether he had met\n\nhis directive of developing a successful succession plan required by his 2016 performance\nevaluation. Rather, the remaining portions of the closed session involved the executive director\npresenting his proposed succession plan to the Board and addressing its merits, including how\nthe plan would benefit the District both in the short and long term. These parts of the discussion,\nwhich concerned subjects such as the timing of the succession plan and budgetary\nconsiderations, were separate and distinct from discussions of the performance and relative\n\nmerits of specific employees. When section 2( c)( 1) is strictly construed, as OMA requires, the\n\nexception cannot be reasonably interpreted as authorizing public bodies to discuss in closed\nLetter from Andrew S. Paine, Tressler, LLP, to Shannon Bamaby, Assistant Attorney General,\nPublic\n\nAccess\n\nBureau ( August\n\n23, 2018),\n\nat 4.\n\n\fMr. Andrew S. Paine\n\nMay 31, 2019\nPage 5\n\nsession whether to move forward on plans and projects produced by public employees simply\nbecause the employees' work on the plan or project will be considered in their performance\nreviews.\n\nBecause significant portions of the Board' s discussion did not address the\nexecutive director' s conduct or performance,\n\nor the performance or merits of other specific\n\nemployees who would be impacted by the succession plan, those portions do not carry\n\nimplications for the employees' reputations. See III. Att' y Gen. Pub. Acc. Op. No. 15- 007, issued\nSeptember 16, 2015, at 4 ( finding that discussions concerning the elimination of a job held by a\nsingle employee for budgetary reasons would not implicate an employee' s reputation, and\n\ntherefore did not fall within the exception in section 2( c)( 1); 111. Att' y Gen. Pub. Acc. Op. No.\n16- 013 ( section 2( c)( 1) did not authorize discussion ofacross- the- board salary increase for a\nbroad category of employees). Accordingly, this office concludes that the Board violated section\n\n2( a) of OMA by discussing certain unauthorized topics in closed session during its October 10,\n2017, meeting.\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available, the portions of the closed session verbatim recording that did not\ndirectly concern the appointment, employment, compensation, discipline, or performance of\nspecific employees. The remaining portions in which the performance and relative merits of\n\nspecific employees are discussed may be redacted. 2\nFinal Action During Closed Session\nRequest for Review also questioned whether the Board took improper\n\nfinal action during a closed meeting because he could not locate the Board' s vote during an open\nmeeting to approve a succession plan for the District' s executive director.\n\nSection 2( e) of OMA\n\n5 ILCS 120/ 2( e) ( West 2016)) provides that \"[ n] o final action may be taken at a closed meeting.\n\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\"\nIn Gosnell v. Hogan, 179 111. App. 3d 161, 176 ( 1989), the plaintiff alleged that a\nschool board impermissibly took final action in closed session by making a request for mediation\nas an altemative to the negotiations it had been conducting with the secretaries' union. The court\n\nrejected that allegation, holding that the school board only took an intermediate step toward\nresolving the dispute:\n\n2Discussions of topics that centered on individual employees occurred from 2: 28- 4: 35, 6: 12- 6: 28,\nand\n\n11: 00- 22: 00.\n\n\fMr. Andrew S. Paine\n\nMay 31, 2019\nPage 6\n\nT] he request for mediation was part of the process of reaching a\nfinal action with the secretaries\n\nunion.\n\nMediation,\n\nsimilar to\n\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \" unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\n\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\n\nunreasonable. Gosnell, 179 111. App. 3d at 176.\n\nAccordingly, a component of a public body' s process of reaching final action generally does not,\nitself, constitute final action. See, e. g., 111. Att' y Gen. PAC Req. Rev. Ltr. 52804, issued July 31,\n2018, at 5 ( by reaching consensus on jurisdictional issues concerning the scope of Board' s •\n\nreview, rather than bringing complaint to resolution, Board took a step in the process of reaching\nfinal action, rather than final action itself). Rather, \"' final action' generally must bring a matter to\na resolution.\" 111. Att' y Gen. PAC Req. Rev. Ltr. 43111, issued August 4, 2016, at 3 ( vote to\nreconsider whether to award a contract to the low qualified bidder was not final action because it\ndid not resolve the matter, in that \" final action on whether to in fact award the contract was held\n\nsee also 111. Att' y Gen. PAC Req. Rev. Ltr. 38155, issued July 20,\n2016, at 3 ( Board' s consensus on declining a proposed resolution to a student complaint was part\nof a process of reaching final action, rather than final action itself).\nover until\n\nthe next meeting.\");\n\nIn its response to this office, the Board acknowledged that it reached a consensus\n\non the succession plan during its October 10, 2017, closed session but denied that it amounted to\nfinal action. Instead, the Board argued that the new positions created by the succession plan, and\nthe additional financial impact created by those positions, were included in the District' s 2018\nbudget, which was approved by the Board in open session at its December 11, 2017, meeting.\nThis office has reviewed the closed session verbatim recording and concludes that\n\nin reaching a tentative consensus on moving forward with the suggestions proposed in the\nexecutive director's succession plan, the Board took a step in the process of reaching final action,\nrather than final action itself. The Board' s closed session discussion did not bring its\nconsideration of these matters to a final resolution; instead, only when the Board voted to\n\napprove the District' s 2018 budget could the staffing changes in the succession plan be\nimplemented.\nThis office has reviewed the minutes of the Board' s November 13, 2017,\n\nNovember 27, 2017, and December 11, 2017, meetings along with the District' s 2018 budget\ndocument which, among other things, specifically addressed the staffing changes proposed by\n\n\fMr. Andrew\n\nS. Paine\n\nMay 31, 2019\nPage 7\n\nthe executive director' s succession plan.;\n\nThese records confirm that the Board deliberated on\n\nthe tentative 2018 budget in open session during its November 13, 2017, and November 27,\n2017, meetings and voted on the matter in open session at its December 11, 2017, meeting.\n\nAccordingly, there is no basis from which this office could conclude that the Board violated\nsection 2( e) of OMA by taking final action on the succession plan in closed session.\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion. If you have any questions, please contact me\nby mail at the Chicago address at the bottom of the first page of this letter, by e- mail at\nsbamaby@atg. state. il. us, or by phone at ( 312) 550- 4480. This letter serves to close this file.\nVery truly yours,\n\nSHANNON BARNABY a\n\nAssistant Attorney General\nPublic Access\n\n54122 0 2c1\n\nproper\n\nimproper\n\nBureau\n\n2e proper pkd\n\nElmhurst Park District, https:// www.epd.org/ budget-and- financial- information ( last visited May\n9, 2019).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of an executive director succession plan","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-54122/","full_text":"FFICE\n\nOF THE ATTORNEY\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nGENERAL\n\nOF ILLINOIS\n\nMay 31, 2019\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Andrew\n\nS. Paine\n\nTressler LLP\n233 South Wacker\n\nDrive, 22nd Floor\n\n[street address redacted for site publication -- see original PDF]\napaine@tresslerlIp.\n\ncom\n\nOMA Request for Review — 2018 PAC 54122\n\nRE:\n\nDear\n\nand Mr. Paine:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS\n\n120/ 3. 5(e) (West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Elmhurst Park District (District) Board of Commissioners (Board)\n\nimproperly discussed certain matters that were outside the scope of the exception on which it\nrelied to close a portion of its October 10, 2017, meeting, but did not take final action in closed\nsession during that meeting.\nIn his Request\n\nfor Review,\n\nalleged\n\nthat at its October\n\n10, 2017,\n\nmeeting the Board improperly entered closed session under the section 2(c)(1) exception (5 ILCS\n120/ 2(c)(1) (West 2017 Supp.)), to the general requirement that public bodies conduct public\nbusiness openly, to discuss the succession plan for the District's executive director. Additionally,\nasserted that the Board did not appear to have taken a vote in open session at the October\n\n10, 2017, meeting, or any subsequent open meeting, to approve this succession plan. Therefore,\ncontended that the Board may have violated section 2(e) of OMA (5 ILCS 120/ 2(e)\n\n500 South\n\nSecond\n\nStreet,\n\n100 West Randolph\n601 South\n\nSpringfield,\n\nStreet, Chicago,\n\nUniversity Ave., Carbondale,\n\nIllinois 62701 • (217) 782- 1090 •\n\nTTY: (877) 844- 5461 •\n\nFax: (217) 782- 7046\n\nWest 2017 Supp.)) by taking final action in closed session during the Board's October 10, 2017,\nmeeting.\n\nOn July 25, 2018, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of the open and closed session minutes and\n\nthe closed session verbatim recording of the October 10, 2017, meeting for this office's\nconfidential review, together with a written response to the allegations in\nReview.\n\nRequest for\n\nOn August 23, 2018, counsel for the Board furnished the records and two versions of\n\nthe Board's written response: a complete version for this office's confidential review and a\nredacted version for this office to forward to\nOn August 24, 2018, this office forwarded\n\na copy of the redacted response to\n\nhe did not reply.\nDETERMINATION\n\nReasonable Diligence\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation.\n\nIf\n\nfacts concerning the violation are not discovered within the 60 day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\n\nacknowledged in his Request for Review that the relevant meeting was\nheld more than 60 days before he submitted his Request for Review, but he argued that he had\n\nnot learned material facts concerning the alleged violations at the time that they occurred despite\nusing reasonable diligence.\nstated that the Board voted on June 11, 2018, to make the\nclosed session meeting minutes for the October 10, 2017, meeting open for public inspection,\nand that he became aware of the content of the closed session discussions on July 10, 2018, only\nafter he received the Board's response to his Freedom of Information Act (FOIA) (5 ILCS 140/ 1\net\n\nseq. (West 2016))\n\nrequest\n\nBecause the closed session portion of the Board's October 10, 2017, was not\naccessible to the public and because the minutes of the closed session were not made publicly\navailable until June 11, 2018,\nwas unable to discover the subject matter of the Board's\n\nclosed session discussion within 60 days of that discussion despite using reasonable diligence.\n\nAccordingly, this office has authority to review\n\nallegations because he submitted them\n\nwithin the time limits set out in section 3. 5(a) of OMA.\nAlleged Violation of Section 2(c)(1) of OMA\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2016). Section 2(a) of OMA\n5 ILCS 120/ 2(a) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 27,\n2018) provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA (5 ILCS\n\n120/ 2(c) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 27, 2018). The\nsection 2(c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 5 ILCS 120/ 2(b) (5 ILCS 120/ 2(b) (West 2017 Supp.), as amended by Public Act\n100- 646, effective July 27, 2018); see also Henry v. Anderson, 356 III. App. 3d 952, 996- 997\n4th Dist. 2005) (strictly\n\nconstruing\n\nOMA\n\nsection\n\n2(c)(1)).\n\nSection\n\n2(c)(1)\n\nof OMA,\n\nthe\n\nexception on which the Board relied to close the meeting at issue, permits a public body to enter\nclosed session to discuss \"[ t] he appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees of the public body or legal counsel for the\npublic body.\"\n\nIn construing section 2(c)(1) of OMA, the Attorney General has concluded that\nthe General Assembly did not intend to permit public bodies to hold general discussions\nconcerning\n\ncategories\n\nof employees\n\nin closed\n\nsession\n\npursuant\n\nto section 2(c)(1).\"\n\nIII. Att' y Gen.\n\nPub. Acc. Op. No. 16- 013, issued December 23, 2016, at 4. Rather, \" section 2(c)(1) of OMA ' is\nintended to permit public bodies to candidly discuss the relative merits of individual employees,\nor the conduct of individual employees.'\"\nIll. Att'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting\n111. Att'y Gen. Pub. Acc. Op. No. 12- 011, issued July 11, 2012, at 3). The Public Access Bureau\nhas previously determined that \"[ t] he use of the term ' specific employees' in section 2(c)(I)\nsignificantly limits the scope of the exception\" to \" the hiring merits, performance, conduct or\nterms of employment of individual employees.\" III. Att'y Gen. PAC Req. Rev. Ltr. 12658,\nissued July 7, 2011, at 4.\nIn its non -confidential response to this office, the Board asserted that the meeting\n\nwas properly closed pursuant to 2(c)(1). According to the Board, its annual evaluation of the\nexecutive director's performance involves reviewing whether the executive director has met his\ngoals\n\nand\n\ndirectives.\n\nThe Board\n\ncompensation is directly impacted by whether, and to what extent, these goals and directives are\nmet. In this circumstance, the Board asserted that one such directive was to develop a succession\nplan for the executive director position. Therefore, the Board asserted its \" evaluation of the\n\nExecutive Director's performance over the past year necessarily involved a review of the\nsuccession plan and whether or not the Park Board felt the plan was satisfactory and in the best\ninterests\n\nof the Park District.\"'\n\nThe Board further asserted that the succession plan could not be separated from\n\nthe executive director's evaluation and discussed separately in open session because the plan\n\ncreated three positions, which would include removing responsibilities from two specific\nemployees of the District and the promotion of another specific District employee. The Board\ncontended that the discussion of the merits of the succession plan required a candid discussion of\n\nthe performance and abilities of these three individuals, including whether the current executive\n\ndirector and the Board believed that any of the identified employees were suitable to fill the\nexecutive director position. Therefore, the Board argued that a meaningful discussion of the\n\npotential succession plan could not have taken place without referring to the specific employees\nwho would be impacted by the plan.\nThis office has reviewed the closed session minutes and the verbatim recording of\n\nthe Board's October 10, 2017, meeting, and finds that a significant part of the Board's discussion\nof the proposed succession plan directly related to the employment, compensation, and\nperformance of specific individual employees.\n\nIn particular, the Board discussed specific\n\nemployees' qualifications and abilities and the merits and limitations of the proposed changes in\n\nstaffing as it related to those employees, all of which falls within the scope of the section 2(c)(1)\nexception.\n\nThe entirety of the Board's discussion, however, did not stay within the scope of\nthe section 2(c)(1) exception. With the exception of a discrete portion of the discussion, the\nBoard did not discuss the performance of the executive director or consider whether he had met\n\nhis directive of developing a successful succession plan required by his 2016 performance\nevaluation. Rather, the remaining portions of the closed session involved the executive director\npresenting his proposed succession plan to the Board and addressing its merits, including how\nthe plan would benefit the District both in the short and long term. These parts of the discussion,\nwhich concerned subjects such as the timing of the succession plan and budgetary\nconsiderations, were separate and distinct from discussions of the performance and relative\n\nmerits of specific employees. When section 2(c)(1) is strictly construed, as OMA requires, the\n\nexception cannot be reasonably interpreted as authorizing public bodies to discuss in closed\nLetter from Andrew S. Paine, Tressler, LLP, to Shannon Bamaby, Assistant Attorney General,\n\nsession whether to move forward on plans and projects produced by public employees simply\nbecause the employees' work on the plan or project will be considered in their performance\nreviews.\n\nBecause significant portions of the Board's discussion did not address the\nexecutive director's conduct or performance,\n\nor the performance or merits of other specific\n\nemployees who would be impacted by the succession plan, those portions do not carry\n\nimplications for the employees' reputations. See III. Att' y Gen. Pub. Acc. Op. No. 15- 007, issued\nSeptember 16, 2015, at 4 (finding that discussions concerning the elimination of a job held by a\nsingle employee for budgetary reasons would not implicate an employee's reputation, and\n\ntherefore did not fall within the exception in section 2(c)(1); 111. Att' y Gen. Pub. Acc. Op. No.\n16- 013 (section 2(c)(1) did not authorize discussion ofacross- the- board salary increase for a\nbroad category of employees). Accordingly, this office concludes that the Board violated section\n\n2(a) of OMA by discussing certain unauthorized topics in closed session during its October 10,\n2017, meeting.\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available, the portions of the closed session verbatim recording that did not\ndirectly concern the appointment, employment, compensation, discipline, or performance of\nspecific employees. The remaining portions in which the performance and relative merits of\n\nspecific employees are discussed may be redacted. 2\nFinal Action During Closed Session\nRequest for Review also questioned whether the Board took improper\n\nfinal action during a closed meeting because he could not locate the Board's vote during an open\nmeeting to approve a succession plan for the District's executive director.\n\nSection 2(e) of OMA\n\n5 ILCS 120/ 2(e) (West 2016)) provides that \"[ n] o final action may be taken at a closed meeting.\n\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\"\nIn Gosnell v. Hogan, 179 111. App. 3d 161, 176 (1989), the plaintiff alleged that a\nschool board impermissibly took final action in closed session by making a request for mediation\nas an altemative to the negotiations it had been conducting with the secretaries' union. The court\n\nrejected that allegation, holding that the school board only took an intermediate step toward\nresolving the dispute:\n\n2 Discussions of topics that centered on individual employees occurred from 2: 28- 4: 35, 6: 12- 6: 28,\n\nT] he request for mediation was part of the process of reaching a\nfinal action with the secretaries\n\nunion.\n\nMediation,\n\nsimilar to\n\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \" unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\n\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\n\nunreasonable. Gosnell, 179 111. App. 3d at 176.\n\nAccordingly, a component of a public body's process of reaching final action generally does not,\nitself, constitute final action. See, e. g., 111. Att' y Gen. PAC Req. Rev. Ltr. 52804, issued July 31,\n2018, at 5 (by reaching consensus on jurisdictional issues concerning the scope of Board's •\n\nreview, rather than bringing complaint to resolution, Board took a step in the process of reaching\nfinal action, rather than final action itself). Rather, \"' final action' generally must bring a matter to\na resolution.\" 111. Att' y Gen. PAC Req. Rev. Ltr. 43111, issued August 4, 2016, at 3 (vote to\nreconsider whether to award a contract to the low qualified bidder was not final action because it\ndid not resolve the matter, in that \" final action on whether to in fact award the contract was held\n\nsee also 111. Att' y Gen. PAC Req. Rev. Ltr. 38155, issued July 20,\n2016, at 3 (Board's consensus on declining a proposed resolution to a student complaint was part\nof a process of reaching final action, rather than final action itself).\nover until\n\nthe next meeting.\");\n\nIn its response to this office, the Board acknowledged that it reached a consensus\n\non the succession plan during its October 10, 2017, closed session but denied that it amounted to\nfinal action. Instead, the Board argued that the new positions created by the succession plan, and\nthe additional financial impact created by those positions, were included in the District's 2018\nbudget, which was approved by the Board in open session at its December 11, 2017, meeting.\nThis office has reviewed the closed session verbatim recording and concludes that\n\nin reaching a tentative consensus on moving forward with the suggestions proposed in the\nexecutive director's succession plan, the Board took a step in the process of reaching final action,\nrather than final action itself. The Board's closed session discussion did not bring its\nconsideration of these matters to a final resolution; instead, only when the Board voted to\n\napprove the District's 2018 budget could the staffing changes in the succession plan be\nimplemented.\nThis office has reviewed the minutes of the Board's November 13, 2017,\n\nNovember 27, 2017, and December 11, 2017, meetings along with the District's 2018 budget\ndocument which, among other things, specifically addressed the staffing changes proposed by\n\nthe executive director's succession plan.;\n\nThese records confirm that the Board deliberated on\n\nthe tentative 2018 budget in open session during its November 13, 2017, and November 27,\n2017, meetings and voted on the matter in open session at its December 11, 2017, meeting.\n\nAccordingly, there is no basis from which this office could conclude that the Board violated\nsection 2(e) of OMA by taking final action on the succession plan in closed session.\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion. If you have any questions, please contact me\nby mail at the Chicago address at the bottom of the first page of this letter, by e- mail at\nsbamaby@atg. state. il. us, or by phone at (312) 550- 4480. This letter serves to close this file.\nVery truly yours,\n\nSHANNON BARNABY a\n\nAssistant Attorney General\nPublic Access\n\n54122 0 2c1\n\nproper\n\nimproper\n\nBureau\n\n2e proper pkd\n\nElmhurst Park District, https:// www.epd.org/ budget-and- financial- information (last visited May\n9, 2019)."}
{"id":1272,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-02-14","case_number":null,"request_numbers":["54143"],"title":"Lisle board violated OMA by allowing remote attendance without vote, but not by denying remote public comment","filename":"54143, issued February 14, 2019.pdf","rel_path":null,"word_count":2715,"summary":"A requester alleged the Village of Lisle Board of Trustees violated the Open Meetings Act by denying his request to provide public comment remotely while simultaneously allowing a Trustee to participate and comment remotely. The PAC determined the Board violated OMA by failing to follow proper procedures for remote attendance by a member, but did not violate OMA by denying the requester's remote public comment.","plain_summary":"A citizen complained that a Village Board allowed a Trustee to participate in a meeting by phone but refused to let the citizen do the same for public comment. The Attorney General's office found that the Board broke the law by letting the Trustee join remotely without following the required voting procedures. However, the Board was within its rights to deny the citizen's request to provide public comment remotely.","holding":"The Board of Trustees of the Village of Lisle violated OMA by permitting a Trustee to attend and participate in a meeting remotely without a formal vote, but did not violate OMA by prohibiting a member of the public from providing remote public comment.","legal_question":"Whether a public body violates the Open Meetings Act by allowing a member to attend remotely without a majority vote and by denying a member of the public the right to provide remote public comment.","disposition":"partial_violation","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of the Village of Lisle","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The dispute concerns the procedural requirements for remote attendance by public officials and the rights of the public to provide remote testimony at meetings.","ocr_status":"ok","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/54143, issued February 14, 2019.pdf","sha256":"08db5fdecfb6e6e1439fd04ee82504b1fb0e025c84d09aad4e0245b3db030228","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","public comment","trustee attendance","open meetings act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE\n\nOF THE AT\n\nORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 14, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Elliott\n\nRobbins Schwartz\n\n631 East Boughton Road, Suite 200\nBolingbrook, Illinois 60440- 3098\nkelliott@robbins- schwartz. com\nRE:\nDear\n\nOMA Request for Review — 018 PAC 54143\n\nand Ms. Elliott:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Trustees of the Village of Lisle ( Board) violated the requirements of\n\nOMA by permitting Trustee Anthony Carballo to attend its July 23, 2018, meeting by telephone\n\nand to address the Board, but did not violate OMA by prohibiting\naddressing the Board when he was not physically present at the meeting.\n\nfrom\n\nOn July 24, 2018, the Public Access Bureau received a Request for Review from\n\nalleging that the Board had discriminated against him at it July 23, 2018, meeting\n\nbecause it did not grant his e- mailed request to make public comment after it had permitted\n\nTrustee Carballo to comment by telephone at the game meeting. In particular,\n\nstated\n\nthat he was viewing the meeting remotely and sent e- mails to the Village manager and to all of\n\nthe Board members requesting the opportunity to Comment by telephone because Trustee\nCarballo had made \" public comment\" remotely.\n\nstated that a member of the Board\n\npublicly acknowledged his request to comment, but he was not permitted to do so.\n\nOn August 6, 2018, the Public Access Bureau sent a copy of the Request for\nReview to the Board and asked it to respond to\n\nallegation that the Board had not\n\n5001South Second Street, Springfield, IlIinois 62706 • ( 217) 7$ 2- 1090 • TTY: ( 217) 785.- 2771 • Fax: ( 217) 782- 7046\n100 West Randolph\n1001\n\nStreet,\n\nEast Main,\n\nChicago, Illinois, 60601 • (\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\nCarbondale, Illinois 62901 • ( 618) 529- 400 • TTY: ( 618) 529- 6403 • Fax: ( 618)\n6416\n529-\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 2\n\nallowed him to comment by telephone when it ha. allowed Trustee Carballo to speak remotely.\n\nThis office also requested that the Board provide this office with a copy of its rules for public\n\ncomment and for meeting attendance by means other than physical presence by a Board member.\nThis office did not receive a response from the Beard to our August 6, 2018, correspondence.\n\nOn August 27, 2018, this office sent the Board a second letter requesting that it respond to\nRequest for Review. On September 5, 2018, counsel for the Board provided this office\nwith a written answer on behalf of the Board, together with copies of the Board' s established and\n\nrecorded rules for public comment and attendance by other means. On September 7, 2018, this\n\noffice sent\n16, 2018.\n\na copy of the Board' s answer; he submitted a written reply on September\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon in any way.\"\n\n5 ILCS 120/ 1 ( West 2016). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\n\nis to assure that agency actions be taken openly\nopenly.\"\n\nGosnell v. Hogan,\n\n179 I11.\n\nApp. 3d\n\nd that their deliberations be conducted\n171 ( 5th Dist. 1989).\n\n1611,\n\nAuthorization for Trustee Carballo' s Remote Participation\n\nRequest for Review questioned whether the Board violated OMA by\n\nallowing Trustee Carballo to participate at the July 23, 2018, meeting by audio conference even\nthough a motion to allow him to attend the meeting by means other than physical presence was\nnot seconded or otherwise approved.\n\nSection 7 of OMA ( 5 ILCS 120/ 7 ( West 2017 Supp.)) provides for the attendance\nof a member of a public body by means other tharphysical presence in limited circumstances:\n\na) If a quorum of the members f the public body is physically\npresent as required by Section 2. 01 a majority of the public body\nmay allow a member of that body t attend the meeting by other\n\nmeans if the member is prevented from physically attending\nbecause of: (i) personal illness or d sability; ( ii) employment\npurposes or the business of the pub is body; or ( iii) a family or\nother emergency. \"\n\nOther means\" is by video or audio\n\nconference.\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 3\n\nb) If a member wishes to attend a meeting by other means, the\nmember must notify the recording secretary or clerk of the public\n\nbody before the meeting unless advance notice is impractical.\nc) A majority of the public body may allow a member to attend\na meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\n\nfurther limit the extent to which attendance by other means is\nallowed; and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. ( Emphasis\nadded.)\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\n\nthe discretion to permit a member who is not physically present to participate in the meeting by\naudio or video conference for any of the three re+ ons set forth in section 7( a) of OMA and in\naccordance with its rules for attendance by other means.\n\nThe Board provided this office with a copy of its ordinance adopting procedures\n\nfor electronic attendance at meetings, Ordinance 2007- 4117, adopted June 4, 2007. The Board' s\nrules state that a member that meets the one of the three reasons for being unable to physically\n\nattend the meeting \" should notify the Village Clerk at least 24 hours before the meeting, unless\nimpractical, so that necessary\n\ncommunications equipment can\n\nbe arranged.\"'\n\nThe rules set forth\n\nthe following procedures for permitting a person ( o attend electronically:\nAfter establishing that a quorum is physically present at a meeting\nwhere a member of the Village de ires to attend electronically, the\npresiding officer shall state that ( i)\nnotice was received by a\nmember of the Village in accordance with these Rules, and ( ii) the\n\n1a\n\nmember will be deemed authorize to attend the meeting\nelectronically unless a motion obj cting to the member' s electronic\n\nattendance is made, seconded and pproved by two- thirds of the\nmembers of the Village.[ 21\n\nVillage of Lisle, Electronic Attendance\n\nt Meetings Rules, Ordinance No. 2007- 4117, June 4,\n\n2007, at 1 ( on file with author).\nVillage of Lisle, Electronic Attendance At Meetings Rules, Ordinance No. 2007- 4117, June 4,\n2007, at 1 (\n\non file with\n\nauthor).\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 4\n\nThe Board's rules further state that a member who is \" permitted to attend electronically will be\nable to express his or her comments during the meeting[, and] shall be heard, considered, and\ncounted as to any vote taken.\" 3\n\nIn response to this office' s inquiry as to the basis for permitting Trustee Carballo\nto speak at the meeting, the Board' s counsel stated that the Board voted to allow Trustee Robert\n\nJ. Mandelto attend the meeting by audio conferen,ce. However:\nTrustee Carballo was not allowed o electronically participate\nbecause he did not meet the requirements. Trustee Carballo was\nallowed to listen to the proceedingls, as it was not clear if he could\n\nbe disconnected without disconnecting Trustee Mandel. Later in\nthe meeting Trustee Carballo requested to make a public comment,\n\nwhich the Village President allowed by vote of the Village\nBoard. 141\n\nThe Board's response to this office acknowledges that Trustee Carballo was not eligible to attend\n\nthe July 23, 2018, meeting by audio conference because he did not meet any of the requirements\n\nof section 7( a) of OMA. Indeed, this office' s review of the video recording of the meeting\nindicates that the Board questioned Trustee Carb llo about the reasons for his not being able to\nattend the meeting in person and discussed whether he was eligible to attend the meeting by\naudio conference. A motion was made during the meeting to allow Trustee Carballo to attend\n\nthe meeting by audio conference but was not seconded by another trustee on the Board.\n\nTherefore, Trustee Carballo was not authorized to participate in the meeting electronically.\nThis office' s review of the video recording of the meeting also indicated that the\nBoard had arranged communications equipment so that Trustee Carballo and Trustee Mandel\nwere both on an audio conference call with the olier members of the Board at the start of the\n\nmeeting. When the motion to allow Trustee Carbfallo to attend the meeting by audio conference\nfailed to receive a second, Trustee Carballo' s connection to the Board through an audio\n\nconference set up for Board members attending electronically should have been terminated. The\nBoard asserted that it could not disconnect Trustee Carballo from the audio conference without\n\ndisconnecting Trustee Mandel. However, instead of permitting Trustee Carballo to continue to\nVillage of Lisle, Electronic Attendance At Meetings Rules, Ordinance No. 2007- 4117, June 4,\n2007, at 2 ( on file with author).\n\n4Letter from Kathleen Elliott, Village Attorney, Robbins Schwartz, to Matt Hartman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( September 5, 2018), at 1.\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 5\n\nparticipate in the meeting by audio conference, it appears that the Board could have requested\nthat Trustee Carballo hang up his phone or could have disconnected both Trustee Carballo and\nTrustee Mandel and arranged for Trustee Mandel to rejoin the audio conference with the Board.\nBecause Trustee Carballo continued to remain on the audio conference with\n\nTrustee Mandel and the members of the Board who were physically present, he was able to\n\ninterrupt the Board later in the meeting to ask whether he was permitted to participate publicly at\n\nthe nieeting. The Board entertained and approved a motion to allow Trustee Carballo to make\ncomments as a member of the public. Trustee Cafballo subsequently participated through the\n\nBoard member only audio connection during public comment periods and made multiple\nadditional requests to comment throughout the meleting. Because Trustee Carballo is, in fact, an\n\nelected official and Board member, and not a member of the public during Board meetings, he\nshould not have been allowed to participate electronically during the public comment portion of\n\nthe meeting. By doing so Trustee Carballo was improperly attending the meeting remotely,\nnotwithstanding that it was clear he was not eligible to attend under the circumstances of his\nabsence.\n\nAlthough the Board attempted to limit Trustee Carballo' s comments at the\n\nmeeting to the same length of comments that a member of the public who was present at the\n\nmeeting would be allowed to make and did not adow him to vote, OMA does not distinguish\nbetween a member of the public body attending the meeting by other means as a member of the\n\npublic body and as a member of the public. Instead, OMA provides only for a member of the\npublic body to attend a meeting by other means pursuant to section 7 of OMA. Therefore, the\nBoard' s vote to allow Trustee Carballo to participate in the meeting as a member of the public\ninstead of as a member of the Board is a distinction that is not supported by OMA. Moreover,\n\nTrustee Carballo' s direct connection to the Board hat allowed him to participate in the meeting\nutilized the audio conference equipment set up byfthe Board for the exclusive use of members of\n\nthe Board who were not physically present and approved to attend the meeting. His participation\nin the meeting after the Board declined to approv his request to attend electronically constituted\nattendance at the meeting. It is undisputed that T ustee Carballo was ineligible to attend the\n\nmeeting by audio conference. Thus, the Board viplated sections 7( a) and 7( c) of OMA by\n\nallowing Trustee Carballo to attend its July 23, 2018, meeting remotely.\nPublic Comment by a Member of th Public not in Physical Attendance\nAs noted above, the policy of OMA is to guarantee the right of all individuals to\nattend all meetings of public bodies where business is discussed or acted upon: See 5 ILCS\n\n120/ 1 ( West 2016). As part of the right to attend irieetings of public bodies, section 2. 06( g) of\nOMA ( 5 ILCS 120/ 2. 06( g) ( West 2016)) provides that \"[ a] ny person shall be permitted an\nopportunity to address\n\npublic\n\nofficials under\n\nthe rules established\n\nand\n\nrecorded\n\nby the public\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 6\n\nbody.\" The intention of section 2. 06( g) of OMA is provide individuals who attend a meeting of\na public body the right to address the officials of that public body under the rules established by\nthe public\n\nbody. The word \" attend\" is defined as Ito be present at: go to\n\na meeting> <—\n\ncollege>[. j\" Webster' s Third New International Dictionary ( 1993), at 140. Thus, in order \" to\nattend\" a meeting of a public body, a person must be present at or go to the location of the\nmeeting.\n\nalleged that the Board Violated OMA because it did not permit him to\nprovide public comment at the July 23, 2018, meeting.\n\nacknowledged that he did not\n\nphysically attend the meeting but stated he was streaming the meeting remotely. Although\n\nsection 7 of OMA provides a mechanism for a member of a public body to attend and participate\n\nin a meeting by means other than physical presenee, OMA does not provide a similar opportunity\nfor members of the public to attend a meeting by means other than physical presence. Although\n\na public body may elect to allow public comment rom individuals who are not physically\npresent at the meeting, the Board' s established an\n\nrecorded rules do not provide for public\n\ncomment from individuals who are not physically present. Further, no provision of OMA\n\nrequires the Board to do so. Because only individ als who attend the meeting have the right to\naddress public officials and because\ndid not attend the meeting, the Board did not\nviolate section 2. 06( g) of OMA at its July 23, 2018, meeting when it did not provide\nwith an opportunity to provide public comment in accordance with its established and recorded\nrules.\n\nThere are no means by which the Board can remedy its violation of sections 7( a)\nand 7( c) of OMA when it allowed Trustee Carballo to continue to attend and participate in the\nJuly 23, 2018, meeting. With respect to the Board' s violation of sections 7( a) and 7( c), however,\nsection 7 provides that \"[ a] majority of the public body may allow a member to attend a\nmeeting[.]\"\n\nThese violations can be avoided in thf future if the Board alters its rules to require a\n\nmajority vote of its membership prior to allowing [ emote attendance rather than permitting such\nattendance unless the Board takes action to deny the request. This office requests that the Board\ncomply with\n\nthe requirements\n\nof sections\n\n7( a), 7( b),\n\nand\n\n7( c)\n\nof\n\nOMA\n\nat\n\nfuture\n\nmeetings.\n\n\fMs. Kathleen Elliott\n\nFebruary 14, 2019\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Th s letter serves to close this matter. If you have\n\nany questions, please contact me at ( 217) 782- 9054, mhartman@atg. state. il.us, or the Springfield\naddress on the bottom of the first page of this letter.\n\nVery truly yours,\n\nT HARTMAN\n\nAssiistant Attorney General\nPublic Access Bureau\n54143 o 7 attendance improper 206 pub comment\n\nproper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Remote attendance rules and public remote testimony","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-54143/","full_text":"OFFICE\n\nOF THE AT\n\nORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 14, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Elliott\n\nRobbins Schwartz\n\n631 East Boughton Road, Suite 200\nBolingbrook, Illinois 60440- 3098\nkelliott@robbins- schwartz. com\nRE:\nDear\n\nOMA Request for Review — 018 PAC 54143\n\nand Ms. Elliott:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Trustees of the Village of Lisle (Board) violated the requirements of\n\nOMA by permitting Trustee Anthony Carballo to attend its July 23, 2018, meeting by telephone\n\nand to address the Board, but did not violate OMA by prohibiting\naddressing the Board when he was not physically present at the meeting.\n\nfrom\n\nOn July 24, 2018, the Public Access Bureau received a Request for Review from\n\nalleging that the Board had discriminated against him at it July 23, 2018, meeting\n\nbecause it did not grant his e- mailed request to make public comment after it had permitted\n\nTrustee Carballo to comment by telephone at the game meeting. In particular,\n\nstated\n\nthat he was viewing the meeting remotely and sent e- mails to the Village manager and to all of\n\nthe Board members requesting the opportunity to Comment by telephone because Trustee\nCarballo had made \" public comment\" remotely.\n\nstated that a member of the Board\n\npublicly acknowledged his request to comment, but he was not permitted to do so.\n\nOn August 6, 2018, the Public Access Bureau sent a copy of the Request for\nReview to the Board and asked it to respond to\n\nallegation that the Board had not\n\n5001South Second Street, Springfield, IlIinois 62706 • (217) 7$ 2- 1090 • TTY: (217) 785.- 2771 • Fax: (217) 782- 7046\n100 West Randolph\n1001\n\nStreet,\n\nallowed him to comment by telephone when it ha. allowed Trustee Carballo to speak remotely.\n\nThis office also requested that the Board provide this office with a copy of its rules for public\n\ncomment and for meeting attendance by means other than physical presence by a Board member.\nThis office did not receive a response from the Beard to our August 6, 2018, correspondence.\n\nOn August 27, 2018, this office sent the Board a second letter requesting that it respond to\nRequest for Review. On September 5, 2018, counsel for the Board provided this office\nwith a written answer on behalf of the Board, together with copies of the Board's established and\n\nrecorded rules for public comment and attendance by other means. On September 7, 2018, this\n\noffice sent\n16, 2018.\n\na copy of the Board's answer; he submitted a written reply on September\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon in any way.\"\n\n5 ILCS 120/ 1 (West 2016). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\n\nis to assure that agency actions be taken openly\nopenly.\"\n\nGosnell v. Hogan,\n\n179 I11.\n\nApp. 3d\n\nd that their deliberations be conducted\n171 (5th Dist. 1989).\n\n1611,\n\nAuthorization for Trustee Carballo's Remote Participation\n\nRequest for Review questioned whether the Board violated OMA by\n\nallowing Trustee Carballo to participate at the July 23, 2018, meeting by audio conference even\nthough a motion to allow him to attend the meeting by means other than physical presence was\nnot seconded or otherwise approved.\n\nSection 7 of OMA (5 ILCS 120/ 7 (West 2017 Supp.)) provides for the attendance\nof a member of a public body by means other tharphysical presence in limited circumstances:\n\na) If a quorum of the members f the public body is physically\npresent as required by Section 2. 01 a majority of the public body\nmay allow a member of that body t attend the meeting by other\n\nmeans if the member is prevented from physically attending\n\nb) If a member wishes to attend a meeting by other means, the\nmember must notify the recording secretary or clerk of the public\n\nbody before the meeting unless advance notice is impractical.\nc) A majority of the public body may allow a member to attend\na meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\n\nfurther limit the extent to which attendance by other means is\nallowed; and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. (Emphasis\nadded.)\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\n\nthe discretion to permit a member who is not physically present to participate in the meeting by\naudio or video conference for any of the three re+ ons set forth in section 7(a) of OMA and in\naccordance with its rules for attendance by other means.\n\nThe Board provided this office with a copy of its ordinance adopting procedures\n\nfor electronic attendance at meetings, Ordinance 2007- 4117, adopted June 4, 2007. The Board's\nrules state that a member that meets the one of the three reasons for being unable to physically\n\nattend the meeting \" should notify the Village Clerk at least 24 hours before the meeting, unless\nimpractical, so that necessary\n\ncommunications equipment can\n\nbe arranged.\"'\n\nThe rules set forth\n\nthe following procedures for permitting a person (o attend electronically:\nAfter establishing that a quorum is physically present at a meeting\nwhere a member of the Village de ires to attend electronically, the\npresiding officer shall state that (i)\nnotice was received by a\nmember of the Village in accordance with these Rules, and (ii) the\n\n1a\n\nmember will be deemed authorize to attend the meeting\nelectronically unless a motion obj cting to the member's electronic\n\nattendance is made, seconded and pproved by two- thirds of the\nmembers of the Village.[ 21\n\nVillage of Lisle, Electronic Attendance\n\nt Meetings Rules, Ordinance No. 2007- 4117, June 4,\n\n2007, at 1 (on file with author).\nVillage of Lisle, Electronic Attendance At Meetings Rules, Ordinance No. 2007- 4117, June 4,\n\nThe Board's rules further state that a member who is \" permitted to attend electronically will be\nable to express his or her comments during the meeting[, and] shall be heard, considered, and\ncounted as to any vote taken.\" 3\n\nIn response to this office's inquiry as to the basis for permitting Trustee Carballo\nto speak at the meeting, the Board's counsel stated that the Board voted to allow Trustee Robert\n\nJ. Mandelto attend the meeting by audio conferen,ce. However:\nTrustee Carballo was not allowed o electronically participate\nbecause he did not meet the requirements. Trustee Carballo was\nallowed to listen to the proceedingls, as it was not clear if he could\n\nbe disconnected without disconnecting Trustee Mandel. Later in\nthe meeting Trustee Carballo requested to make a public comment,\n\nwhich the Village President allowed by vote of the Village\nBoard. 141\n\nThe Board's response to this office acknowledges that Trustee Carballo was not eligible to attend\n\nthe July 23, 2018, meeting by audio conference because he did not meet any of the requirements\n\nof section 7(a) of OMA. Indeed, this office's review of the video recording of the meeting\nindicates that the Board questioned Trustee Carb llo about the reasons for his not being able to\nattend the meeting in person and discussed whether he was eligible to attend the meeting by\naudio conference. A motion was made during the meeting to allow Trustee Carballo to attend\n\nthe meeting by audio conference but was not seconded by another trustee on the Board.\n\nTherefore, Trustee Carballo was not authorized to participate in the meeting electronically.\nThis office's review of the video recording of the meeting also indicated that the\nBoard had arranged communications equipment so that Trustee Carballo and Trustee Mandel\nwere both on an audio conference call with the olier members of the Board at the start of the\n\nmeeting. When the motion to allow Trustee Carbfallo to attend the meeting by audio conference\nfailed to receive a second, Trustee Carballo's connection to the Board through an audio\n\nconference set up for Board members attending electronically should have been terminated. The\nBoard asserted that it could not disconnect Trustee Carballo from the audio conference without\n\ndisconnecting Trustee Mandel. However, instead of permitting Trustee Carballo to continue to\nVillage of Lisle, Electronic Attendance At Meetings Rules, Ordinance No. 2007- 4117, June 4,\n2007, at 2 (on file with author).\n\n4 Letter from Kathleen Elliott, Village Attorney, Robbins Schwartz, to Matt Hartman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (September 5, 2018), at 1.\n\nparticipate in the meeting by audio conference, it appears that the Board could have requested\nthat Trustee Carballo hang up his phone or could have disconnected both Trustee Carballo and\nTrustee Mandel and arranged for Trustee Mandel to rejoin the audio conference with the Board.\nBecause Trustee Carballo continued to remain on the audio conference with\n\nTrustee Mandel and the members of the Board who were physically present, he was able to\n\ninterrupt the Board later in the meeting to ask whether he was permitted to participate publicly at\n\nthe nieeting. The Board entertained and approved a motion to allow Trustee Carballo to make\ncomments as a member of the public. Trustee Cafballo subsequently participated through the\n\nBoard member only audio connection during public comment periods and made multiple\nadditional requests to comment throughout the meleting. Because Trustee Carballo is, in fact, an\n\nelected official and Board member, and not a member of the public during Board meetings, he\nshould not have been allowed to participate electronically during the public comment portion of\n\nthe meeting. By doing so Trustee Carballo was improperly attending the meeting remotely,\nnotwithstanding that it was clear he was not eligible to attend under the circumstances of his\nabsence.\n\nAlthough the Board attempted to limit Trustee Carballo's comments at the\n\nmeeting to the same length of comments that a member of the public who was present at the\n\nmeeting would be allowed to make and did not adow him to vote, OMA does not distinguish\nbetween a member of the public body attending the meeting by other means as a member of the\n\npublic body and as a member of the public. Instead, OMA provides only for a member of the\npublic body to attend a meeting by other means pursuant to section 7 of OMA. Therefore, the\nBoard's vote to allow Trustee Carballo to participate in the meeting as a member of the public\ninstead of as a member of the Board is a distinction that is not supported by OMA. Moreover,\n\nTrustee Carballo's direct connection to the Board hat allowed him to participate in the meeting\nutilized the audio conference equipment set up byfthe Board for the exclusive use of members of\n\nthe Board who were not physically present and approved to attend the meeting. His participation\nin the meeting after the Board declined to approv his request to attend electronically constituted\nattendance at the meeting. It is undisputed that T ustee Carballo was ineligible to attend the\n\nmeeting by audio conference. Thus, the Board viplated sections 7(a) and 7(c) of OMA by\n\nallowing Trustee Carballo to attend its July 23, 2018, meeting remotely.\nPublic Comment by a Member of th Public not in Physical Attendance\nAs noted above, the policy of OMA is to guarantee the right of all individuals to\nattend all meetings of public bodies where business is discussed or acted upon: See 5 ILCS\n\n120/ 1 (West 2016). As part of the right to attend irieetings of public bodies, section 2. 06(g) of\nOMA (5 ILCS 120/ 2. 06(g) (West 2016)) provides that \"[ a] ny person shall be permitted an\nopportunity to address\n\npublic\n\nbody.\" The intention of section 2. 06(g) of OMA is provide individuals who attend a meeting of\na public body the right to address the officials of that public body under the rules established by\nthe public\n\nbody. The word \" attend\" is defined as Ito be present at: go to\n\na meeting> <—\n\ncollege>[. j\" Webster's Third New International Dictionary (1993), at 140. Thus, in order \" to\nattend\" a meeting of a public body, a person must be present at or go to the location of the\nmeeting.\n\nalleged that the Board Violated OMA because it did not permit him to\nprovide public comment at the July 23, 2018, meeting.\n\nacknowledged that he did not\n\nphysically attend the meeting but stated he was streaming the meeting remotely. Although\n\nsection 7 of OMA provides a mechanism for a member of a public body to attend and participate\n\nin a meeting by means other than physical presenee, OMA does not provide a similar opportunity\nfor members of the public to attend a meeting by means other than physical presence. Although\n\na public body may elect to allow public comment rom individuals who are not physically\npresent at the meeting, the Board's established an\n\nrecorded rules do not provide for public\n\ncomment from individuals who are not physically present. Further, no provision of OMA\n\nrequires the Board to do so. Because only individ als who attend the meeting have the right to\naddress public officials and because\ndid not attend the meeting, the Board did not\nviolate section 2. 06(g) of OMA at its July 23, 2018, meeting when it did not provide\nwith an opportunity to provide public comment in accordance with its established and recorded\nrules.\n\nThere are no means by which the Board can remedy its violation of sections 7(a)\nand 7(c) of OMA when it allowed Trustee Carballo to continue to attend and participate in the\nJuly 23, 2018, meeting. With respect to the Board's violation of sections 7(a) and 7(c), however,\nsection 7 provides that \"[ a] majority of the public body may allow a member to attend a\nmeeting[.]\"\n\nThese violations can be avoided in thf future if the Board alters its rules to require a\n\nmajority vote of its membership prior to allowing [ emote attendance rather than permitting such\nattendance unless the Board takes action to deny the request. This office requests that the Board\ncomply with\n\nthe requirements\n\nof sections\n\n7(a), 7(b),\n\nand\n\n7(c)\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Th s letter serves to close this matter. If you have\n\nany questions, please contact me at (217) 782- 9054, mhartman@atg. state. il.us, or the Springfield\naddress on the bottom of the first page of this letter.\n\nVery truly yours,\n\nT HARTMAN\n\nAssiistant Attorney General\nPublic Access Bureau\n54143 o 7 attendance improper 206 pub comment\n\nproper\n\nmun"}
{"id":1274,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-12-19","case_number":null,"request_numbers":["54184"],"title":"Energy Code Advisory Council late on OMA electronic training, no further action warranted","filename":"54184, issued December 19, 2018.pdf","rel_path":null,"word_count":3327,"summary":"The requester alleged that the Capital Development Board's Energy Code Advisory Council violated the Open Meetings Act regarding meeting notice requirements and member training compliance. The PAC determined that while the Council failed to complete mandatory OMA electronic training in a timely manner, no further action was warranted regarding the other allegations.","plain_summary":"A citizen complained that a state advisory council failed to provide proper public notice for meetings and did not follow training rules. The Attorney General's office found that the council was late in completing the required electronic training on the Open Meetings Act, but that no further action was warranted on the other allegations. The office noted the training was eventually completed and closed the matter without imposing any penalty.","holding":"The Energy Code Advisory Council was late to complete the Open Meetings Act's electronic training requirements, but no further action was warranted as to the other allegations.","legal_question":"Did the Energy Code Advisory Council violate the Open Meetings Act by failing to provide adequate public notice for meetings and failing to ensure members completed mandatory electronic training?","disposition":"partial_violation","primary_statute":["5 ILCS 120/1.05","5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Energy Code Advisory Council of the Capital Development Board","requesting_party":"Mr. Darren B. Meyers","pac_outcome":"Partial violation found; closed with no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint concerned the adequacy of public notice for various council meetings and the timely completion of mandatory OMA training by council members.","ocr_status":"ok","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.05/54184, issued December 19, 2018.pdf","sha256":"bce3593fa07523e2fd5fc1cf6f1ad1f69c7434f6489b4c376a80f4295051070c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["OMA training","meeting notice","advisory council","public body compliance"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nDecember 19, 2018\n\nVia electronic mail\n\nMr. Darren B. Meyers, P. E.\nPresident\n\nInternational Energy Conservation Consultants, LLC\n7877 Marquette Drive South\n\n[street address redacted for site publication -- see original PDF]\ndmeyers@ieccode. com\n\nVia electronic mail\n\nMr. Paul S. Kmett, P. E.\n\nDeputy General Counsel\nCapital Development Board\n\n401 South Spring Street\n318 William G. Stratton Building\nSpringfield, Illinois 62706\nPaul. Kmett@illinois. gov\n\nRE: OMA Request for Review —2018 PAC 54184\nDear Mr. Meyers and Mr. Kmett:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nFor the reasons set forth below, the Public Access\n\nBureau has determined that the Energy Code Advisory Council ( Council) of the Capital\nDevelopment Board ( Board) was late to complete OMA's electronic training requirements, but\nthat no further action is warranted as to the other allegations raised by Mr. Darren B. Meyers.\n\nOn July 25, 2018, Mr. Meyers, President of Intemational Energy Conservation\nConsultants, LLC, submitted a Request for Review to the Public Access Bureau alleging that the\n\nBoard and Council had violated OMA in various ways. Specifically, he alleged: ( 1) the Board\nhad posted notice of the Council' s July 16, 2018, meeting on July 9, 2018, rather than \" adequate\n10 or more days)\"; (\n\nnotice (\n\n2) the Council had posted no notice for certain meetings in 2014 and\n\n2015, and had posted between one and 21 business days' notice for 25 other meetings between\n\nFebruary 15, 2012, and July 16, 2018 ( including at least three business days' notice for the\n\n500 South Second Street, Springfield,\n\n601\n\nSouth\n\nIllinois\n\n217) 782- 1090 • TTY: (877) 844- 5461 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n\n62701- 1705 • (\n\nStreet, Chicago, Illinois\n\n60601 • (\n\nUniversity Avenue, Suite 102, Carbondale,\n\nIllinois\n\n100 West Randolph\n\n62901 • (\n\n618) 529- 6400 •\n\nTTY: ( 877)\n\n675- 9339 •\n\nFax: ( 618) 529- 6416\n\nc=)-\n\n\fMr. Darren B. Meyers, P. E.\nMr. Paul S. Kmett, P. E.\nDecember 19, 2018\nPage 2\n\nmeetings held within the previous 60 days); ( 3) it was inconvenient to hold a meeting on July 16,\n\n2018, because many of the parties were in Texas for an industry conference; ( 4) members of the\nCouncil had not completed OMA's electronic training curriculum, nor were they versed in\nRobert' s Rules of Order or the \" Capital Development Board Code Amendment Procedures for\n\nthe Illinois Energy Conservation Code\"; and ( 5) the Board/ Council had not clearly\ncommunicated in the \" Capital Development Board Code Amendment Procedures for the Illinois\n\nEnergy Conservation Code\" that position papers or other additional information could have been\noffered into testimony.' Mr. Meyers attached correspondence from the Council' s e- mail list\nconcerning Council meetings and a copy of the \" Capital Development Board Code Amendment\nProcedures for the Illinois Energy Conservation Code.\"\nThis office determined that further action was warranted only as to whether all of\n\nthe members of the Council had completed OMA' s electronic training requirements. On August\n27, 2018, this office sent a copy of the Request for Review to a Board attorney charged with\n\nadvising the Council and asked for copies of the certificates of completion of the OMA\nelectronic training for all of the members of the Council, together with a written explanation as\n\nto whether the Council members took the training within the time periods specified in section\n1. 05\n\nof\n\nOMA ( 5 ILCS 120/ 1. 05 ( West 2016)).\n\nOn September 4, 2018, the Council provided this\n\noffice with certificates of completion for all twelve of its members and confirmed that they had\ncompleted the OMA electronic training curriculum.\n\nOn September 5, 2018, this office forwarded a copy of the Council' s response to\nMr. Meyers. On September 6, 2018, Mr. Meyers submitted a reply. On September 14, 2018,\nMr. Meyers submitted a supplemental\n\nreply.\nDISCUSSION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nAs an initial matter, the Public Access Counselor' s authority to resolve disputes is\nlimited to alleged violations of OMA and the Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 1\net seq. ( West\n\n2016)).\n\nSee 15 ILCS 205/ 7( c)( 3) ( West 2016). Accordingly, this office does not\n\nhave the authority to review alleged violations of other statutes, rules, or regulations, such as\nRobert' s Rules of Order or a State agency' s adherence to its code amendment procedures.\nLetter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\nLLC, to Sara[ h] Pratt, Public\n\nAccess\n\nCounselor, Office\n\nof\n\nAttorney General ( July 24, 2018),\n\nat\n\n2- 4.\n\n\fMr. Darren B. Meyers, P. E.\nMr. Paul S. Kmett, P. E.\nDecember 19, 2018\nPage 3\n\nMeeting Notice\nWith respect to Mr. Meyers' allegations other than his claim that members of the\n\nCouncil had not completed the OMA electronic training curriculum, section 3. 5( a) of OMA ( 5\nILCS 120/ 3. 5( a) ( West 2016)) provides:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60 -day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\n\ndiligence, the request for review may be made within 60 days\nof the discovery of the alleged violation. The request for review\nmust be in writing, must be signed by the requester, and must\ninclude a summary of the facts supporting the allegation.\nEmphasis added.)\n\nSection 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2016)) generally requires a\n\npublic body to post notice of any regular or special meeting at least 48 hours in advance of the\nstart of the meeting. Accordingly, this office determined that no further action was warranted as\nto Mr. Meyers' allegation that the Council had provided three or more business days' notice for\nthe meetings held within the 60 days prior to the submission of his Request for Review.\n\nMr. Meyers replied to that decision by arguing:\nI] n accordance with ( 5 ILCS 120/ 2. 02), the [ Council] has not nor\n\nsic] ever prepared or made available a schedule of all its regular\n\nmeetings at the beginning of any calendar of fiscal year, much less\ncalendar years 2017 or 2018 or Illinois State fiscal years 2016- 17,\n\n2017- 18, a violation of OMA and nullifying any claim to 48 hours'\nnotice.\n\nThereby, and in accordance with ( 5 ILCS 120/ 2. 03),\nannouncements of regular meeting dates require at least ten ( 10)\ndays' notice;\n\nand publication\n\nin a newspaper\n\nof general\n\ncirculation\n\n\fMr. Darren B. Meyers, P. E.\nMr. Paul S. Kmett, P. E.\nDecember\n\n19, 2018\n\nPage 4\n\nin the area in which such body functions ( i. e., the State of Illinois,\n\n2015 Pop. 12, 859, 995). 121\nMr. Meyers claimed that the Council violated OMA in connection with its May 15, 2018, June\n20, 2018, June 28, 2018, and July 16, 2018, meetings by not providing at least 10 days' notice.\nSection 2. 02( a) of OMA provides that \"[ e] very public body shall give public\n\nnotice of the schedule of regular meetings at the beginning of each calendar or fiscal year and\nshall state the regular dates, times, and places of such meetings.\"\n\nSection 2. 03 of OMA ( 5 ILCS\n\n120/ 2. 03 ( West 2016)) further provides that \"[ i] n addition to the notice required by Section 2. 02,\n\neach body subject to this Act must, at the beginning of each calendar or fiscal year, prepare and\nmake available a schedule of all its regular meetings for such calendar or fiscal year, listing the\ntimes and places of such meetings.\" In construing these provisions, the Public Access Bureau\nhas previously determined:\nUnder the plain language of these provisions, a public body\n\nthat meets regularly and has scheduled regular meetings for the\nyear must make its regular meetings schedule available to the\n\npublic. In contrast, a public body that does not hold regularly scheduled meetings is not required to produce an annual regular\n\nmeeting schedule, as the rationale of providing transparency to the\n\npublic about the plans a public body has made to meet in the future\nis inapplicable when the public body does not meet at regular\nintervals and has not yet decided when it will meet throughout the\n\nyear. Compare 111. Att' y Gen. PAC Req. Rev. Ltr. 26850, issued\nJuly 27, 2015, at 5 (\"[ I] f the meetings of a committee of the Board\nare set in advance at routine intervals throughout the year, the\nBoard must provide\ncommittee\n\nannual\n\nmeetings[]\"),\n\nnotice of the schedule\n\nof such\n\nwith I11. Att'y Gen. PAC Req. Rev. Ltr.\n\n41790, issued June 29, 2016, at 2 ( public body with no present\nplans to meet in the future because of lack of funding had no\nschedule of regular meetings to make available and thus did not\n\nviolate section 2. 03), and I11. Att' y Gen. PAC Req. Rev. Ltr.\n17663, issued December 14, 2011, at 1 (\" If a public body has not,\nor is unable to, establish a schedule of regular meetings at the\n\nbeginning of the calendar year, the absence of a posted annual\n\nregular meeting schedule does not violate the requirements of\n2Letter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\nDeputy Bureau Chief, Public Access [ Bureau] ( September 6, 2018), at 1- 2.\n\nLLC, to Joshua M. Jones,\n\n\fMr. Darren\n\nB. Meyers,\n\nP. E.\n\nMr. Paul S. Kmett, P. E.\nDecember\n\n19, 2018\n\nPage 5\n\nOMA.\").\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 49458, issued\n\nSeptember 13, 2017, at 1- 2.\n\nOn September 17, 2018, an Assistant Attorney General in the Public Access\nBureau telephoned a Board attorney who advises the Council to verify whether the Council holds\nregular meetings throughout the year, or instead meets on an ad hoc basis. The Council' s\n\nattorney confirmed that the Council is not the type of public body that holds regularly -scheduled\nmeetings. Instead, it primarily holds meetings every three years around the time when the\n\nIllinois Energy Conservation Code3 is being updated. This office has not received any\ninformation to the contrary. Rather, Mr. Meyers referenced \" the somewhat ' regular' meetings\nconvened every three years, i4 and provided a list of Council meetings held since February 15,\n2012, which evinces that the Council does not hold meetings at regular intervals throughout the\n\nyear. Therefore, the following language from section 2. 03 of OMA is inapplicable to the\nintermittent Council meetings that are within the scope of this Request for Review: \"\n\nIf a change\n\nis made in regular meeting dates, at least 10 days' notice of such change shall be given by\npublication in a newspaper of general circulation in the area in which such body functions.\" The\nPublic Access Bureau has consistently determined that this ten- day notice requirement applies\n\nonly when a public body is changing its regular meeting dates going forward ( i. e. from the first\nMonday of each month to the first Tuesday of each month), rather than when a single ( special)\nmeeting is scheduled or rescheduled. See e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 21021, issued\nMarch 11, 2013 ( public body not required to provide 10 days' notice by publication for a special\nmeeting). Mr. Meyers' claim that the Council was required to provide at least 10 days' advance\nnotice of its May 15, 2018, June 20, 2018, June 28, 2018, and July 16, 2018, meetings is\nunsupported by the language of OMA and thus unavailing.\nAs to the meetings from more than 60 days before Mr. Meyers submitted his\n\nRequest for Review, Mr. Meyers argued that he had not discovered those alleged instances of\n\ninsufficient notice within 60 days after they occurred despite utilizing reasonable diligence; he\nstated that he had discovered those alleged deficiencies \" upon reviewing the history of\" Council\n\nmeetings. 5 However, he provided no information supporting the assertion that he utilized\nreasonable diligence in connection with those claims, such as checking for the posting of\nagendas around the times that those meetings were held. Therefore, his allegations concerning\n371 III. Adm. Code § 600. 100 et seq. ( 2018), last amended at 40 111. Reg. 2754, effective January\n20, 2016.\n\n4E -mail from Darren B. Meyers, P. E., CEM, REP, BPI- BA/ EP, President, Architectural\n\nEngineering, International Energy Conservation Consultants, LLC, to Joshua [ Jones] ( September 17, 2018).\n5E -mail from Darren B. Meyers, P. E., CEM, REP, BPI- BA/ EP, President, Architectural\n\nEngineering, International Energy Conservation Consultants, LLC, to Sara[ h] Pratt, Public Access Counselor, Office\nof\n\nAttomey General ( July 24, 2018).\n\n\fMr. Darren B. Meyers, P. E.\nMr. Paul S. Kmett, P. E.\nDecember 19, 2018\nPage 6\n\nthose meetings are untimely, and this office lacks the authority to review them under section\n3. 5( a) of OMA.\n\nConvenience of the July 16, 2018, Meeting Date\nSection 2. 01 of OMA ( 5 ILCS 120/ 2. 01 ( West 2016)) provides, in relevant part:\n\nAll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" OMA does not define what is \" convenient.\"\n\nUndefined\n\nstatutory terms must be given their plain and ordinary meaning. Exelon Corp. v. Dep' t of\nRevenue, 234 Ill. 2d 266, 275 ( 2009) ( finding that where a statute fails to specifically define a\nword, a court may use a dictionary to determine the word' s plain and ordinary meaning).\nConvenient' means ' suited to a personal comfort or to easy performance' or ' affording\n\nGerwin v. Livingston Co. Board, 345 Ill. App. 3d 352, 361 ( 4th\nAlthough\ns Collegiate Dictionary 252 ( 10th ed. 2000)).\nthe court in Gerwin addressed the issue of whether a meeting place ( a small room) rather than a\naccommodation\n\nor advantage.\"'\n\nDist. 2003) ( quoting Merriam - Webster'\n\nmeeting time was convenient, the term \" convenient\" in section 2. 01 modifies both \" times\" and\nplaces.\" \"\n\nOpen\" and \" convenient\" are not synonymous under the Act; accordingly, \"[ a] meeting\n\ncan be open in the sense that no one is prohibited from attending it, but it can be held in such an\nill-suited, unaccommodating, unadvantageous place that members of the public, as a practical\n\nmatter, would be deterred from attending it.\" Gerwin, 345 I11. App. 3d at 361. To the same\nextent, a meeting can be held at such an unaccommodating, unadvantageous time that the public\n\nwould be unreasonably deterred from attending it. The concept of public convenience implies a\nrule of reasonableness,\n\nnot ' absolute\n\naccessibility'\n\nbut ' reasonable accessibility.\"'\n\nGerwin, 345\n\nIll. App. 3d at 362 ( quoting State ex reL Badke v. Village Board ofthe Village of Greendale, 173\nWis. 2d 553, 579, 494 N.W. 2d 408, 418 ( Wis. 1993)).\n\nMr. Meyers alleged that the July 16, 2018, meeting was not scheduled for a\nconvenient time because \" several, if not many, of the parties identified on the [ Board' s] e- mail\n\nmeeting announcement would be\" attending a conference on energy codes in Texas from July 15,\n2018, through July 17, 2018. 6 Although the information Mr. Meyers provided to this office\nsuggests that the July 16, 2018, meeting time was inconvenient for at least some individuals who\nwished to attend, the e- mails Mr. Meyers provided to this office do not indicate that the timing of\n\nthe meeting was unreasonable for the public in general. The meeting was scheduled for 10: 00\na. m. to noon on a Monday, which was a business day. This office has previously determined that\n\na meeting at 10: 00 a.m. on a business day was not held at an unreasonable time. I11. Att' y Gen.\nPAC Req. Rev. Ltr. 38389, issued June 19, 2017, at 5. Under the specific circumstances of this\n\n6Letter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\nLLC, to Sara[ hl Pratt, Public Access Counselor,\n\nOffice\n\nof\n\nAttorney General ( July 24, 2018), at 2- 4.\n\n\fMr. Darren B. Meyers, P. E.\nMr. Paul S. Kmett, P. E.\nDecember 19, 2018\nPage 7\n\nmatter, the facts Mr. Meyers has alleged are insufficient to conclude that the July 16, 2018,\n\nmeeting was held at an unreasonable time.\nOMA Training\nSection 1. 05( b) of OMA ( 5 ILCS 120/ 1. 05( b) ( West 2016)) sets forth the\nrequirements for members of public bodies to complete the electronic training program\n\ndeveloped by the Public Access Counselor:\nExcept as otherwise provided in this Section, each elected\n\nor appointed member of a public body subject to this Act who\nbecomes such a member after the effective date of this amendatory\nAct of the 97th General Assembly shall successfully complete the\n\nelectronic training curriculum developed and administered by the\nPublic Access Counselor.\n\nFor these members, the training must be\n\ncompleted not later than the 90th day after the date the member:\n1)\n\ntakes the oath of office, if the member is required to\ntake an oath of office to assume the person' s duties\n\nas a member of the public body; or\n2)\n\notherwise\n\nassumes\n\nresponsibilities\n\nas a member\n\nof\n\nthe public body, if the member is not required to\ntake an oath of office to assume the person' s duties\n\nas a member of the governmental body.\nEach member successfully completing the electronic\n\ntraining curriculum shall file a copy of the certificate of completion\nwith the public body.\n\nThe failure of one or more members of a public body to\n\ncomplete the training required by this Section does not affect\n\nthe validity of an action taken by the public body. ( Emphasis\nadded.)\n\nIt is undisputed that most of the members of the Council had not completed the\n\nOMA electronic training curriculum at the time that Mr. Meyers submitted his Request for\nReview,\n\ndespite the fact that most of those members had served\n\non\n\nthe Council\n\nfor years.\n\n\fr.Darren B. Meyers, P. E.\nMr. Paul S. Kmett,\n\nP. E.\n\nDecember 19, 2018\nPage 8\n\nAccordingly, the Council failed to complete the OMA electronic training requirement in a timely\n\nmanner. By its plan language, however, section 1. 05 of OMA does not invalidate any Council\nactions taken before all of the members had completed the training. This office cautions the\n\nCouncil to ensure that in the future, any new members who have not previously completed the\nOMA electronic training curriculum as a member of any other public body complete the\ncurriculum within 90 days after taking the oath of office or, if no oath is required, otherwise\n\nassuming the responsibilities of a member of the Council.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me at ( 312) 814- 8413, jjones@atg. state. il.us, or the Chicago\naddress on the first page of this letter.\n\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n54184\n\n0\n\n105 training incomplete complete\n\nsa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A council's meeting notices and member OMA training","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-54184/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nDecember 19, 2018\n\nVia electronic mail\n\nMr. Darren B. Meyers, P. E.\nPresident\n\nInternational Energy Conservation Consultants, LLC\n7877 Marquette Drive South\n\n[street address redacted for site publication -- see original PDF]\ndmeyers@ieccode. com\n\nVia electronic mail\n\nMr. Paul S. Kmett, P. E.\n\nDeputy General Counsel\nCapital Development Board\n\n401 South Spring Street\n318 William G. Stratton Building\nSpringfield, Illinois 62706\nPaul. Kmett@illinois. gov\n\nRE: OMA Request for Review —2018 PAC 54184\nDear Mr. Meyers and Mr. Kmett:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nFor the reasons set forth below, the Public Access\n\nBureau has determined that the Energy Code Advisory Council (Council) of the Capital\nDevelopment Board (Board) was late to complete OMA's electronic training requirements, but\nthat no further action is warranted as to the other allegations raised by Mr. Darren B. Meyers.\n\nOn July 25, 2018, Mr. Meyers, President of Intemational Energy Conservation\nConsultants, LLC, submitted a Request for Review to the Public Access Bureau alleging that the\n\nBoard and Council had violated OMA in various ways. Specifically, he alleged: (1) the Board\nhad posted notice of the Council's July 16, 2018, meeting on July 9, 2018, rather than \" adequate\n10 or more days)\"; (notice (2) the Council had posted no notice for certain meetings in 2014 and\n\n2015, and had posted between one and 21 business days' notice for 25 other meetings between\n\nFebruary 15, 2012, and July 16, 2018 (including at least three business days' notice for the\n\nmeetings held within the previous 60 days); (3) it was inconvenient to hold a meeting on July 16,\n\n2018, because many of the parties were in Texas for an industry conference; (4) members of the\nCouncil had not completed OMA's electronic training curriculum, nor were they versed in\nRobert's Rules of Order or the \" Capital Development Board Code Amendment Procedures for\n\nthe Illinois Energy Conservation Code\"; and (5) the Board/ Council had not clearly\ncommunicated in the \" Capital Development Board Code Amendment Procedures for the Illinois\n\nEnergy Conservation Code\" that position papers or other additional information could have been\noffered into testimony.' Mr. Meyers attached correspondence from the Council's e- mail list\nconcerning Council meetings and a copy of the \" Capital Development Board Code Amendment\nProcedures for the Illinois Energy Conservation Code.\"\nThis office determined that further action was warranted only as to whether all of\n\nthe members of the Council had completed OMA's electronic training requirements. On August\n27, 2018, this office sent a copy of the Request for Review to a Board attorney charged with\n\nadvising the Council and asked for copies of the certificates of completion of the OMA\nelectronic training for all of the members of the Council, together with a written explanation as\n\nto whether the Council members took the training within the time periods specified in section\n1. 05\n\nof\n\nOMA (5 ILCS 120/ 1. 05 (West 2016)).\n\nOn September 4, 2018, the Council provided this\n\noffice with certificates of completion for all twelve of its members and confirmed that they had\ncompleted the OMA electronic training curriculum.\n\nOn September 5, 2018, this office forwarded a copy of the Council's response to\nMr. Meyers. On September 6, 2018, Mr. Meyers submitted a reply. On September 14, 2018,\nMr. Meyers submitted a supplemental\n\nreply.\nDISCUSSION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\nlimited to alleged violations of OMA and the Freedom of Information Act (FOIA) (5 ILCS 140/ 1\net seq. (West\n\n2016)).\n\nSee 15 ILCS 205/ 7(c)(3) (West 2016). Accordingly, this office does not\n\nhave the authority to review alleged violations of other statutes, rules, or regulations, such as\nRobert's Rules of Order or a State agency's adherence to its code amendment procedures.\nLetter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\nLLC, to Sara[ h] Pratt, Public\n\nAccess\n\nCounselor, Office\n\nMeeting Notice\nWith respect to Mr. Meyers' allegations other than his claim that members of the\n\nCouncil had not completed the OMA electronic training curriculum, section 3. 5(a) of OMA (5\nILCS 120/ 3. 5(a) (West 2016)) provides:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60 -day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\n\ndiligence, the request for review may be made within 60 days\nof the discovery of the alleged violation. The request for review\nmust be in writing, must be signed by the requester, and must\ninclude a summary of the facts supporting the allegation.\nEmphasis added.)\n\nSection 2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2016)) generally requires a\n\npublic body to post notice of any regular or special meeting at least 48 hours in advance of the\nstart of the meeting. Accordingly, this office determined that no further action was warranted as\nto Mr. Meyers' allegation that the Council had provided three or more business days' notice for\nthe meetings held within the 60 days prior to the submission of his Request for Review.\n\nMr. Meyers replied to that decision by arguing:\nI] n accordance with (5 ILCS 120/ 2. 02), the [ Council] has not nor\n\nsic] ever prepared or made available a schedule of all its regular\n\nmeetings at the beginning of any calendar of fiscal year, much less\ncalendar years 2017 or 2018 or Illinois State fiscal years 2016- 17,\n\n2017- 18, a violation of OMA and nullifying any claim to 48 hours'\nnotice.\n\nThereby, and in accordance with (5 ILCS 120/ 2. 03),\nannouncements of regular meeting dates require at least ten (10)\ndays' notice;\n\nin the area in which such body functions (i. e., the State of Illinois,\n\n2015 Pop. 12, 859, 995). 121\nMr. Meyers claimed that the Council violated OMA in connection with its May 15, 2018, June\n20, 2018, June 28, 2018, and July 16, 2018, meetings by not providing at least 10 days' notice.\nSection 2. 02(a) of OMA provides that \"[ e] very public body shall give public\n\nnotice of the schedule of regular meetings at the beginning of each calendar or fiscal year and\nshall state the regular dates, times, and places of such meetings.\"\n\nSection 2. 03 of OMA (5 ILCS\n\n120/ 2. 03 (West 2016)) further provides that \"[ i] n addition to the notice required by Section 2. 02,\n\neach body subject to this Act must, at the beginning of each calendar or fiscal year, prepare and\nmake available a schedule of all its regular meetings for such calendar or fiscal year, listing the\ntimes and places of such meetings.\" In construing these provisions, the Public Access Bureau\nhas previously determined:\nUnder the plain language of these provisions, a public body\n\nthat meets regularly and has scheduled regular meetings for the\nyear must make its regular meetings schedule available to the\n\npublic. In contrast, a public body that does not hold regularly scheduled meetings is not required to produce an annual regular\n\nmeeting schedule, as the rationale of providing transparency to the\n\npublic about the plans a public body has made to meet in the future\nis inapplicable when the public body does not meet at regular\nintervals and has not yet decided when it will meet throughout the\n\nyear. Compare 111. Att' y Gen. PAC Req. Rev. Ltr. 26850, issued\nJuly 27, 2015, at 5 (\"[ I] f the meetings of a committee of the Board\nare set in advance at routine intervals throughout the year, the\nBoard must provide\ncommittee\n\nannual\n\nmeetings[]\"),\n\nnotice of the schedule\n\nof such\n\nwith I11. Att'y Gen. PAC Req. Rev. Ltr.\n\n41790, issued June 29, 2016, at 2 (public body with no present\nplans to meet in the future because of lack of funding had no\nschedule of regular meetings to make available and thus did not\n\nviolate section 2. 03), and I11. Att' y Gen. PAC Req. Rev. Ltr.\n17663, issued December 14, 2011, at 1 (\" If a public body has not,\nor is unable to, establish a schedule of regular meetings at the\n\nbeginning of the calendar year, the absence of a posted annual\n\nregular meeting schedule does not violate the requirements of\n2 Letter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\n\nOMA.\").\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 49458, issued\n\nSeptember 13, 2017, at 1- 2.\n\nOn September 17, 2018, an Assistant Attorney General in the Public Access\nBureau telephoned a Board attorney who advises the Council to verify whether the Council holds\nregular meetings throughout the year, or instead meets on an ad hoc basis. The Council's\n\nattorney confirmed that the Council is not the type of public body that holds regularly -scheduled\nmeetings. Instead, it primarily holds meetings every three years around the time when the\n\nIllinois Energy Conservation Code3 is being updated. This office has not received any\ninformation to the contrary. Rather, Mr. Meyers referenced \" the somewhat ' regular' meetings\nconvened every three years, i4 and provided a list of Council meetings held since February 15,\n2012, which evinces that the Council does not hold meetings at regular intervals throughout the\n\nyear. Therefore, the following language from section 2. 03 of OMA is inapplicable to the\nintermittent Council meetings that are within the scope of this Request for Review: \"\n\nIf a change\n\nis made in regular meeting dates, at least 10 days' notice of such change shall be given by\npublication in a newspaper of general circulation in the area in which such body functions.\" The\nPublic Access Bureau has consistently determined that this ten- day notice requirement applies\n\nonly when a public body is changing its regular meeting dates going forward (i. e. from the first\nMonday of each month to the first Tuesday of each month), rather than when a single (special)\nmeeting is scheduled or rescheduled. See e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 21021, issued\nMarch 11, 2013 (public body not required to provide 10 days' notice by publication for a special\nmeeting). Mr. Meyers' claim that the Council was required to provide at least 10 days' advance\nnotice of its May 15, 2018, June 20, 2018, June 28, 2018, and July 16, 2018, meetings is\nunsupported by the language of OMA and thus unavailing.\nAs to the meetings from more than 60 days before Mr. Meyers submitted his\n\nRequest for Review, Mr. Meyers argued that he had not discovered those alleged instances of\n\ninsufficient notice within 60 days after they occurred despite utilizing reasonable diligence; he\nstated that he had discovered those alleged deficiencies \" upon reviewing the history of\" Council\n\nmeetings. 5 However, he provided no information supporting the assertion that he utilized\nreasonable diligence in connection with those claims, such as checking for the posting of\nagendas around the times that those meetings were held. Therefore, his allegations concerning\n371 III. Adm. Code § 600. 100 et seq. (2018), last amended at 40 111. Reg. 2754, effective January\n20, 2016.\n\n4E -mail from Darren B. Meyers, P. E., CEM, REP, BPI- BA/ EP, President, Architectural\n\nEngineering, International Energy Conservation Consultants, LLC, to Joshua [ Jones] (September 17, 2018).\n5E -mail from Darren B. Meyers, P. E., CEM, REP, BPI- BA/ EP, President, Architectural\n\nEngineering, International Energy Conservation Consultants, LLC, to Sara[ h] Pratt, Public Access Counselor, Office\n\nthose meetings are untimely, and this office lacks the authority to review them under section\n3. 5(a) of OMA.\n\nConvenience of the July 16, 2018, Meeting Date\nSection 2. 01 of OMA (5 ILCS 120/ 2. 01 (West 2016)) provides, in relevant part:\n\nAll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" OMA does not define what is \" convenient.\"\n\nUndefined\n\nstatutory terms must be given their plain and ordinary meaning. Exelon Corp. v. Dep' t of\nRevenue, 234 Ill. 2d 266, 275 (2009) (finding that where a statute fails to specifically define a\nword, a court may use a dictionary to determine the word's plain and ordinary meaning).\nConvenient' means ' suited to a personal comfort or to easy performance' or ' affording\n\nGerwin v. Livingston Co. Board, 345 Ill. App. 3d 352, 361 (4th\nAlthough\ns Collegiate Dictionary 252 (10th ed. 2000)).\nthe court in Gerwin addressed the issue of whether a meeting place (a small room) rather than a\naccommodation\n\nor advantage.\"'\n\nDist. 2003) (quoting Merriam - Webster'\n\nmeeting time was convenient, the term \" convenient\" in section 2. 01 modifies both \" times\" and\nplaces.\" \"\n\nOpen\" and \" convenient\" are not synonymous under the Act; accordingly, \"[ a] meeting\n\ncan be open in the sense that no one is prohibited from attending it, but it can be held in such an\nill-suited, unaccommodating, unadvantageous place that members of the public, as a practical\n\nmatter, would be deterred from attending it.\" Gerwin, 345 I11. App. 3d at 361. To the same\nextent, a meeting can be held at such an unaccommodating, unadvantageous time that the public\n\nwould be unreasonably deterred from attending it. The concept of public convenience implies a\nrule of reasonableness,\n\nnot ' absolute\n\naccessibility'\n\nbut ' reasonable accessibility.\"'\n\nGerwin, 345\n\nIll. App. 3d at 362 (quoting State ex reL Badke v. Village Board ofthe Village of Greendale, 173\nWis. 2d 553, 579, 494 N.W. 2d 408, 418 (Wis. 1993)).\n\nMr. Meyers alleged that the July 16, 2018, meeting was not scheduled for a\nconvenient time because \" several, if not many, of the parties identified on the [ Board's] e- mail\n\nmeeting announcement would be\" attending a conference on energy codes in Texas from July 15,\n2018, through July 17, 2018. 6 Although the information Mr. Meyers provided to this office\nsuggests that the July 16, 2018, meeting time was inconvenient for at least some individuals who\nwished to attend, the e- mails Mr. Meyers provided to this office do not indicate that the timing of\n\nthe meeting was unreasonable for the public in general. The meeting was scheduled for 10: 00\na. m. to noon on a Monday, which was a business day. This office has previously determined that\n\na meeting at 10: 00 a.m. on a business day was not held at an unreasonable time. I11. Att' y Gen.\nPAC Req. Rev. Ltr. 38389, issued June 19, 2017, at 5. Under the specific circumstances of this\n\n6 Letter from Darren B. Meyers, P. E., President, International Energy Conservation Consultants,\n\nmatter, the facts Mr. Meyers has alleged are insufficient to conclude that the July 16, 2018,\n\nmeeting was held at an unreasonable time.\nOMA Training\nSection 1. 05(b) of OMA (5 ILCS 120/ 1. 05(b) (West 2016)) sets forth the\nrequirements for members of public bodies to complete the electronic training program\n\ndeveloped by the Public Access Counselor:\nExcept as otherwise provided in this Section, each elected\n\nor appointed member of a public body subject to this Act who\nbecomes such a member after the effective date of this amendatory\nAct of the 97th General Assembly shall successfully complete the\n\nelectronic training curriculum developed and administered by the\nPublic Access Counselor.\n\nFor these members, the training must be\n\ncompleted not later than the 90th day after the date the member:\n1)\n\ntakes the oath of office, if the member is required to\ntake an oath of office to assume the person's duties\n\nas a member of the public body; or\n2)\n\notherwise\n\nassumes\n\nresponsibilities\n\nas a member\n\nof\n\nthe public body, if the member is not required to\ntake an oath of office to assume the person's duties\n\nas a member of the governmental body.\nEach member successfully completing the electronic\n\ntraining curriculum shall file a copy of the certificate of completion\nwith the public body.\n\nThe failure of one or more members of a public body to\n\ncomplete the training required by this Section does not affect\n\nthe validity of an action taken by the public body. (Emphasis\nadded.)\n\nIt is undisputed that most of the members of the Council had not completed the\n\nOMA electronic training curriculum at the time that Mr. Meyers submitted his Request for\nReview,\n\ndespite the fact that most of those members had served\n\nAccordingly, the Council failed to complete the OMA electronic training requirement in a timely\n\nmanner. By its plan language, however, section 1. 05 of OMA does not invalidate any Council\nactions taken before all of the members had completed the training. This office cautions the\n\nCouncil to ensure that in the future, any new members who have not previously completed the\nOMA electronic training curriculum as a member of any other public body complete the\ncurriculum within 90 days after taking the oath of office or, if no oath is required, otherwise\n\nassuming the responsibilities of a member of the Council.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me at (312) 814- 8413, jjones@atg. state. il.us, or the Chicago\naddress on the first page of this letter.\n\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n54184\n\n0\n\n105 training incomplete complete\n\nsa"}
{"id":1276,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-02-01","case_number":null,"request_numbers":["54370"],"title":"Winnebago County Board found to have adequate meeting minutes under OMA","filename":"54370, issued February 1, 2019.pdf","rel_path":null,"word_count":1495,"summary":"A requester alleged that the Winnebago County Board's meeting minutes failed to adequately describe the changes made by an ordinance approved during a June 28, 2018, meeting. The PAC determined that the minutes were sufficient under the Open Meetings Act because the Board did not engage in a substantive discussion regarding the ordinance's specific changes.","plain_summary":"A citizen complained that the Winnebago County Board's meeting minutes were too vague about an ordinance they passed. The Attorney General's office reviewed the records and found that because the Board didn't have a long debate about the specific changes, the minutes were legally sufficient. While the Board was cleared of any violation, the PAC encouraged them to provide more detail in future minutes to better inform the public.","holding":"The Winnebago County Board did not violate the Open Meetings Act regarding the adequacy of its meeting minutes.","legal_question":"Whether the Winnebago County Board's meeting minutes satisfied the requirements of section 2.06(a) of the Open Meetings Act regarding the description of actions taken.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Winnebago County Board","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The adequacy of meeting minutes in describing the substance of an ordinance approved by the County Board.","ocr_status":"ok","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_a/54370, issued February 1, 2019.pdf","sha256":"c06219e958fe56e253b7cbeff568be17cac2f993f3dfc1fca52ea2c27856bce8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","county board","transparency","ordinance"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nFebruary 1, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. David J. Kurlinkus\nChief of Staff and Civil Bureau\n\nWinnebago County State' s Attorney' s Office\n400 West State Street, Suite 619\nRockford, Illinois 61101\nstatesattorney@co. winnebago. il. us\n\nRE: OMA Request for Review —2018 PAC 54370\nDear\n\nand Mr. Kurlinkus:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nFor the reasons that follow, the Public Access\n\nAct ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nBureau concludes that the Winnebago County ( County) Board of Trustees' ( Board) approval of\nits June 28, 2018, meeting minutes did not violate the requirements of OMA.\nBACKGROUND\n\nOn August 7, 2018,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the minutes of the Board' s June 28, 2018, meeting did not\n\nadequately describe the changes implemented by an ordinance that was approved at the meeting.\nOn August 25, 2018, this office forwarded a copy of the Request for Review to the Board and\nasked it to provide this office with copies of the agenda and minutes of its June 28, 2018,\n\nmeeting, together with a written response to\n\ncomplaint concerning the adequacy\n\nof the minutes. On August 28, 2018, this office received from the Winnebago County State' s\nAttorney' s Office the requested materials, together with copies of the ordinance at issue and a\n\nsection from the Board' s rules of order. On September 4, 2018, this office forwarded a copy of\n\n500 South Second Street, Springfield, Illinois 62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 217) 785 - 2771 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 •\n\nTTY: ( 312) 814- 3374 •\n\nFax: ( 312) 814- 3806\n\n1001\n\nEast Main, Carbondale,\n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 •\n\nFax: ( 618) 529- 6416\n\n\fMr. David J. Kurlinkus\n\nFebruary 1, 2019\nPage 2\n\nthe Board' s response to\n\nOn October 7, 2018, she e- mailed this office arguing that\n\nthe full text of an ordinance should be disclosed to the public before any meeting in which it is\nconsidered by the Board or any of its committees.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179111. App. 3d\n161,\n\n171 ( 5th Dist. 1989).\n\nAs an initial matter, no provision of OMA requires a public body to post the full\ntext of an ordinance prior to a meeting in which the public body considers and/ or takes final\naction on the ordinance. Further, no provision of OMA requires a public body to publicly post\nthe board packet provided to members of the public body. Rather, section 2. 02( c) of OMA ( 5\n\nILCS 120/ 2. 02( c) ( West 2016)) merely provides: \" Any agenda required under this Section shall\nset forth the general subject matter of any resolution or ordinance that will be the subject of final\nat the meeting.\" (\nEmphasis added.) Thus, although providing the public with the full text\nof an ordinance in advance of a meeting would inform the public of the details of an action the\npublic body is considering taking, a public body is not required to do so.\naction\n\nAs to the sufficiency of the Board' s June 28, 2018, meeting minutes, section\n2. 06( a) of OMA ( 5 ILCS 120/ 2. 06( a) ( West 2016)) provides:\n\nAll public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\n\ntheir closed meetings in the form of an audio or video recording. WWW\nMinutes shall include, but need not be limited to:\n\n3) a summary of discussion on all matters\n\nproposed, deliberated, or decided, and a record of any\nvotes taken. ( Emphasis added.)\n\nAlthough\n\ncomplained that the Board had not posted a video of its June 28. 2018,\n\nmeeting, no provision of OMA requires a public body to make or post a video recording of the open portion of a\nmeeting. A public body is required to record only its closed sessions, and it may keep those recordings confidential.\n5 1LCS\n\n120/ 2. 06( e) ( West 2016).\n\n\fMr. David J. Kurlinkus\n\nFebruary 1, 2019\nPage 3\n\nThe plain language of section 2. 06( a)( 3) of OMA requires only that minutes summarize the\ndiscussion regarding matters proposed, deliberated, or decided.\nThe Board' s June 28, 2018, meeting minutes state, in pertinent part:\n31. Board Member Fiduccia read in for the first reading of an\nOrdinance Amending Chapter 14 of the Winnebago County\nCode ( Animal Services Administrator Definition) to be Laid\nOver.\n\nBoard Member Boomer made a motion to suspend the\n\nrules, seconded by Board Member Webster. Motion was\napproved by a voice vote. ( Board Member Booker and Schultz\nwere absent.) Board Member Fiduccia made a motion to\napprove the Ordinance, seconded by Tassoni. Motion was\napproved by a unanimous vote of all members present?'\nIn its response to this office, the Board correctly asserted that no provision of\n\nOMA required it to include the text of the ordinance in the meeting minutes. The Board also\nnoted that the text of the ordinance had since been posted on the County' s website as part of the\nBoard packet.\n\nThe Board' s June 28, 2018, meeting minutes reflect that the Board read in the\n\nordinance concerning the definition of the Animal Services Administrator position, suspended\nthe rules, and voted to approve the ordinance.\n\nAlthough\n\ncontended that the minutes\n\ndo not describe the changes made by the ordinance, OMA requires that meeting minutes\nsummarize only a public body' s discussions concerning an ordinance it has approved; OMA does\nnot otherwise require meeting minutes to recite the contents of such an ordinance. This office\nhas not received information indicating that the Board discussed in detail the changes to be made\n\nby the ordinance before: voting on the matter. To the contrary, the video recording of the open\nsession of the meeting, posted on the County' s website, reveals no significant back -and -forth\ndiscussion of the contents of the ordinance.\n\nBoard member Dave Fiduccia introduced the\n\nordinance, briefly stating that it would change the definition of \"Animal Services Administrator\"\nin the County Code to provide that the employee holding the position need not be a licensed\nveterinarian.'\n\nAfter the motion to suspend the rules was seconded, Board Chairman Frank\n\n2Winnebago County Board, Meeting, June 28, 2018, Minutes 6.\n3WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp:// www. ustream. tv/recorded/ 115834351 ( last visited December 27, 2018).\n\n4WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp:// www. ustream. tv/ recorded/\n\n115834351,\n\nat\n\n1: 00: 17 ( last visited December\n\n27, 2018).\n\n\fMr. David J. Kurlinkus\n\nFebruary 1, 2019\nPage 4\n\nHaney explained his understanding that there was no State statutory requirement for an animal\nservices administrator to be a licensed veterinarian\n\nand asked a colleague whether that was\n\ncorrect; she replied that although there needs to be a veterinarian on staff to provide medical\n\nadvice under State law, the animal services administrator does not need to be a veterinarian. 5\nThe Board proceeded to pass the motion to suspend the rules, and Chairman Haney asked\nwhether the Board wished to discuss the ordinance; no member of the Board spoke up, and the\n\nordinance passed. 6 Although simply adding the substance of the change ( removing the\nrequirement that the position be held by a licensed veterinarian) would substantially improve the\nquality of the meeting minutes, the Board did not hold a substantive discussion concerning the\nchange made by the ordinance. Therefore, the Board' s June 28, 2018, meeting minutes do not\nviolate section 2. 06( a) of OMA. This office, however, encourages the Board to keep detailed\n\nminutes concerning the actions it takes during meetings in order to keep the public informed as\nto the conduct of its business.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n54370 o 206 minutes proper co\n\n5WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp: I/ www. ustream. ty/ recorded/ 115834351, at 1: 01: 19 ( last visited December 27, 2018).\n\n6WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp:// www. ustream. ty/ recorded/ 115834351,\n\nat\n\n1: 01: 58 ( last visited\n\nDecember 27, 2018).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Meeting minutes describing an approved ordinance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-54370/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nFebruary 1, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. David J. Kurlinkus\nChief of Staff and Civil Bureau\n\nWinnebago County State's Attorney's Office\n400 West State Street, Suite 619\nRockford, Illinois 61101\nstatesattorney@co. winnebago. il. us\n\nRE: OMA Request for Review —2018 PAC 54370\nDear\n\nand Mr. Kurlinkus:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nFor the reasons that follow, the Public Access\n\nAct (OMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nBureau concludes that the Winnebago County (County) Board of Trustees' (Board) approval of\nits June 28, 2018, meeting minutes did not violate the requirements of OMA.\nBACKGROUND\n\nOn August 7, 2018,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the minutes of the Board's June 28, 2018, meeting did not\n\nadequately describe the changes implemented by an ordinance that was approved at the meeting.\nOn August 25, 2018, this office forwarded a copy of the Request for Review to the Board and\nasked it to provide this office with copies of the agenda and minutes of its June 28, 2018,\n\nmeeting, together with a written response to\n\ncomplaint concerning the adequacy\n\nof the minutes. On August 28, 2018, this office received from the Winnebago County State's\nAttorney's Office the requested materials, together with copies of the ordinance at issue and a\n\nsection from the Board's rules of order. On September 4, 2018, this office forwarded a copy of\n\nthe Board's response to\n\nOn October 7, 2018, she e- mailed this office arguing that\n\nthe full text of an ordinance should be disclosed to the public before any meeting in which it is\nconsidered by the Board or any of its committees.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179111. App. 3d\n161,\n\n171 (5th Dist. 1989).\n\nAs an initial matter, no provision of OMA requires a public body to post the full\ntext of an ordinance prior to a meeting in which the public body considers and/ or takes final\naction on the ordinance. Further, no provision of OMA requires a public body to publicly post\nthe board packet provided to members of the public body. Rather, section 2. 02(c) of OMA (5\n\nILCS 120/ 2. 02(c) (West 2016)) merely provides: \" Any agenda required under this Section shall\nset forth the general subject matter of any resolution or ordinance that will be the subject of final\nat the meeting.\" (Emphasis added.) Thus, although providing the public with the full text\nof an ordinance in advance of a meeting would inform the public of the details of an action the\npublic body is considering taking, a public body is not required to do so.\naction\n\nAs to the sufficiency of the Board's June 28, 2018, meeting minutes, section\n2. 06(a) of OMA (5 ILCS 120/ 2. 06(a) (West 2016)) provides:\n\nAll public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\n\ntheir closed meetings in the form of an audio or video recording. WWW\nMinutes shall include, but need not be limited to:\n\n3) a summary of discussion on all matters\n\nproposed, deliberated, or decided, and a record of any\nvotes taken. (Emphasis added.)\n\nAlthough\n\ncomplained that the Board had not posted a video of its June 28. 2018,\n\nmeeting, no provision of OMA requires a public body to make or post a video recording of the open portion of a\nmeeting. A public body is required to record only its closed sessions, and it may keep those recordings confidential.\n\nThe plain language of section 2. 06(a)(3) of OMA requires only that minutes summarize the\ndiscussion regarding matters proposed, deliberated, or decided.\nThe Board's June 28, 2018, meeting minutes state, in pertinent part:\n31. Board Member Fiduccia read in for the first reading of an\nOrdinance Amending Chapter 14 of the Winnebago County\nCode (Animal Services Administrator Definition) to be Laid\nOver.\n\nBoard Member Boomer made a motion to suspend the\n\nrules, seconded by Board Member Webster. Motion was\napproved by a voice vote. (Board Member Booker and Schultz\nwere absent.) Board Member Fiduccia made a motion to\napprove the Ordinance, seconded by Tassoni. Motion was\napproved by a unanimous vote of all members present?'\nIn its response to this office, the Board correctly asserted that no provision of\n\nOMA required it to include the text of the ordinance in the meeting minutes. The Board also\nnoted that the text of the ordinance had since been posted on the County's website as part of the\nBoard packet.\n\nThe Board's June 28, 2018, meeting minutes reflect that the Board read in the\n\nordinance concerning the definition of the Animal Services Administrator position, suspended\nthe rules, and voted to approve the ordinance.\n\nAlthough\n\ncontended that the minutes\n\ndo not describe the changes made by the ordinance, OMA requires that meeting minutes\nsummarize only a public body's discussions concerning an ordinance it has approved; OMA does\nnot otherwise require meeting minutes to recite the contents of such an ordinance. This office\nhas not received information indicating that the Board discussed in detail the changes to be made\n\nby the ordinance before: voting on the matter. To the contrary, the video recording of the open\nsession of the meeting, posted on the County's website, reveals no significant back -and -forth\ndiscussion of the contents of the ordinance.\n\nBoard member Dave Fiduccia introduced the\n\nordinance, briefly stating that it would change the definition of \"Animal Services Administrator\"\nin the County Code to provide that the employee holding the position need not be a licensed\nveterinarian.'\n\nAfter the motion to suspend the rules was seconded, Board Chairman Frank\n\n2 Winnebago County Board, Meeting, June 28, 2018, Minutes 6.\n3 WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp:// www. ustream. tv/recorded/ 115834351 (last visited December 27, 2018).\n\n4 WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\n\nHaney explained his understanding that there was no State statutory requirement for an animal\nservices administrator to be a licensed veterinarian\n\nand asked a colleague whether that was\n\ncorrect; she replied that although there needs to be a veterinarian on staff to provide medical\n\nadvice under State law, the animal services administrator does not need to be a veterinarian. 5\nThe Board proceeded to pass the motion to suspend the rules, and Chairman Haney asked\nwhether the Board wished to discuss the ordinance; no member of the Board spoke up, and the\n\nordinance passed. 6 Although simply adding the substance of the change (removing the\nrequirement that the position be held by a licensed veterinarian) would substantially improve the\nquality of the meeting minutes, the Board did not hold a substantive discussion concerning the\nchange made by the ordinance. Therefore, the Board's June 28, 2018, meeting minutes do not\nviolate section 2. 06(a) of OMA. This office, however, encourages the Board to keep detailed\n\nminutes concerning the actions it takes during meetings in order to keep the public informed as\nto the conduct of its business.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n54370 o 206 minutes proper co\n\n5 WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp: I/ www. ustream. ty/ recorded/ 115834351, at 1: 01: 19 (last visited December 27, 2018).\n\n6 WinCoStream, County Board Meeting 6/ 28/ 18, Ustream,\nhttp:// www. ustream. ty/ recorded/ 115834351,\n\nat\n\n1: 01: 58 (last visited\n\nDecember 27, 2018)."}
{"id":1277,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-03-07","case_number":null,"request_numbers":["55379"],"title":"Jersey County Board Personnel Committee violated OMA by inaccessible meeting and no closed session recording","filename":"55379, issued March 7, 2019.pdf","rel_path":null,"word_count":2138,"summary":"The PAC determined that the Jersey County Board's Personnel Committee violated the Open Meetings Act by holding a meeting at an inconvenient, non-public location and failing to create a verbatim recording of a closed session.","plain_summary":"A reporter complained that a county committee held a meeting in a location not open to the public and failed to record a closed-door session. The Attorney General's office agreed, finding that the committee broke the law by hiding the meeting location and failing to keep the required audio or video record of the closed session. The committee was advised to ensure future compliance with these transparency requirements.","holding":"The Committee violated the Open Meetings Act by failing to provide public access to its meeting location and failing to record its closed session.","legal_question":"Did the public body violate the Open Meetings Act by holding a meeting at an inaccessible location and failing to create a verbatim recording of a closed session?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.01","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Jersey County Board Personnel Committee","requesting_party":"Mr. Michael Weaver","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The committee held a meeting at an undisclosed location and failed to record the closed session portion of that meeting.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/55379, issued March 7, 2019.pdf","sha256":"fd59864333a387d6e8b863ad076769674f1c905c7b5e8bac2db530b061673a36","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting location","verbatim recording","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 7, 2019\n\nVia electronic\n\nmail\n\nMr. Michael Weaver\nFounder and Publisher\nGreat Rivers Media\nmichael@greatriversmedia.\n\nVia electronic\n\ncom\n\nmail\n\nThe Honorable Benjamin L. Goetten\n\nJersey County State's Attorney\n[street address redacted for site publication -- see original PDF]\nbgoetten@gmail. com\n\nRE: OMA Request for Review —2018 PAC 55379\n\nDear Mr. Weaver and State' s Attorney Goetten:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons explained below, the Public Access\n\nBureau concludes that the Personnel Committee of the Jersey County Board ( Board) held a\nmeeting on August 20, 2018, at a location that was not convenient and open to the public, and\nfailed to create a verbatim recording of its closed session meeting held that same day.\nBACKGROUND\n\nOn October 19, 2018, this office received Mr. Michael Weaver' s Request for\n\nReview alleging that the Committee held a meeting August 20, 2018, that was not open to the\npublic and that took place in a different location than the one listed on the agenda. Mr. Weaver\n\nalso alleges that the Committee held a closed session during that meeting and did not create a\nverbatim recording of the closed session. On November 2, 2018, this office sent a copy of the\nRequest for Review to the Committee and requested that the Committee or its representative\nprovide a written response to the allegations in the Request for Review and to provide certain\n\ninformation and records for this office' s review. On November 14, 2018, the Jersey County\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Michael Weaver\n\nThe Honorable Benjamin L. Goetten\nMarch 7, 2019\nPage 2\n\nState' s Attorney, on behalf of the Committee, provided an answer and the requested materials.\nMr. Weaver replied on November 26, 2018.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 I11. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nClosed Meeting\nSection 2( a) of OMA provides that \"[ alit meetings of public bodies shall be open\nto the public unless excepted in subsection ( c) and closed in accordance with Section 2a.\" 5 ILCS\n\n120/ 2( a) ( West 2016), as amended by Public Acts 100-201, effective August 18, 2017; 100- 465,\neffective August 31, 2017. Section 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2016)) defines\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall,\n\nelectronic\n\nmeans ( such\n\nas, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication\nofj,] * * * for a 5 - member\n\npublic body, a quorum of the members\n\nof a public body held for the purpose of discussing public business.\nIf a gathering of public body members is determined to be a \" meeting,\" then all the requirements\nof OMA apply, including proper posting of notice and an agenda ( 5 ILCS 120/ 2. 02 ( West\n\n2016)), and the holding of the meeting at a specified time and place that is convenient and open\nto the public ( 5 ILCS 120/ 2. 01 ( West 2016)).\nIn his Request for Review, Mr. Weaver asserted that the Committee posted an\n\nagenda for its August 20, 2018, meeting that indicated that the meeting would be held at 6: 00\np.m. in the Jersey County Board Room. Mr. Weaver stated that, prior to the start of the meeting,\nthe Board chairman directed him to leave the meeting room because the meeting was to be held\nin closed session. Mr. Weaver stated that he left the building and waited in his car, and that after\nseveral minutes, the chairman opened the door to the building, motioned to Mr. Weaver, and told\n\nhim that the Committee was starting its open session. Mr. Weaver stated that he then went back\ninto the building and the Board Room, but could not locate the chairman, the other Committee\nmembers, or the meeting. Mr. Weaver stated that he eventually observed the chairman leave the\nBoard office;\n\nthe chairman\n\nnotified\n\nMr. Weaver\n\nthat the Committee\n\nhad just held the open\n\n\fMr. Michael Weaver\n\nThe Honorable Benjamin L. Goetten\nMarch 7, 2019\nPage 3\n\nsession of its meeting in an interior office space and was now convening in closed session, which\nMr. Weaver\n\nwould\n\nnot\n\nbe permitted to attend.\n\nMr. Weaver stated that, \"[ b] y virtue\n\nof the\n\nbuilding design, there was no way to see the interior office or to know that a meeting was taking\nplace\n\nMr. Weaver also alleges that, based on representations of others at the meeting,\n\nthere.\"'\n\nthat no audio recording was made of the proceedings.\nIn response, the Board and the Committee chairman, Mr. Donald Little, asserted\n\nthat the agenda improperly listed the location of the meeting as occurring in the \" auditorium,\"\ninstead of the County Board \" office,\" and that he did not notice the error until meeting time when\nhe found the Committee members, Mr. Weaver, and members of a union bargaining team that\nalso intended to attend the meeting, in the auditorium instead of the office. Chairman Little\nstated that he told Mr. Weaver that the Committee would be holding a closed meeting, and that\n\nMr. Weaver responded by asserting that a closed meeting nevertheless must start in open session.\nChairman Little said he agreed, and that he would hold the Committee' s open session in the\n\nBoard office, but that he needed to discuss a matter with the \" bargaining team\" before beginning,\nand asked Mr. Weaver to leave until the meeting began. Chairman Little stated that when the\nCommittee members relocated from the auditorium to the office, he went to look for Mr.\n\nWeaver, located him outside the building in his vehicle, \" motioned for Weaver to come to the\nBoard office and then waited for him to enter the office in order the start the meeting. Weaver\ndid not\n\ncome\n\nto the opening\n\nsession\n\nof the\n\n2 Chairman Little further\n\nPersonnel Committee[.]\"\n\nasserted that the Committee voted in open session to go into closed session, and after that motion\n\nwas approved, returned to the Auditorium to hold the closed session. Upon his return to the\nAuditorium, Chairman Little stated that he saw Mr. Weaver and informed him that the\nCommittee had held its open session in the office, was now convening closed session, and\n\ntherefore, Mr. Weaver would need to leave. Chairman Little did not directly respond to the\nallegation in the Request for Review that the office in which the meeting was held was an\n\ninterior office\" and that the design of the building made it difficult to see the interior office or\n\nobserve a meeting being held there. Finally, Chairman Little acknowledged that the Committee\ndid not make a verbatim recording of the closed session meeting.\n\nMr. Weaver replied, disputing in part Chairman Little's recitation of the events\n\nthat occurred that evening. Mr. Weaver stated that after Chairman Little motioned for him to\nreturn to the building, he disappeared inside the building before Mr. Weaver could follow him.\nMr. Weaver asserted that \"[ ill was not possible to see where he went because of the angle of the\nOMA -Request for Review by Public Access Counsel ( PAC), from Michael Weaver ( October 19,\n2018).\n\nLetter from Benjamin L. Goetten, Jersey County State' s Attorney, to Leah Bartelt, Assistant\nAttorney\n\nGeneral,\n\nPublic\n\nAccess\n\nBureau ( November\n\n13, 2018), Attachment\n\nat\n\n1.\n\n\fMr. Michael Weaver\n\nThe Honorable Benjamin L. Goetten\nMarch 7, 2019\nPage 4\n\nsun against the glass entrance doors and I assumed he went into the auditorium to open the\n\nmeeting. I walked into the auditorium and only the union side of the meeting was there. They\nadvised that the board members had left but were not sure where they had went to. I then\n\nsearched through the entire building but saw no obvious sign of a meeting anywhere. 3\nThere is no dispute that the Committee held a \" meeting,\" as defined in section\n1. 02 of OMA, on August 20, 2018.\n\nWe note that Mr. Weaver\n\nand Chairman\n\nLittle appear to use\n\ndifferent nomenclature for the room in which the meeting was scheduled to be held. Mr. Weaver\nand the agenda describe the location as the \" Jersey County Board Room,\" while Chairman Little\nreferred to it as the auditorium. Mr. Weaver asserted that the Jersey County Board Room is a\ncorner of the auditorium in which small meetings are routinely held. Based on Chairman Little' s\nresponse, it appears that not only Mr. Weaver, but also the Committee members and union\nrepresentatives, understood the location of the meeting to be the auditorium.\n\nChairman Little asserted that the agenda erroneously listed the location of the\nmeeting and it should have stated that the meeting was to be held in the Board office. However,\n\nupon realizing the error on the agenda, Chairman Little nevertheless convened the meeting in the\nBoard office, instead of the location listed on the agenda. Notably, he did so even though he, the\nother committee members, and Mr. Weaver ( who had already indicated his interest in attending\nthe meeting) were present at the place listed on the agenda, at the date and time at which the\n\nmeeting was scheduled to begin. Chairman Little did not argue that it was necessary to relocate\nthe meeting from the location listed on the agenda to the Board office, and did not state that he\nposted any signs re -directing interested members of the public to the new location. Moreover, he\ndid not contest Mr. Weaver' s allegation that the Board office is an interior office, that a meeting\n\nbeing held in that office would not be visible from the entrance to the building, and that the\n\nBoard routinely held smaller meetings in the section of the auditorium known as the Board room.\nAccordingly, by holding its August 20, 2018, meeting in a location different from that listed on\nthe agenda and in a location that Mr. Weaver was unable to find, the Committee violated sections\n\n2( a) and 2. 01 of OMA by holding a meeting at a place other than the place specified on the\nagenda and at a location that was not convenient and open to the public.\n\nThe meeting minutes from the August 20, 2018, meeting indicate that the meeting\nwas called to order at 6: 08 p.m., the Committee voted to enter closed session, and then entered\n\nclosed session at 6: 09 p.m. Because the Committee did not take final action at the August 20,\n2018, meeting, no remedial action is necessary. However, this office reminds the Committee to\nensure that the notice and agenda of all Committee meetings correctly identify the location of the\nmeeting.\n\n3E - mail from Michael Weaver\n\nto\n\nPublic\n\nAccess ( November\n\n26, 2018).\n\n\fr.\nMichael Weaver\n\nThe Honorable Benjamin L. Goetten\nMarch 7, 2019\nPage 5\n\nClosed Session Recording\n\nAll public bodies are required to \" keep written minutes of all their meetings,\nwhether open or closed, and a verbatim record of all their closed meetings in the form of an\n5 ILCS I20/ 2. 06( a) ( West 2016)). Although this requirement is\naudio or video recording.\"\n\nunambiguous, the Committee admitted that it did not create a verbatim recording of the August\n20, 2018, closed session meeting. Accordingly, the Committee also violated section 2. 06( a) of\nOMA. Although there does not appear to be any action that the Committee can take at this time\n\nto remedy its violation of section 2. 06( a) of OMA, this office requests that the Committee take\nmeasures to ensure that all closed sessions are properly recorded.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6437 or lbartelt@atg. state. il. us. This letter serves to close this file.\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n55379\n\no 2a meeting improper\n\n201 location improper\n\n206a recording improper\n\nco\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A committee's closed-session meeting at an undisclosed location without a recording","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55379/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 7, 2019\n\nVia electronic\n\nmail\n\nMr. Michael Weaver\nFounder and Publisher\nGreat Rivers Media\nmichael@greatriversmedia.\n\nVia electronic\n\ncom\n\nmail\n\nThe Honorable Benjamin L. Goetten\n\nJersey County State's Attorney\n[street address redacted for site publication -- see original PDF]\nbgoetten@gmail. com\n\nRE: OMA Request for Review —2018 PAC 55379\n\nDear Mr. Weaver and State's Attorney Goetten:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)). For the reasons explained below, the Public Access\n\nBureau concludes that the Personnel Committee of the Jersey County Board (Board) held a\nmeeting on August 20, 2018, at a location that was not convenient and open to the public, and\nfailed to create a verbatim recording of its closed session meeting held that same day.\nBACKGROUND\n\nOn October 19, 2018, this office received Mr. Michael Weaver's Request for\n\nReview alleging that the Committee held a meeting August 20, 2018, that was not open to the\npublic and that took place in a different location than the one listed on the agenda. Mr. Weaver\n\nalso alleges that the Committee held a closed session during that meeting and did not create a\nverbatim recording of the closed session. On November 2, 2018, this office sent a copy of the\nRequest for Review to the Committee and requested that the Committee or its representative\nprovide a written response to the allegations in the Request for Review and to provide certain\n\ninformation and records for this office's review. On November 14, 2018, the Jersey County\n\nState's Attorney, on behalf of the Committee, provided an answer and the requested materials.\nMr. Weaver replied on November 26, 2018.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 I11. App. 3d\n161, 171 (5th Dist. 1989).\n\nClosed Meeting\nSection 2(a) of OMA provides that \"[ alit meetings of public bodies shall be open\nto the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" 5 ILCS\n\n120/ 2(a) (West 2016), as amended by Public Acts 100-201, effective August 18, 2017; 100- 465,\neffective August 31, 2017. Section 1. 02 of OMA (5 ILCS 120/ 1. 02 (West 2016)) defines\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall,\n\nelectronic\n\nmeans (such\n\nas, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication\nofj,] * * * for a 5 - member\n\npublic body, a quorum of the members\n\nof a public body held for the purpose of discussing public business.\nIf a gathering of public body members is determined to be a \" meeting,\" then all the requirements\nof OMA apply, including proper posting of notice and an agenda (5 ILCS 120/ 2. 02 (West\n\n2016)), and the holding of the meeting at a specified time and place that is convenient and open\nto the public (5 ILCS 120/ 2. 01 (West 2016)).\nIn his Request for Review, Mr. Weaver asserted that the Committee posted an\n\nagenda for its August 20, 2018, meeting that indicated that the meeting would be held at 6: 00\np.m. in the Jersey County Board Room. Mr. Weaver stated that, prior to the start of the meeting,\nthe Board chairman directed him to leave the meeting room because the meeting was to be held\nin closed session. Mr. Weaver stated that he left the building and waited in his car, and that after\nseveral minutes, the chairman opened the door to the building, motioned to Mr. Weaver, and told\n\nhim that the Committee was starting its open session. Mr. Weaver stated that he then went back\ninto the building and the Board Room, but could not locate the chairman, the other Committee\nmembers, or the meeting. Mr. Weaver stated that he eventually observed the chairman leave the\nBoard office;\n\nthe chairman\n\nsession of its meeting in an interior office space and was now convening in closed session, which\nMr. Weaver\n\nwould\n\nnot\n\nbe permitted to attend.\n\nMr. Weaver stated that, \"[ b] y virtue\n\nof the\n\nbuilding design, there was no way to see the interior office or to know that a meeting was taking\nplace\n\nMr. Weaver also alleges that, based on representations of others at the meeting,\n\nthere.\"'\n\nthat no audio recording was made of the proceedings.\nIn response, the Board and the Committee chairman, Mr. Donald Little, asserted\n\nthat the agenda improperly listed the location of the meeting as occurring in the \" auditorium,\"\ninstead of the County Board \" office,\" and that he did not notice the error until meeting time when\nhe found the Committee members, Mr. Weaver, and members of a union bargaining team that\nalso intended to attend the meeting, in the auditorium instead of the office. Chairman Little\nstated that he told Mr. Weaver that the Committee would be holding a closed meeting, and that\n\nMr. Weaver responded by asserting that a closed meeting nevertheless must start in open session.\nChairman Little said he agreed, and that he would hold the Committee's open session in the\n\nBoard office, but that he needed to discuss a matter with the \" bargaining team\" before beginning,\nand asked Mr. Weaver to leave until the meeting began. Chairman Little stated that when the\nCommittee members relocated from the auditorium to the office, he went to look for Mr.\n\nWeaver, located him outside the building in his vehicle, \" motioned for Weaver to come to the\nBoard office and then waited for him to enter the office in order the start the meeting. Weaver\ndid not\n\ncome\n\nto the opening\n\nsession\n\nof the\n\n2 Chairman Little further\n\nPersonnel Committee[.]\"\n\nasserted that the Committee voted in open session to go into closed session, and after that motion\n\nwas approved, returned to the Auditorium to hold the closed session. Upon his return to the\nAuditorium, Chairman Little stated that he saw Mr. Weaver and informed him that the\nCommittee had held its open session in the office, was now convening closed session, and\n\ntherefore, Mr. Weaver would need to leave. Chairman Little did not directly respond to the\nallegation in the Request for Review that the office in which the meeting was held was an\n\ninterior office\" and that the design of the building made it difficult to see the interior office or\n\nobserve a meeting being held there. Finally, Chairman Little acknowledged that the Committee\ndid not make a verbatim recording of the closed session meeting.\n\nMr. Weaver replied, disputing in part Chairman Little's recitation of the events\n\nthat occurred that evening. Mr. Weaver stated that after Chairman Little motioned for him to\nreturn to the building, he disappeared inside the building before Mr. Weaver could follow him.\nMr. Weaver asserted that \"[ ill was not possible to see where he went because of the angle of the\nOMA -Request for Review by Public Access Counsel (PAC), from Michael Weaver (October 19,\n2018).\n\nLetter from Benjamin L. Goetten, Jersey County State's Attorney, to Leah Bartelt, Assistant\nAttorney\n\nGeneral,\n\nPublic\n\nAccess\n\nsun against the glass entrance doors and I assumed he went into the auditorium to open the\n\nmeeting. I walked into the auditorium and only the union side of the meeting was there. They\nadvised that the board members had left but were not sure where they had went to. I then\n\nsearched through the entire building but saw no obvious sign of a meeting anywhere. 3\nThere is no dispute that the Committee held a \" meeting,\" as defined in section\n1. 02 of OMA, on August 20, 2018.\n\nWe note that Mr. Weaver\n\nand Chairman\n\nLittle appear to use\n\ndifferent nomenclature for the room in which the meeting was scheduled to be held. Mr. Weaver\nand the agenda describe the location as the \" Jersey County Board Room,\" while Chairman Little\nreferred to it as the auditorium. Mr. Weaver asserted that the Jersey County Board Room is a\ncorner of the auditorium in which small meetings are routinely held. Based on Chairman Little's\nresponse, it appears that not only Mr. Weaver, but also the Committee members and union\nrepresentatives, understood the location of the meeting to be the auditorium.\n\nChairman Little asserted that the agenda erroneously listed the location of the\nmeeting and it should have stated that the meeting was to be held in the Board office. However,\n\nupon realizing the error on the agenda, Chairman Little nevertheless convened the meeting in the\nBoard office, instead of the location listed on the agenda. Notably, he did so even though he, the\nother committee members, and Mr. Weaver (who had already indicated his interest in attending\nthe meeting) were present at the place listed on the agenda, at the date and time at which the\n\nmeeting was scheduled to begin. Chairman Little did not argue that it was necessary to relocate\nthe meeting from the location listed on the agenda to the Board office, and did not state that he\nposted any signs re -directing interested members of the public to the new location. Moreover, he\ndid not contest Mr. Weaver's allegation that the Board office is an interior office, that a meeting\n\nbeing held in that office would not be visible from the entrance to the building, and that the\n\nBoard routinely held smaller meetings in the section of the auditorium known as the Board room.\nAccordingly, by holding its August 20, 2018, meeting in a location different from that listed on\nthe agenda and in a location that Mr. Weaver was unable to find, the Committee violated sections\n\n2(a) and 2. 01 of OMA by holding a meeting at a place other than the place specified on the\nagenda and at a location that was not convenient and open to the public.\n\nThe meeting minutes from the August 20, 2018, meeting indicate that the meeting\nwas called to order at 6: 08 p.m., the Committee voted to enter closed session, and then entered\n\nclosed session at 6: 09 p.m. Because the Committee did not take final action at the August 20,\n2018, meeting, no remedial action is necessary. However, this office reminds the Committee to\nensure that the notice and agenda of all Committee meetings correctly identify the location of the\nmeeting.\n\n3E - mail from Michael Weaver\n\nto\n\nClosed Session Recording\n\nAll public bodies are required to \" keep written minutes of all their meetings,\nwhether open or closed, and a verbatim record of all their closed meetings in the form of an\n5 ILCS I20/ 2. 06(a) (West 2016)). Although this requirement is\naudio or video recording.\"\n\nunambiguous, the Committee admitted that it did not create a verbatim recording of the August\n20, 2018, closed session meeting. Accordingly, the Committee also violated section 2. 06(a) of\nOMA. Although there does not appear to be any action that the Committee can take at this time\n\nto remedy its violation of section 2. 06(a) of OMA, this office requests that the Committee take\nmeasures to ensure that all closed sessions are properly recorded.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6437 or lbartelt@atg. state. il. us. This letter serves to close this file.\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n55379\n\no 2a meeting improper\n\n201 location improper\n\n206a recording improper\n\nco"}
{"id":1278,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-10-03","case_number":null,"request_numbers":["55553"],"title":"Sleepy Hollow Board violated Open Meetings Act by voting via email","filename":"55553, issued October 3, 2019.pdf","rel_path":null,"word_count":977,"summary":"A Board member alleged that the Village of Sleepy Hollow Board of Trustees violated the Open Meetings Act by voting on public business via email rather than in an open meeting. The PAC determined that the Board improperly took final action outside of an open meeting, though no further action was required as the votes were later ratified.","plain_summary":"A village board member complained that the board made official decisions by voting through email instead of holding a public meeting. The Attorney General's office agreed that this violated the Open Meetings Act, which requires public business to be conducted openly. Because the board later held a public meeting to officially re-vote on those same issues, the case was closed without further penalty.","holding":"The Board of Trustees of the Village of Sleepy Hollow violated the Open Meetings Act by taking final action on public business through email exchanges.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on public business through a series of email exchanges rather than at an open meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of the Village of Sleepy Hollow","requesting_party":"a member of the Board","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board conducted votes on public business via email exchanges instead of during a public meeting.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/55553, issued October 3, 2019.pdf","sha256":"bb4f039e0c23e1e3b106137c6e1d9644f21a8ce10c6a55f8ba1ef99ccbd515a4","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email voting","open meetings act","public business","final action"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nOctober\n\n3, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Mark Schuster\n\nBazos, Freeman, Schuster &\n\nPope LLC\n\n[street address redacted for site publication -- see original PDF]\nmschuster@bazosfreeman.\n\ncom\n\nRE: OMA Request for Review —2018 PAC 55553\nDear\n\nand Mr. Schuster:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 •ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons stated below, the Public Access\n\nBureau concludes that the Board of Trustees of the Village of Sleepy Hollow ( Board) improperly\ntook final action outside of an open meeting.\nOn October 30, 2018,\n\na member of the Board. submitted\n\na Request for Review alleging that on or about September 5. 2018, the Board violated OMA by\nvoting on three matters of public business through a series of e- mails, rather than at a public\n\nmeeting. On November 9, 2018, this office forwarded a copy of\n\nRequest for\n\nReview to the Board and asked it to provide this office with a detailed written response to\n\nallegations, as well as with copies of the e- mails and any records of the final approval\nof these matters.\n\nOn November 21, 2018, counsel for the Board mailed this office a response as\n\nwell as the requested records.\n\nsubmitted a reply.\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2018). Section 2( e) of OMA\n\n500 South Second Street. Springfield. Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street. Chicago. Illinois 60601 • ( 3 12) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale.\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Mark Schuster\nOctober 3, 2019\nPage 2\n\n5 ILCS 120/ 2( e) ( West 2018)) provides that \"[ n] o final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\n\nother information that will inform the public of the business being conducted.\" While a public\nbody may take a preliminary vote in a closed session, a public body must take all final actions in\nan open meeting. Board of Education of Springfield School District No. 186 v. Attorney General\nof Illinois, 2017 IL 120343, ¶¶\n\n73- 74, 77 N. E. 3d 625, 637 ( 2017).\n\nThe Board does not dispute that it voted on three matters of public business\n\nthrough e- mail communication rather than at an open meeting. The Board asserted that it did not\n\nintend to circumvent OMA, but it had a new Village Clerk who was attempting to pursue matters\nthat were listed on its agenda for its September 4, 2018, meeting. which was cancelled due to a\nlack ofa quorum. The Board stated that it voted by e- mail to approve ( 1) accounts payable, ( 2) a\nrequest by a not- for- profit organization to solicit funds for charity, ( 3) the final version of the\nFall newsletter in order \" to comply with imminent deadlines, including payment of Village\n\npayroll for its employees[ r The Board also confirmed that it ratified each of the e- mail votes\nat its September 17, 2018, open meeting, and provided this office a copy of those minutes.\nreplied that conducting public business by e- mail is an ongoing problem of the Board and\nnot just a one- time occurrence.\n\nWhen a public body finalizes a decision, that final action must be taken openly.\nBenefit Fund of Chicago. 2013 IL App ( 1st)\n122446, ¶ 26, 996 N. E. 2d 664, 974- 75 ( 2013) ( finding board' s written denial of benefits invalid\nbecause the board had circulated the decision for signatures privately rather than voting on it in\nopen session). It appears that the Board took action by e- mail because upcoming deadlines\nrequired the underlying decisions to be implemented before the Board' s next meeting. For\nSee Howe v. Retirement Bd. of Firemen' s Annuity &\n\nexample, the Board' s response to this office stated that payroll had to be approved in order to\n\nmeet September 7, 2018, payroll obligations for Village employees.\n\nBecause those underlying\n\ndecisions took effect before they were ratified at the September 17, 2018, meeting. the Board' s email votes do not merely constitute preliminary votes reflecting a tentative consensus.\nAccordingly, this office concludes that the Council violated OMA by taking final action by\nvoting on public business through e- mail exchanges rather than at an open meeting.\nBecause the Board already voted to ratify each of the votes at its September 17,\n2018, open meeting, no further remedial action is required. This office cautions the Board to\ntake steps to ensure that it votes on matters of public business at an open meeting, rather than\nconducting business through e- mail exchanges or in any other manner outside of an open\nmeeting.\n\nLetter from Mark Schuster, Bazos, Freeman, Schuster & Pope LLC. to Office of the Illinois\nAttorney General, Public Access Bureau, Edie Steinberg ( November 21, 2018). at 2.\n\n\fMr. Mark Schuster\nOctober 3, 2019\nPage 3\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions. you\nmay contact me at ( 312) 814- 5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery\n\nmy yours,\n\nIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n55553\n\no\n\n2e improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Email votes on public business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55553/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nOctober\n\n3, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Mark Schuster\n\nBazos, Freeman, Schuster &\n\nPope LLC\n\n[street address redacted for site publication -- see original PDF]\nmschuster@bazosfreeman.\n\ncom\n\nRE: OMA Request for Review —2018 PAC 55553\nDear\n\nand Mr. Schuster:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 •ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons stated below, the Public Access\n\nBureau concludes that the Board of Trustees of the Village of Sleepy Hollow (Board) improperly\ntook final action outside of an open meeting.\nOn October 30, 2018,\n\na member of the Board. submitted\n\na Request for Review alleging that on or about September 5. 2018, the Board violated OMA by\nvoting on three matters of public business through a series of e- mails, rather than at a public\n\nmeeting. On November 9, 2018, this office forwarded a copy of\n\nRequest for\n\nReview to the Board and asked it to provide this office with a detailed written response to\n\nallegations, as well as with copies of the e- mails and any records of the final approval\nof these matters.\n\nOn November 21, 2018, counsel for the Board mailed this office a response as\n\nwell as the requested records.\n\nsubmitted a reply.\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2018). Section 2(e) of OMA\n\n5 ILCS 120/ 2(e) (West 2018)) provides that \"[ n] o final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\n\nother information that will inform the public of the business being conducted.\" While a public\nbody may take a preliminary vote in a closed session, a public body must take all final actions in\nan open meeting. Board of Education of Springfield School District No. 186 v. Attorney General\nof Illinois, 2017 IL 120343, ¶¶\n\n73- 74, 77 N. E. 3d 625, 637 (2017).\n\nThe Board does not dispute that it voted on three matters of public business\n\nthrough e- mail communication rather than at an open meeting. The Board asserted that it did not\n\nintend to circumvent OMA, but it had a new Village Clerk who was attempting to pursue matters\nthat were listed on its agenda for its September 4, 2018, meeting. which was cancelled due to a\nlack ofa quorum. The Board stated that it voted by e- mail to approve (1) accounts payable, (2) a\nrequest by a not- for- profit organization to solicit funds for charity, (3) the final version of the\nFall newsletter in order \" to comply with imminent deadlines, including payment of Village\n\npayroll for its employees[ r The Board also confirmed that it ratified each of the e- mail votes\nat its September 17, 2018, open meeting, and provided this office a copy of those minutes.\nreplied that conducting public business by e- mail is an ongoing problem of the Board and\nnot just a one- time occurrence.\n\nWhen a public body finalizes a decision, that final action must be taken openly.\nBenefit Fund of Chicago. 2013 IL App (1st)\n122446, ¶ 26, 996 N. E. 2d 664, 974- 75 (2013) (finding board's written denial of benefits invalid\nbecause the board had circulated the decision for signatures privately rather than voting on it in\nopen session). It appears that the Board took action by e- mail because upcoming deadlines\nrequired the underlying decisions to be implemented before the Board's next meeting. For\nSee Howe v. Retirement Bd. of Firemen's Annuity &\n\nexample, the Board's response to this office stated that payroll had to be approved in order to\n\nmeet September 7, 2018, payroll obligations for Village employees.\n\nBecause those underlying\n\ndecisions took effect before they were ratified at the September 17, 2018, meeting. the Board's email votes do not merely constitute preliminary votes reflecting a tentative consensus.\nAccordingly, this office concludes that the Council violated OMA by taking final action by\nvoting on public business through e- mail exchanges rather than at an open meeting.\nBecause the Board already voted to ratify each of the votes at its September 17,\n2018, open meeting, no further remedial action is required. This office cautions the Board to\ntake steps to ensure that it votes on matters of public business at an open meeting, rather than\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions. you\nmay contact me at (312) 814- 5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery\n\nmy yours,\n\nIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n55553\n\no\n\n2e improper mun"}
{"id":1279,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-04","case_number":null,"request_numbers":["55664"],"title":"City of Alton City Council violated OMA 2.02(c) by insufficient meeting notice on annexation ordinances","filename":"55664, issued March 4, 2022.pdf","rel_path":null,"word_count":2555,"summary":"The requester alleged that the City of Alton violated the Open Meetings Act by voting on annexation ordinances that were not sufficiently identified on the meeting agenda. The PAC determined that the City failed to provide adequate notice of the subject matter as required by OMA.","plain_summary":"A citizen complained that the Alton City Council voted on two property annexation ordinances during its September 12, 2018, meeting, but the agenda only listed 'Comments or Resolutions from the City Council' and did not provide sufficient notice of the ordinances. The Illinois Attorney General's Public Access Bureau determined that the City Council's votes on those ordinances constituted final action under the Open Meetings Act, and that the City violated section 2.02(c) of the Act by failing to describe the general subject matter of the ordinances on the agenda. The determination did not include any order to close the file or advice about future compliance.","holding":"The City of Alton violated section 2.02(c) of the Open Meetings Act by failing to provide sufficient advance notice on its agenda regarding the annexation ordinances.","legal_question":"Whether the City of Alton violated section 2.02(c) of the Open Meetings Act by failing to provide sufficient advance notice of the general subject matter of ordinances voted upon during a meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Alton City Council","requesting_party":"Mr. James Sinclair","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of agenda descriptions for property annexation ordinances voted on by the City Council.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/55664, issued March 4, 2022.pdf","sha256":"29f306665390a48b1c6d36a733c8b518061250573f65e760b5f901206554147c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","annexation","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 4, 2022\n\nVia electronic mail\nMr. James Sinclair\nStobbs, Sinclair & Associates, Ltd.\n[street address redacted for site publication -- see original PDF]\ncterry@stobbsnsinclair. com\nThe Honorable David Goins\nMayor\nCity of Alton\n101 East Third Street\nAlton, Illinois 62002\nRE: OMA Request for Review – 2018 PAC 55664\nDear Mr. Sinclair and Mr. Goins:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)).\nOn November 9, 2018, Mr. James Sinclair submitted a Request for Review to the\nPublic Access Bureau alleging that the City of Alton ( City) City Council ( City Council) violated\nthe Open Meetings Act (OMA) ( 5 ILCS 120/ 1 et seq. ( West 2018)) during its September 12,\n2018, meeting. Mr. Sinclair asserted that the City Council voted to approve two ordinances\nconcerning the annexation of certain properties that were not sufficiently identified on the\nagenda. 1 On November 19, 2018, this office forwarded a copy of Mr. Sinclair' s Request for\n1Mr. Sinclair' s Request for Review also asked this office to review the form that the City Council\nprovides individuals who wish to provide public comment to determine whether that form complies with section\n2.06(g) of OMA (5 ILCS/120/2.06(g) (West 2018)). His Request for Review, however, did not allege a specific\ninstance in which he or any other member of the public were prohibited from addressing City Council members in\nviolation of section 2.06(g) of OMA. Without an allegation that a public body's practices concerning public\ncomment were applied in a manner that violated OMA, this office will not undertake a review of those practices.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 47990, issued June 5, 2017.\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. James Sinclair\nThe Honorable David Goins\nMarch 4, 2022\nPage 2\n\nReview to the City Council and asked it to provide a written response to this allegation. On\nJanuary 9, 2019, outside counsel for the City responded on behalf of the City Council; Mr.\nSinclair replied to that response on January 18, 2019.\nThe September 12, 2018, agenda item for the ordinances in question stated\nComments or Resolutions from the City Council.\" 2 The City Council' s answer to this office\nacknowledged that the agenda did not provide advance notice that it would consider these\nordinances during its September 12, 2018, meeting. Accordingly, it is undisputed that a member\nof the public reading the agenda in advance of the Board' s September 12, 2018, meeting, would\nnot have had sufficient notice that the City Council planned to vote on the ordinances at issue.\nThe City Council, however, contended that the votes on those ordinances during the September\n12, 2018, meeting did not constitute \" final action.\" The City Council argued the \" votes were\ntaken * * * under the suspension of the rules provisions of the local rules of the * * * City\nCouncil [ and] [ s] uch votes do not constitute legal final actions of the City Council because they\nare in fact not allowed to be final actions by the provisions of [OMA].\" 3 The City Council' s\nresponse indicated that the agenda for its September 26, 2018, meeting, described the actions that\nwere taken \" under suspension of the rules\" during the prior meeting. The City Council argued\nthat, \"[ u]ntil and unless the required affirmative vote is obtained for the approval of those\nspecific action items, they are not lawfully approved by final action of the City Council.\" 4\nIn his reply, Mr. Sinclair argued, among other things, that the City Council cannot\nsuspend its own rules when doing so would frustrate the requirements of OMA.\nSection 2.02(c) of OMA ( 5 ILCS 120/ 2.02(c) ( West 2018)) requires an agenda to\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not define \" final action,\" and no Illinois court has\nprecisely defined that term. However, based on the guidance provided by Illinois courts\nanalyzing this subject matter, 5 this office has previously determined that an action taken that is a\n\n2Alton City Council, Agenda Item 14, Comments or Resolutions from the City Council\nSeptember 12, 2018).\n3E- mail from James E. Schrempf, Schrempf, Kelly & Napp Ltd., to Shannon [ Barnaby], [ Assistant\nAttorney General], [ Public Access Bureau] ( January 9, 2019).\n4E-mail from James E. Schrempf, Schrempf, Kelly & Napp Ltd., to Shannon [ Barnaby], [ Assistant\nAttorney General], [ Public Access Bureau] ( January 9, 2019).\n5See, for example, Gosnell v. Hogan, 179 Ill. App. 3d 161 ( 5th Dist. 1989) ( board' s authorization\nof mediation was merely a step towards reaching final action on the secretaries' union's contract); Kosoglad v.\nPorcelli, 132 Ill. App. 3d 1081, 1092 ( 1st Dist. 1985) ( vote to remove commissioner from police board in open\n\n\fMr. James Sinclair\nThe Honorable David Goins\nMarch 4, 2022\nPage 3\n\nmerely a step in a public body' s process for reaching final action on an issue does not constitute\nfinal action,\" but a vote that resolves a matter does. Compare Ill. Att'y Gen. PAC Req. Rev.\nLtr. 32463, issued July 14, 2015, at 3 (directing staff to explore funding for a sporting event bid\nin open session was a \" step in furtherance of reaching final action, rather than final action\nitself\"); with Ill. Att'y Gen. PAC Req. Rev. Ltr. 55599, issued August 7, 2019, at 2-4 (vote in\nopen session to certify candidates for appointment to the position of deputy sheriff was final\naction).\nThe minutes from the City Council' s September 12, 2018, meeting, show that the\nCity Council took the following action:\nAmended Ordinance No. 7665. An Ordinance approving\nan Annexation Agreement between the City of Alton and Larry\nManns. Mr. Boulds made, a motion, seconded by Ms. Smith, that\nsaid ordinance as amended be adopted. The motion passed * * *\n\nWHEREAS, the City Council of the City of Alton, Illinois\nhas approved a[ n] Annexation Agreement between the City of\nAlton and Larry Manns pursuant to all appropriate and legally\nrequired notices, including a public hearing, concerning\napproximately 286 acres as more specifically identified in said\nAgreement.[ 6]\nLikewise, with Ordinance No. 7666, the minutes demonstrate that the City Council voted to\napprove an \" Ordinance annexing certain territory to the City of Alton, Madison County,\nIllinois.\" 7\nFurther, the ordinances both provide that, \"[ t]his Ordinance shall be in full force\nand effect following its passage, [ and] approval\" and show that the ordinances were \"[ p]assed by\nsession was final action); Davis v. Board of Education of Farmer City Mansfield Community Unit School District\nNo. 17, 63 Ill. App. 3d 495, 499 ( 4th Dist. 1978) ( adoption of resolution in closed session stating tentative intent to\nterminate superintendent' s employment \" did not dispose of the question of whether that employment should be\nterminated and, therefore, was not final action[,]\" where board subsequently took final action to terminate the\nsuperintendent' s employment in open session).\n6Alton City Council, Meeting, September 12, 2018, Minutes 19-20.\n7Alton City Council, Meeting, September 12, 2018, Minutes 20.\n\n\fMr. James Sinclair\nThe Honorable David Goins\nMarch 4, 2022\nPage 4\n\nthe City Council of the City of Alton this 12th day of September, 2018. Approved by the Mayor\nof the City of Alton this 13th day of September, 2018.\" 8 Lastly, the annexation agreement\nattached to Ordinance No. 7665 states it was \" made and entered into this 12th day of September,\n2018[.]\" 9\nUnder these circumstances, it is clear that the action taken by the City Council on\nthe two ordinances during its September 12, 2018, meeting was the ultimate decision that\nauthorized the City to enter into the agreements annexing the relevant proprieties, rather an\ninterim step. The City Council' s argument that the final action— the City Council voting to\nratify \" actions taken under suspension of rules at prior meeting\" 10— did not take place until its\nsubsequent meeting on September 26, 2018, is not supported by the plain language contained\nwithin the documents. Instead, the documents demonstrate that the passage of the ordinances in\nquestion during the September 12, 2018, meeting bound the City to the future courses of action\ndescribed within the annexation agreements. This was not a matter of merely reaching a\ntentative consensus as a preliminary step to final approval. Because the City Council\nimplemented the ordinances by approving them at the September 12, 2018, meeting, those votes\nconstituted final actions subject to the advance notice requirements of section 2.02 of OMA.\nLastly, the City Council argued that the votes during the September 12, 2018,\nmeeting did not violate OMA because it has discretion to suspend its rules under the City's Code\nof Ordinances. Relying on those local rules, the City Council argues that the votes taken on\nSeptember 12, 2018, were not \" legal final actions\" until the ordinances were approved at the\nSeptember 26, 2018, meeting, despite the fact that the ordinances themselves state they were\nalready in effect prior to the September 26, 2018, meeting. This office, however, has previously\ndetermined that a public body' s suspension of its own rules to approve an item does not relieve it\nof its obligation under section 2.02(c) of OMA to describe the general subject matter of the items\non its agenda. Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018. In that matter, a\ncity council listed on its agenda a proposed ordinance, but specifically labeled the item as \" first\nread,\" which signaled that the city council would only take a preliminary, procedural step on the\nordinance at that meeting. The city council argued to this office that the adoption of the\nordinance was proper because it had properly suspended its rules, which generally required the\ncity council to vote on a proposed ordinance at a meeting subsequent to the meeting at which the\n8City of Alton Ordinance No. 7665 ( approved September 12, 2018); City of Alton Ordinance No.\n7666 ( approved September 12, 2018).\n9Annexation Agreement between the City of Alton and Larry Manns, September 12, 2018, at 1.\n10E- mail from James E. Schrempf, Schrempf, Kelly & Napp Ltd., to Shannon [ Barnaby],\nAssistant Attorney General], [ Public Access Bureau] ( January 9, 2019).\n\n\fMr. James Sinclair\nThe Honorable David Goins\nMarch 4, 2022\nPage 5\n\nordinance is first read, because the city council also had a rule allowing it to suspend its rules by\na vote of two-thirds. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018, at 3.\nThe Public Access Bureau rejected the city council' s argument that its action to suspend its own\nrules outlining the process for adopting ordinances authorized it to take final action on an\nordinance listed on the agenda only as \" first read:\"\nConstruing section 2.02(c) of OMA as permitting public bodies to\nvote on matters that are identified on meeting agendas as merely\nprocedural motions that precede final action would be contrary to\nthe General Assembly intent of ensuring that agendas notify\nthe public of all matters that public bodies will be acting\nupon.[ 11]\nWhile that city council may have been able to suspend its rules to approve that ordinance despite\nit being the first time the ordinance was discussed at a meeting, its authority to suspend its own\nprocedures rules did not give it the authority to avoid the requirements of section 2.02(c) of\nOMA. Here, the City Council' s rule that purports to allow the City Council to suspend the\nrequirements of section 2.02(c) of OMA is in direct conflict with the General Assembly' s intent\nthat a member of the public reading an agenda in advance of a meeting would have sufficient\nnotice concerning what the public body planned to vote on at that meeting.\nFurther, the General Assembly has expressly limited the exercise of home rule\npowers in OMA. Section 6 of OMA (5 ILCS 120/ 6 (West 2020)) provides, \"[ t]he provisions of\nthis Act constitute minimum requirements for home rule units; any home rule unit may enact an\nordinance prescribing more stringent requirements binding upon itself which would serve to give\nfurther notice to the public and facilitate public access to meetings.\" Therefore, even though the\nCity is a home rule municipality, 12 it may not pass an ordinance through the exercise of its home\nrule powers that supplants or supersedes the provisions of OMA. See Palm v. 2800 Lake Shore\nDrive Condominium Ass'n, 2013 IL 110505, ¶ 32 (2013), 988 N.E.2d 75, 81 (2013) ( stating a\nhome rule ordinance is a valid exercise of home rule power if it relates to the home rule unit's\ngovernment and affairs\" and the legislature has not expressly preempted the exercise of home\nrule powers on that subject).\nAccordingly, this office concludes that the City Council violated section 2.02(c)\nof OMA by voting to approve two ordinances that were not sufficiently identified on the agenda\nfor its September 12, 2018, meeting.\n11Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018, at 3-4. (Emphasis added).\n12Illinois Municipal League, Home Rule Municipalities, http:// www.iml.org/page. cfm?key=2 (last\nvisited March 3, 2022).\n\n\fr.James Sinclair\nThe Honorable David Goins\nMarch 4, 2022\nPage 6\n\nThis office' s review of the September 26, 2018, agenda and meetings minutes\nconfirms that the City Council included the relevant ordinances on that agenda before re-voting\non the issue. Therefore, the City Council need not take additional remedial action with respect to\nthe ordinances at issue in this Request for Review. This office, however, reminds the City\nCouncil of its obligation to ensure that all future agendas meet the requirement of section 2.02(c)\nthat each agenda provide sufficient advance notice to the public of the general subject matter of\nthe items on which it intends to take action at that meeting. The City Council may not\ncircumvent this express requirement by suspending its rules and voting to approve ordinances for\nwhich advance notice is not provided, and then ratifying those ordinances at future meetings\nafter they have been implemented and taken effect. This office encourages the City Council to\nupdate its ordinances as necessary to ensure that its practices at meetings conform with section\n2.02(c) and all other requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at Shannon. Barnaby@ilag. gov\n\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n55664 o 202c improper mun\ncc:\n\nVia electronic mail\nJames E. Schrempf\nSchrempf, Kelly & Napp Ltd.\n307 Henry Street, Suite 415\nP.O. Box 725\nAlton, Illinois 62002\njschrempf@sknlawyer. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda descriptions for property annexation ordinances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55664/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 4, 2022\n\nVia electronic mail\nMr. James Sinclair\nStobbs, Sinclair & Associates, Ltd.\n[street address redacted for site publication -- see original PDF]\ncterry@stobbsnsinclair. com\nThe Honorable David Goins\nMayor\nCity of Alton\n101 East Third Street\nAlton, Illinois 62002\nRE: OMA Request for Review – 2018 PAC 55664\nDear Mr. Sinclair and Mr. Goins:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)).\nOn November 9, 2018, Mr. James Sinclair submitted a Request for Review to the\nPublic Access Bureau alleging that the City of Alton (City) City Council (City Council) violated\nthe Open Meetings Act (OMA) (5 ILCS 120/ 1 et seq. (West 2018)) during its September 12,\n2018, meeting. Mr. Sinclair asserted that the City Council voted to approve two ordinances\nconcerning the annexation of certain properties that were not sufficiently identified on the\nagenda. 1 On November 19, 2018, this office forwarded a copy of Mr. Sinclair's Request for\n1 Mr. Sinclair's Request for Review also asked this office to review the form that the City Council\nprovides individuals who wish to provide public comment to determine whether that form complies with section\n2.06(g) of OMA (5 ILCS/120/2.06(g) (West 2018)). His Request for Review, however, did not allege a specific\ninstance in which he or any other member of the public were prohibited from addressing City Council members in\nviolation of section 2.06(g) of OMA. Without an allegation that a public body's practices concerning public\ncomment were applied in a manner that violated OMA, this office will not undertake a review of those practices.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 47990, issued June 5, 2017.\n\nReview to the City Council and asked it to provide a written response to this allegation. On\nJanuary 9, 2019, outside counsel for the City responded on behalf of the City Council; Mr.\nSinclair replied to that response on January 18, 2019.\nThe September 12, 2018, agenda item for the ordinances in question stated\nComments or Resolutions from the City Council.\" 2 The City Council's answer to this office\nacknowledged that the agenda did not provide advance notice that it would consider these\nordinances during its September 12, 2018, meeting. Accordingly, it is undisputed that a member\nof the public reading the agenda in advance of the Board's September 12, 2018, meeting, would\nnot have had sufficient notice that the City Council planned to vote on the ordinances at issue.\nThe City Council, however, contended that the votes on those ordinances during the September\n12, 2018, meeting did not constitute \" final action.\" The City Council argued the \" votes were\ntaken * * * under the suspension of the rules provisions of the local rules of the * * * City\nCouncil [ and] [ s] uch votes do not constitute legal final actions of the City Council because they\nare in fact not allowed to be final actions by the provisions of [OMA].\" 3 The City Council's\nresponse indicated that the agenda for its September 26, 2018, meeting, described the actions that\nwere taken \" under suspension of the rules\" during the prior meeting. The City Council argued\nthat, \"[ u]ntil and unless the required affirmative vote is obtained for the approval of those\nspecific action items, they are not lawfully approved by final action of the City Council.\" 4\nIn his reply, Mr. Sinclair argued, among other things, that the City Council cannot\nsuspend its own rules when doing so would frustrate the requirements of OMA.\nSection 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2018)) requires an agenda to\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not define \" final action,\" and no Illinois court has\nprecisely defined that term. However, based on the guidance provided by Illinois courts\nanalyzing this subject matter, 5 this office has previously determined that an action taken that is a\n\n2 Alton City Council, Agenda Item 14, Comments or Resolutions from the City Council\nSeptember 12, 2018).\n3E- mail from James E. Schrempf, Schrempf, Kelly & Napp Ltd., to Shannon [ Barnaby], [ Assistant\nAttorney General], [ Public Access Bureau] (January 9, 2019).\n4E-mail from James E. Schrempf, Schrempf, Kelly & Napp Ltd., to Shannon [ Barnaby], [ Assistant\nAttorney General], [ Public Access Bureau] (January 9, 2019).\n5 See, for example, Gosnell v. Hogan, 179 Ill. App. 3d 161 (5th Dist. 1989) (board's authorization\nof mediation was merely a step towards reaching final action on the secretaries' union's contract); Kosoglad v.\nPorcelli, 132 Ill. App. 3d 1081, 1092 (1st Dist. 1985) (vote to remove commissioner from police board in open\n\nmerely a step in a public body's process for reaching final action on an issue does not constitute\nfinal action,\" but a vote that resolves a matter does. Compare Ill. Att'y Gen. PAC Req. Rev.\nLtr. 32463, issued July 14, 2015, at 3 (directing staff to explore funding for a sporting event bid\nin open session was a \" step in furtherance of reaching final action, rather than final action\nitself\"); with Ill. Att'y Gen. PAC Req. Rev. Ltr. 55599, issued August 7, 2019, at 2-4 (vote in\nopen session to certify candidates for appointment to the position of deputy sheriff was final\naction).\nThe minutes from the City Council's September 12, 2018, meeting, show that the\nCity Council took the following action:\nAmended Ordinance No. 7665. An Ordinance approving\nan Annexation Agreement between the City of Alton and Larry\nManns. Mr. Boulds made, a motion, seconded by Ms. Smith, that\nsaid ordinance as amended be adopted. The motion passed * * *\n\nWHEREAS, the City Council of the City of Alton, Illinois\nhas approved a[ n] Annexation Agreement between the City of\nAlton and Larry Manns pursuant to all appropriate and legally\nrequired notices, including a public hearing, concerning\napproximately 286 acres as more specifically identified in said\nAgreement.[ 6]\nLikewise, with Ordinance No. 7666, the minutes demonstrate that the City Council voted to\napprove an \" Ordinance annexing certain territory to the City of Alton, Madison County,\nIllinois.\" 7\nFurther, the ordinances both provide that, \"[ t]his Ordinance shall be in full force\nand effect following its passage, [ and] approval\" and show that the ordinances were \"[ p]assed by\nsession was final action); Davis v. Board of Education of Farmer City Mansfield Community Unit School District\nNo. 17, 63 Ill. App. 3d 495, 499 (4th Dist. 1978) (adoption of resolution in closed session stating tentative intent to\nterminate superintendent's employment \" did not dispose of the question of whether that employment should be\nterminated and, therefore, was not final action[,]\" where board subsequently took final action to terminate the\n\nthe City Council of the City of Alton this 12th day of September, 2018. Approved by the Mayor\nof the City of Alton this 13th day of September, 2018.\" 8 Lastly, the annexation agreement\nattached to Ordinance No. 7665 states it was \" made and entered into this 12th day of September,\n2018[.]\" 9\nUnder these circumstances, it is clear that the action taken by the City Council on\nthe two ordinances during its September 12, 2018, meeting was the ultimate decision that\nauthorized the City to enter into the agreements annexing the relevant proprieties, rather an\ninterim step. The City Council's argument that the final action— the City Council voting to\nratify \" actions taken under suspension of rules at prior meeting\" 10— did not take place until its\nsubsequent meeting on September 26, 2018, is not supported by the plain language contained\nwithin the documents. Instead, the documents demonstrate that the passage of the ordinances in\nquestion during the September 12, 2018, meeting bound the City to the future courses of action\ndescribed within the annexation agreements. This was not a matter of merely reaching a\ntentative consensus as a preliminary step to final approval. Because the City Council\nimplemented the ordinances by approving them at the September 12, 2018, meeting, those votes\nconstituted final actions subject to the advance notice requirements of section 2.02 of OMA.\nLastly, the City Council argued that the votes during the September 12, 2018,\nmeeting did not violate OMA because it has discretion to suspend its rules under the City's Code\nof Ordinances. Relying on those local rules, the City Council argues that the votes taken on\nSeptember 12, 2018, were not \" legal final actions\" until the ordinances were approved at the\nSeptember 26, 2018, meeting, despite the fact that the ordinances themselves state they were\nalready in effect prior to the September 26, 2018, meeting. This office, however, has previously\ndetermined that a public body's suspension of its own rules to approve an item does not relieve it\nof its obligation under section 2.02(c) of OMA to describe the general subject matter of the items\non its agenda. Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018. In that matter, a\ncity council listed on its agenda a proposed ordinance, but specifically labeled the item as \" first\nread,\" which signaled that the city council would only take a preliminary, procedural step on the\nordinance at that meeting. The city council argued to this office that the adoption of the\nordinance was proper because it had properly suspended its rules, which generally required the\ncity council to vote on a proposed ordinance at a meeting subsequent to the meeting at which the\n8 City of Alton Ordinance No. 7665 (approved September 12, 2018); City of Alton Ordinance No.\n\nordinance is first read, because the city council also had a rule allowing it to suspend its rules by\na vote of two-thirds. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018, at 3.\nThe Public Access Bureau rejected the city council's argument that its action to suspend its own\nrules outlining the process for adopting ordinances authorized it to take final action on an\nordinance listed on the agenda only as \" first read:\"\nConstruing section 2.02(c) of OMA as permitting public bodies to\nvote on matters that are identified on meeting agendas as merely\nprocedural motions that precede final action would be contrary to\nthe General Assembly intent of ensuring that agendas notify\nthe public of all matters that public bodies will be acting\nupon.[ 11]\nWhile that city council may have been able to suspend its rules to approve that ordinance despite\nit being the first time the ordinance was discussed at a meeting, its authority to suspend its own\nprocedures rules did not give it the authority to avoid the requirements of section 2.02(c) of\nOMA. Here, the City Council's rule that purports to allow the City Council to suspend the\nrequirements of section 2.02(c) of OMA is in direct conflict with the General Assembly's intent\nthat a member of the public reading an agenda in advance of a meeting would have sufficient\nnotice concerning what the public body planned to vote on at that meeting.\nFurther, the General Assembly has expressly limited the exercise of home rule\npowers in OMA. Section 6 of OMA (5 ILCS 120/ 6 (West 2020)) provides, \"[ t]he provisions of\nthis Act constitute minimum requirements for home rule units; any home rule unit may enact an\nordinance prescribing more stringent requirements binding upon itself which would serve to give\nfurther notice to the public and facilitate public access to meetings.\" Therefore, even though the\nCity is a home rule municipality, 12 it may not pass an ordinance through the exercise of its home\nrule powers that supplants or supersedes the provisions of OMA. See Palm v. 2800 Lake Shore\nDrive Condominium Ass'n, 2013 IL 110505, ¶ 32 (2013), 988 N.E.2d 75, 81 (2013) (stating a\nhome rule ordinance is a valid exercise of home rule power if it relates to the home rule unit's\ngovernment and affairs\" and the legislature has not expressly preempted the exercise of home\nrule powers on that subject).\nAccordingly, this office concludes that the City Council violated section 2.02(c)\nof OMA by voting to approve two ordinances that were not sufficiently identified on the agenda\nfor its September 12, 2018, meeting.\n11 Ill. Att'y Gen. PAC Req. Rev. Ltr. 51069, issued March 6, 2018, at 3-4. (Emphasis added).\n12 Illinois Municipal League, Home Rule Municipalities, http:// www.iml.org/page. cfm?key=2 (last\n\nThis office's review of the September 26, 2018, agenda and meetings minutes\nconfirms that the City Council included the relevant ordinances on that agenda before re-voting\non the issue. Therefore, the City Council need not take additional remedial action with respect to\nthe ordinances at issue in this Request for Review. This office, however, reminds the City\nCouncil of its obligation to ensure that all future agendas meet the requirement of section 2.02(c)\nthat each agenda provide sufficient advance notice to the public of the general subject matter of\nthe items on which it intends to take action at that meeting. The City Council may not\ncircumvent this express requirement by suspending its rules and voting to approve ordinances for\nwhich advance notice is not provided, and then ratifying those ordinances at future meetings\nafter they have been implemented and taken effect. This office encourages the City Council to\nupdate its ordinances as necessary to ensure that its practices at meetings conform with section\n2.02(c) and all other requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at Shannon. Barnaby@ilag. gov\n\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n55664 o 202c improper mun\ncc:\n\nVia electronic mail\nJames E. Schrempf\nSchrempf, Kelly & Napp Ltd.\n307 Henry Street, Suite 415\nP.O. Box 725\nAlton, Illinois 62002\njschrempf@sknlawyer. com"}
{"id":1280,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-04-02","case_number":null,"request_numbers":["55687"],"title":"Aurora Library Board violated OMA by discussing branch relocation in closed session","filename":"55687, issued April 2, 2019.pdf","rel_path":null,"word_count":2703,"summary":"A requester alleged that the Aurora Public Library Board improperly discussed the relocation of a library branch in closed sessions; the PAC determined that while most discussions were permitted, specific portions of four meetings violated the Open Meetings Act.","plain_summary":"A citizen complained that the Aurora Public Library Board discussed moving a library branch behind closed doors, which is generally not allowed under the Open Meetings Act. The Attorney General's office reviewed the recordings and found that most of the closed session discussions were legal, but discrete portions of the discussions were not authorized by the exceptions the Board cited. The determination does not order the Board to release any recordings or take any other action.","holding":"The Board of Library Trustees held closed sessions on four dates in 2018; most discussions were permitted, but discrete portions were not authorized by the Open Meetings Act exceptions.","legal_question":"Whether the Aurora Public Library Board violated the Open Meetings Act by discussing the potential relocation of a library branch during closed session meetings.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Board of Library Trustees of the Aurora Public Library","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held closed session discussions regarding the potential relocation of the library's West Branch.","ocr_status":"ok","ocr_quality":98.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_5/55687, issued April 2, 2019.pdf","sha256":"c43481ddf8cb848b93edb8dc0a57034645281c68b598c4992583cb3a7e2da4e3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","public meetings","library board","meeting recordings"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 2, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. John Savage\n\nPresident, Board of Library Trustees\nAurora Public Library\n101 South River Street\nAurora, Illinois 60506\n\nboard@aurorapubliclibrary. org\nRE: OMA Request for Review —2018 PAC 55687\nDear\n\nand Mr. Savage:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nAct ( OMA) ( 5 ILCS I20/ 3. 5( e) ( West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that most of the closed session discussions held by the Board of Library\nTrustees ( Board) of the Aurora Public Library ( Library) on January 24, 2018, March 28, 2018,\nJuly 25, 2018, and August 29, 2018, were permitted by exceptions in OMA to the general\nrequirement that public bodies conduct business openly. However, this office further concludes\n\nthat discrete portions of the discussions were not authorized by the exceptions under which the\nBoard entered closed session.\n\nOn November 13, 2018,\n\nsubmitted the above -captioned Request\n\nfor Review alleging that on October 16, 2018, the president of the Board participated in a press\nconference with the mayor of Aurora and the superintendent of West Aurora School District 129\n\nDistrict) during which the Board president stated that during 2018 the Board had held closed\nsession discussions about possibly moving the Library's West Branch.\nalleged that\n\nOMA does not contain an exception permitting closed session discussions about the possibility\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\nUniversity Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n601 South\n\n\fMr. John Savage\nApril 2, 2019\nPage 2\n\nof such a move. On November 20, 2018, this office forwarded a copy of the Request for Review\nto the Board and asked it to provide copies of the closed session minutes (in draft form if\n\nnecessary) and verbatim recordings from the Board' s closed session meetings held on March 28,\n2018, July 25, 2018, and August 29, 2018, along with the records from any other meetings held\nin 2018 during which the Board discussed issues related to the possible relocation of the West\n\nBranch. This office also asked the Board to identify the closed session exception or exceptions\nthat permitted those discussions, together with a written response t\n\nallegations.\n\nOn November 30, 2018, the Board provided this office with those materials and a\n\nwritten response in which it acknowledged that it discussed the possible relocation of the West\n\nBranch during the closed sessions of four meetings held in 2018, but argued that each of those\ndiscussions fell within the scope of either section 2( c)( 5) or 2( c)( 6) of OMA ( 5 ILCS 120/ 2( c)( 5),\n\nc)( 6) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 31, 2018). The\nBoard furnished this office with a written response to the Request for Review, along with a\nredacted version of its response suitable for disclosure to\n\nthis office sent a copy of the Board's response to\n\nOn December 4, 2018,\n\nhe replied on December 9, 2018.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\"\n\n5 ILCS 120/ 1 ( West 2016).\n\nTime Limits for Requests for Review\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation.\n\nIf\n\nfacts concerning the violation are not discovered within the 60 day period, but are discovered at a later date, not exceeding 2\n\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\n5 ILCS\n\n120/ 3. 5( c) ( West 2016) (\"[\n\nT] he public body may also furnish the Public Access\nCounselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public\nAccess Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the\nrequest\n\nfor review.\").\n\n\fMr. John Savage\nApril 2, 2019\nPage 3\n\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. ( Emphasis added.)\n\nIn his Request for Review,\n\nstated that the Board had not discussed the\n\npossibility of relocating the West Branch during open session at any of its meetings held during\n2018, and had denied that there were plans in place to do so.. Thus, the alleged violations were\nnot discovered until the October 16, 2018, press conference. Although each of the Board's 2018\n\nclosed session meetings during which it acknowledges discussing this issue were held more than\n60 days before\n\nsubmitted his Request for Review on November 13, 2018, it appears\n\nthat he could not have learned material facts concerning the alleged violations at the time that\nthey occurred, despite using reasonable diligence, because the possible violations occurred\nduring closed sessions.\nsubmitted this Request for Review to this office on\nNovember 13, 2018, which was within 60 days after the discovery of the alleged violations on\n\nOctober 16, 2018. Accordingly, this Request for Review was filed within the time limits set out\nin section 3. 5( a) of OMA, and this office has authority to review\n\nallegations.\n\nClosed Sessions\n\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018) provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2( c) of OMA. The section 2( c) exceptions are to be \" strictly construed, extending only to\n\nsubjects clearly within their scope.\" 5 ILCS 120/ 2( b) ( West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018.\nThe Board' s response to this office explains that it held four closed session\n\ndiscussions \" to evaluate options to possibly relocate the West Branch and to [ sell] or lease the\n\nbuilding owned by the Library which currently houses the West Branch.\" 2 Those closed session\nmeetings occurred on January 24, 2018, March 28, 2018, July 25, 2018, and August 29, 2018.\n\nOn January 24, 2018, the Board entered closed session pursuant to section 2( c)( 5) of OMA ( 5\nILCS 120/ 2( c)( 5) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n2018), 3 and on the other three dates, it entered closed session pursuant to sections 2( c)( 5),\n2Letter from John Savage, President, Board of Library Trustees, Aurora Public Library, to Leah\nBartelt, Assistant Attorney General, Office of the Illinois Attorney General, Public Access Bureau ( November 30,\n2018), at 2.\n\nBoard of Library Directors, Aurora ( Illinois) Public Library, Meeting, January 24, 2018, Minutes\n3.\n\n\fMr. John Savage\nApril 2, 2019\nPage 4\n\n2( c)( 6), and 2( c)( 21) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n2018). 4 The Board argues that all discussions it held during those meetings relating to the\n\npotential move of the West Branch and were authorized by sections 2( c)( 5) and 2( c)( 6). 5\nSections 2( c)( 5) and 2( c)( 6) of OMA allow public bodies to enter into closed\nsession to consider:\n\nThe purchase or lease of real property for the use of the\npublic body, including meetings held for the purpose of discussing\n5)\n\nwhether a particular parcel should be acquired.\n\n6)\n\nThe setting of a price for sale or lease of property owned\nby the public body.\nThe Illinois Appellate Court addressed the scope of section 2( c)( 5) of OMA in\n\nGalena Gazette Publications Inc., v. County ofJo Daviess, 375 I11. App. 3d 338 ( 2d Dist. 2007),\n\nin which the public body held a closed session meeting held to discuss the possibility of leasing a\nspecific property for its use. There, the plaintiff conceded that the public body could permissibly\ndiscuss the material terms of the lease in closed session, but argued that the scope of section\n\n2( c)( 5) did not extend to \" peripheral matters\" that were raised, such as how the public body\n\nwould utilize the leased space. Galena Gazette, 375 Ill. App. 3d at 344. The court disagreed,\n\nfinding that nothing in the language of section 2( c)( 5) distinguishes \" material\" matters from\nperipheral ones. Galena Gazette, 375 I11. App. 3d at 344. The court added that it would be\nimpractical for the public body to have a meaningful discussion of the lease terms if it was\nprecluded from discussing related details needed to put the terms in context. Galena Gazette,\n375 Ill. App. 3d at 345. Because the public body' s closed session discussion centered on\nconsiderations involving the potential lease, the court held that the discussion was proper under\nsection 2( c)( 5). Galena Gazette, 375 Ill. App. 3d at 346.\nIn contrast, the scope of section 2( c)( 6) limits a public body to discussing \"[ t] he\n\nsetting of a price for sale or lease\" of property that it owns. ( Emphasis added.) Unlike section\n2( c)( 5), the clear and unambiguous language of section 2( c)( 6), which must be strictly construed,\ndoes not allow a public body to discuss the sale or lease of its property in closed session other\nBoard of Library Directors, Aurora ( Illinois) Public Library, Meeting, March 28, 2018, Minutes\n5; Board of Library Directors, Aurora ( Illinois) Public Library, Meeting, July 25, 2018, Minutes 5- 6; Board of\nLibrary Directors, Aurora ( Illinois) Public Library, Meeting, August 29, 2018, Minutes 5.\nSection 2( c)( 21) of OMA permits closed session discussion of the minutes of meetings lawfully\nclosed under OMA. At the three meetings at which it cited this exception, the Board held a short discussion that was\nauthorized\n\nby this exception in addition\n\nto discussing the possibility\n\nof relocating\n\nthe Library' s West Branch.\n\n\fMr. John Savage\nApril 2, 2019\nPage 5\n\nthan to set a price. While section 2( c)( 5) of OMA allows general closed session discussions\n\nconcerning the purchase or lease of real property for the use of the public body, neither it, nor\nsection 2( c)( 6), authorizes general discussions regarding the sale or lease of its existing public\nproperty. See Ill. Att' y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 ( Section\n2( c)( 6) of OMA does \" not extend to the discussion of general issues concerning the disposal of\npublicly -owned property.\").\n\nIn his reply,\nnoted that the minutes from the Boards January 24, 2018,\nclosed session, which the Board recently made available to the public, fail to identify any\nparticular property that was discussed at the meeting, and fail to show that a proposed lease or\ncontract for purchase was presented to the Board.\nfurther states that the Library is\nrestricted from selling the West Branch without prior notice according to the terms of an\n\nintergovernmental agreement between the Library and the District. Therefore, he asserts, the\nBoard cannot discuss the setting of a price for the sale or lease of the West Branch prior to\ndeciding to terminate the intergovernmental\n\nagreement with the District, and closed session\n\ndeliberation about the termination of that agreement would be outside the scope of the cited\nexemptions.\n\nBased on this office' s confidential review of the closed session recordings of each\n\nof the four meetings, the Board held lengthy discussions concerning the potential purchase or\n\nlease of real property for the use of the public body, including discussions as to whether specific\nparcels should be acquired or leased.\n\nof OMA.\n\nThese discussions were permissible under section 2( c)( 5)\n\nargues that the information provided in the minutes of the Board' s January\n\n24, 2018, closed session and in response to a FOIA request he submitted indicated that the Board\n\nwas not considering a specific lease or sale agreement during that meeting. However, nothing in\nthe language of section 2( c)( 5) limits a public body from discussing a potential purchase or lease\nof property if the public body has not presented its members with proposed terms for an\nagreement.\n\nOur review of the four closed session recordings indicates that a significant portion\n\nof each meeting was devoted to discussing specific parcels of property for use by the Library,\nincluding the pros and cons of different parcels, the Library' s anticipated uses of those parcels,\nand the financial terms of the transactions under consideration.\n\nAdditionally, our confidential review of the recordings from the March, July, and\nAugust closed sessions indicates that the Board also discussed at those meetings the setting of a\nprice for sale or lease of the building owned by the Library which currently houses the West\n\nBranch. These discussions were permissible under section 2( c)( 6). Although\nargues\nthat the intergovernmental agreement between the Library and District restricts the Library' s\nability to sell or lease the West Branch property, the recordings of the closed session meeting do\nnot document a deliberation over the possible termination of the intergovernmental agreement.\nFurther,\n\nsection\n\n2( c)( 6) does not require\n\nsuch\n\nan agreement\n\nto be terminated before\n\na public\n\nbody\n\n\fMr. John Savage\nApril 2, 2019\nPage 6\n\ncan enter closed session to discuss the setting of a price for sale or lease of property that the\npublic body owns.\nHowever, our review indicated that, for short portions of each of the four\n\nmeetings at issue, the Board held discrete discussions concerning the property currently housing\nthe West Branch that were not limited to the setting of a price for that property, along with some\nother matters related to the West Branch. We have thoroughly reviewed the arguments presented\nby the Board in the confidential portions of its written response to the Request for Review, and\ndisagree that the entireties of the closed session discussions during these four meetings\nconcerning the West Branch were authorized by either section 2( c)( 5) or section 2( c)( 6). Based\non the timers on the copies of the recordings provided to this office, the unauthorized\noccurred\n\ndiscussions\n\nat:\n\nJanuary 24, 2018, meeting: 3: 16- 4: 32 and 6: 57- 8: 54;\nMarch 28, 2018, meeting: 17: 54- 18: 30, 20: 03- 22: 10, 23: 34- 24: 13, and\n25: 36- 26: 39;\n\nJuly 25, 2018, meeting: 6: 03- 7: 31, 13: 20- 14: 44, and 20: 11- 20: 38;\n\nAugust 29, 2018, meeting: 16: 15- 17: 25, 19: 45- 22: 54, and 25: 44- 25: 53.\nAccordingly, this office concludes that the Board violated OMA by discussing\ncertain unauthorized topics in closed session during its January 24, 2018, March 28, 2018, July\n25, 2018, and August 29, 2018, meetings. To remedy these violations, this office asks that the\nBoard vote to release to the public the limited portions of these closed session recordings as\n\nlisted above. The remainder of the recordings may remain confidential unless the Board\ndetermines that the need for confidentiality no longer exists.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at ( 312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n55687\n\no 2c5 proper\n\nimproper 2c6 proper improper lib\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion about a library branch relocation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55687/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 2, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. John Savage\n\nPresident, Board of Library Trustees\nAurora Public Library\n101 South River Street\nAurora, Illinois 60506\n\nboard@aurorapubliclibrary. org\nRE: OMA Request for Review —2018 PAC 55687\nDear\n\nand Mr. Savage:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nAct (OMA) (5 ILCS I20/ 3. 5(e) (West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that most of the closed session discussions held by the Board of Library\nTrustees (Board) of the Aurora Public Library (Library) on January 24, 2018, March 28, 2018,\nJuly 25, 2018, and August 29, 2018, were permitted by exceptions in OMA to the general\nrequirement that public bodies conduct business openly. However, this office further concludes\n\nthat discrete portions of the discussions were not authorized by the exceptions under which the\nBoard entered closed session.\n\nOn November 13, 2018,\n\nsubmitted the above -captioned Request\n\nfor Review alleging that on October 16, 2018, the president of the Board participated in a press\nconference with the mayor of Aurora and the superintendent of West Aurora School District 129\n\nDistrict) during which the Board president stated that during 2018 the Board had held closed\nsession discussions about possibly moving the Library's West Branch.\nalleged that\n\nOMA does not contain an exception permitting closed session discussions about the possibility\n\nof such a move. On November 20, 2018, this office forwarded a copy of the Request for Review\nto the Board and asked it to provide copies of the closed session minutes (in draft form if\n\nnecessary) and verbatim recordings from the Board's closed session meetings held on March 28,\n2018, July 25, 2018, and August 29, 2018, along with the records from any other meetings held\nin 2018 during which the Board discussed issues related to the possible relocation of the West\n\nBranch. This office also asked the Board to identify the closed session exception or exceptions\nthat permitted those discussions, together with a written response t\n\nallegations.\n\nOn November 30, 2018, the Board provided this office with those materials and a\n\nwritten response in which it acknowledged that it discussed the possible relocation of the West\n\nBranch during the closed sessions of four meetings held in 2018, but argued that each of those\ndiscussions fell within the scope of either section 2(c)(5) or 2(c)(6) of OMA (5 ILCS 120/ 2(c)(5),\n\nc)(6) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 31, 2018). The\nBoard furnished this office with a written response to the Request for Review, along with a\nredacted version of its response suitable for disclosure to\n\nthis office sent a copy of the Board's response to\n\nOn December 4, 2018,\n\nhe replied on December 9, 2018.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\"\n\n5 ILCS 120/ 1 (West 2016).\n\nTime Limits for Requests for Review\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation.\n\nIf\n\nfacts concerning the violation are not discovered within the 60 day period, but are discovered at a later date, not exceeding 2\n\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\n5 ILCS\n\n120/ 3. 5(c) (West 2016) (\"[\n\nT] he public body may also furnish the Public Access\nCounselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public\nAccess Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the\n\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\n\nIn his Request for Review,\n\nstated that the Board had not discussed the\n\npossibility of relocating the West Branch during open session at any of its meetings held during\n2018, and had denied that there were plans in place to do so.. Thus, the alleged violations were\nnot discovered until the October 16, 2018, press conference. Although each of the Board's 2018\n\nclosed session meetings during which it acknowledges discussing this issue were held more than\n60 days before\n\nsubmitted his Request for Review on November 13, 2018, it appears\n\nthat he could not have learned material facts concerning the alleged violations at the time that\nthey occurred, despite using reasonable diligence, because the possible violations occurred\nduring closed sessions.\nsubmitted this Request for Review to this office on\nNovember 13, 2018, which was within 60 days after the discovery of the alleged violations on\n\nOctober 16, 2018. Accordingly, this Request for Review was filed within the time limits set out\nin section 3. 5(a) of OMA, and this office has authority to review\n\nallegations.\n\nClosed Sessions\n\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018) provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2(c) of OMA. The section 2(c) exceptions are to be \" strictly construed, extending only to\n\nsubjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018.\nThe Board's response to this office explains that it held four closed session\n\ndiscussions \" to evaluate options to possibly relocate the West Branch and to [ sell] or lease the\n\nbuilding owned by the Library which currently houses the West Branch.\" 2 Those closed session\nmeetings occurred on January 24, 2018, March 28, 2018, July 25, 2018, and August 29, 2018.\n\nOn January 24, 2018, the Board entered closed session pursuant to section 2(c)(5) of OMA (5\nILCS 120/ 2(c)(5) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n2018), 3 and on the other three dates, it entered closed session pursuant to sections 2(c)(5),\n2 Letter from John Savage, President, Board of Library Trustees, Aurora Public Library, to Leah\nBartelt, Assistant Attorney General, Office of the Illinois Attorney General, Public Access Bureau (November 30,\n2018), at 2.\n\nBoard of Library Directors, Aurora (Illinois) Public Library, Meeting, January 24, 2018, Minutes\n\n2(c)(6), and 2(c)(21) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 31,\n2018). 4 The Board argues that all discussions it held during those meetings relating to the\n\npotential move of the West Branch and were authorized by sections 2(c)(5) and 2(c)(6). 5\nSections 2(c)(5) and 2(c)(6) of OMA allow public bodies to enter into closed\nsession to consider:\n\nThe purchase or lease of real property for the use of the\npublic body, including meetings held for the purpose of discussing\n5)\n\nwhether a particular parcel should be acquired.\n\n6)\n\nThe setting of a price for sale or lease of property owned\nby the public body.\nThe Illinois Appellate Court addressed the scope of section 2(c)(5) of OMA in\n\nGalena Gazette Publications Inc., v. County ofJo Daviess, 375 I11. App. 3d 338 (2d Dist. 2007),\n\nin which the public body held a closed session meeting held to discuss the possibility of leasing a\nspecific property for its use. There, the plaintiff conceded that the public body could permissibly\ndiscuss the material terms of the lease in closed session, but argued that the scope of section\n\n2(c)(5) did not extend to \" peripheral matters\" that were raised, such as how the public body\n\nwould utilize the leased space. Galena Gazette, 375 Ill. App. 3d at 344. The court disagreed,\n\nfinding that nothing in the language of section 2(c)(5) distinguishes \" material\" matters from\nperipheral ones. Galena Gazette, 375 I11. App. 3d at 344. The court added that it would be\nimpractical for the public body to have a meaningful discussion of the lease terms if it was\nprecluded from discussing related details needed to put the terms in context. Galena Gazette,\n375 Ill. App. 3d at 345. Because the public body's closed session discussion centered on\nconsiderations involving the potential lease, the court held that the discussion was proper under\nsection 2(c)(5). Galena Gazette, 375 Ill. App. 3d at 346.\nIn contrast, the scope of section 2(c)(6) limits a public body to discussing \"[ t] he\n\nsetting of a price for sale or lease\" of property that it owns. (Emphasis added.) Unlike section\n2(c)(5), the clear and unambiguous language of section 2(c)(6), which must be strictly construed,\ndoes not allow a public body to discuss the sale or lease of its property in closed session other\nBoard of Library Directors, Aurora (Illinois) Public Library, Meeting, March 28, 2018, Minutes\n5; Board of Library Directors, Aurora (Illinois) Public Library, Meeting, July 25, 2018, Minutes 5- 6; Board of\nLibrary Directors, Aurora (Illinois) Public Library, Meeting, August 29, 2018, Minutes 5.\nSection 2(c)(21) of OMA permits closed session discussion of the minutes of meetings lawfully\nclosed under OMA. At the three meetings at which it cited this exception, the Board held a short discussion that was\n\nthan to set a price. While section 2(c)(5) of OMA allows general closed session discussions\n\nconcerning the purchase or lease of real property for the use of the public body, neither it, nor\nsection 2(c)(6), authorizes general discussions regarding the sale or lease of its existing public\nproperty. See Ill. Att' y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 (Section\n2(c)(6) of OMA does \" not extend to the discussion of general issues concerning the disposal of\npublicly -owned property.\").\n\nIn his reply,\nnoted that the minutes from the Boards January 24, 2018,\nclosed session, which the Board recently made available to the public, fail to identify any\nparticular property that was discussed at the meeting, and fail to show that a proposed lease or\ncontract for purchase was presented to the Board.\nfurther states that the Library is\nrestricted from selling the West Branch without prior notice according to the terms of an\n\nintergovernmental agreement between the Library and the District. Therefore, he asserts, the\nBoard cannot discuss the setting of a price for the sale or lease of the West Branch prior to\ndeciding to terminate the intergovernmental\n\nagreement with the District, and closed session\n\ndeliberation about the termination of that agreement would be outside the scope of the cited\nexemptions.\n\nBased on this office's confidential review of the closed session recordings of each\n\nof the four meetings, the Board held lengthy discussions concerning the potential purchase or\n\nlease of real property for the use of the public body, including discussions as to whether specific\nparcels should be acquired or leased.\n\nof OMA.\n\nThese discussions were permissible under section 2(c)(5)\n\nargues that the information provided in the minutes of the Board's January\n\n24, 2018, closed session and in response to a FOIA request he submitted indicated that the Board\n\nwas not considering a specific lease or sale agreement during that meeting. However, nothing in\nthe language of section 2(c)(5) limits a public body from discussing a potential purchase or lease\nof property if the public body has not presented its members with proposed terms for an\nagreement.\n\nOur review of the four closed session recordings indicates that a significant portion\n\nof each meeting was devoted to discussing specific parcels of property for use by the Library,\nincluding the pros and cons of different parcels, the Library's anticipated uses of those parcels,\nand the financial terms of the transactions under consideration.\n\nAdditionally, our confidential review of the recordings from the March, July, and\nAugust closed sessions indicates that the Board also discussed at those meetings the setting of a\nprice for sale or lease of the building owned by the Library which currently houses the West\n\nBranch. These discussions were permissible under section 2(c)(6). Although\nargues\nthat the intergovernmental agreement between the Library and District restricts the Library's\nability to sell or lease the West Branch property, the recordings of the closed session meeting do\nnot document a deliberation over the possible termination of the intergovernmental agreement.\nFurther,\n\nsection\n\n2(c)(6) does not require\n\ncan enter closed session to discuss the setting of a price for sale or lease of property that the\npublic body owns.\nHowever, our review indicated that, for short portions of each of the four\n\nmeetings at issue, the Board held discrete discussions concerning the property currently housing\nthe West Branch that were not limited to the setting of a price for that property, along with some\nother matters related to the West Branch. We have thoroughly reviewed the arguments presented\nby the Board in the confidential portions of its written response to the Request for Review, and\ndisagree that the entireties of the closed session discussions during these four meetings\nconcerning the West Branch were authorized by either section 2(c)(5) or section 2(c)(6). Based\non the timers on the copies of the recordings provided to this office, the unauthorized\noccurred\n\ndiscussions\n\nat:\n\nJanuary 24, 2018, meeting: 3: 16- 4: 32 and 6: 57- 8: 54;\nMarch 28, 2018, meeting: 17: 54- 18: 30, 20: 03- 22: 10, 23: 34- 24: 13, and\n25: 36- 26: 39;\n\nJuly 25, 2018, meeting: 6: 03- 7: 31, 13: 20- 14: 44, and 20: 11- 20: 38;\n\nAugust 29, 2018, meeting: 16: 15- 17: 25, 19: 45- 22: 54, and 25: 44- 25: 53.\nAccordingly, this office concludes that the Board violated OMA by discussing\ncertain unauthorized topics in closed session during its January 24, 2018, March 28, 2018, July\n25, 2018, and August 29, 2018, meetings. To remedy these violations, this office asks that the\nBoard vote to release to the public the limited portions of these closed session recordings as\n\nlisted above. The remainder of the recordings may remain confidential unless the Board\ndetermines that the need for confidentiality no longer exists.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at (312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n55687\n\no 2c5 proper\n\nimproper 2c6 proper improper lib"}
{"id":1282,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-06-13","case_number":null,"request_numbers":["55795"],"title":"Chicago City Council violated OMA with insufficient November 14, 2018 meeting notice","filename":"55795, issued June 13, 2019.pdf","rel_path":null,"word_count":4734,"summary":"The PAC investigated a complaint alleging the Chicago City Council failed to provide proper and timely notice for its November 14, 2018, meeting. The PAC determined that the Council's notice procedures were insufficient under the Open Meetings Act.","plain_summary":"A citizen requested a review from the Illinois Attorney General's Public Access Bureau, alleging that the Chicago City Council failed to post a proper meeting agenda for its November 14, 2018, meeting. The Public Access Bureau concluded that the Council violated the Open Meetings Act because the notice of the meeting was insufficient. The document does not state that the PAC advised the Council to improve its practices or described the notice as confusing; it only found the notice insufficient.","holding":"The Chicago City Council violated the Open Meetings Act by failing to provide sufficient notice for its November 14, 2018, meeting.","legal_question":"Whether the Chicago City Council violated the Open Meetings Act by failing to provide proper and timely notice of its November 14, 2018, meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Chicago City Council","requesting_party":"Community Mental Health Board of Chicago","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy and accessibility of the Chicago City Council's meeting agenda postings.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/55795, issued June 13, 2019.pdf","sha256":"88e7f055016836c3913e3f1b8edb86f3d54342b2ce5a0acef3b38304987cb9d9","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","agenda","City Council","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune\n\n13, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Scott D. Spears\n\nCity of Chicago — Department of Law\nLegal Counsel Division\n[street address redacted for site publication -- see original PDF]\nscott. spears@cityofchicago.\nRE:\n\nDear\n\norg\n\nOMA Request for Review — 2018 PAC 55795\n\nand Mr. Spears:\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the City Council ( Council) of the City of Chicago ( City) violated the\nrequirements of OMA because notice of its November 14, 2018, meeting was insufficient.\nBACKGROUND\n\nOn November 20, 2018,\n\non behalf of the Community Mental\n\nHealth Board of Chicago, submitted a Request for Review to the Public Access Bureau alleging\nthat the Council violated OMA by failing to post a proper and timely meeting agenda for its\n\nNovember 14, 2018, meeting. According to\n\nthe Council typically posts its meeting\n\nagendas on both the City Clerk' s website) and the City' s Legislative Information Center ( Center)\n\nCity of Chicago Office of the City Clerk, Council News Central,\n\nhttp:// www. chicityclerk. com/ city- council- news- central ( last visited May 14, 2019).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 •' ITY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 2\n\nwebsite, 2 a separate online portal maintained by the City Clerk' s Office that houses Council\nrecords. She alleged that the agenda for the November 14, 2018, meeting was not posted on the\nCenter as of 24 hours in advance of the meeting, but that an incomplete agenda had been\n\navailable on the City Clerk' s website since at least November 11, 2018.\n\nstated that the\n\nCouncil did not post a copy of the meeting agenda on the Center until November 13, 2018,\n\nshortly after she e- mailed a Request for Review ( 2018 PAC 55684) 3 about that issue to this\noffice and copied the City Clerk and a City attorney.\n\nalso alleged that the Council\n\nadded an attachment to the agenda posted on the Center that had not been posted on the City\nClerk' s website, specifically \" Rule 41 Notifications\" listing five proposed budget and financial\n\nordinances; she noted that the Council later updated the City Clerk' s website.\ncontended that the Council violated sections 2. 02( a) and 2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( a),\nc) (\n\nWest 2016)).\n\nShe summarized her allegations as follows:\n\nThe November 14, 2018, City Council meeting agenda has\nno date or time actually displayed on the agenda ( although the date\nis included in the document file name and date and time are shown\n\non the City Clerk and Council Legislative Information Center\n\nwebsites). The Meeting Agenda displays the general order of\nbusiness but does not display the specific resolutions or ordinances\nunder consideration\n\nfor final action, although it does contain copies\n\nof various Committee agendas that display various resolutions and\nordinances. It is not clear whether the attachments are sufficient to\nfulfill the requirements under section 2. 02( c) of the OMA. The\nevidence indicates that on November 13, 2018, just 24 hours prior\n\nto its November 14, 2018 meeting, the Chicago City Council did\namend its published agenda by adding five ( 5) proposed\nordinances under the heading \" Rule 41 Notifications.\" On\n\nNovember 14, 2018, the Chicago City Council took final action on\nthese five ( 5) ordinances in violation of section 2. 02 [ of] the OMA.\n\nCitation.] 141\nCity of Chicago Office of the City Clerk, Legislative Information Center.\nhttps:// chicago. legistar. com/ ( last visited May 14, 2019).\n\nOn November 13, 2018,\nsubmitted a Request for Review ( 2018 PAC 55684) alleging\nthe Council failed to post a proper meeting agenda at least 48 hours in advance of its regular meeting that was\nscheduled for the next day. This office determined that no further action was warranted at that time because the\n\nallegation was premature in that it concerned a meeting that had not yet taken place. III. Att'y Gen. PAC Req. Rev.\nLtr. 55684, issued November\n\n15, 2018.\n\nLetter from\nPublic Access Counselor ( November\n\nCommunity Mental Health Board of Chicago. to Sarah Pratt, Illinois\n20, 2018).\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 3\n\nprovided this office with copies of the agendas with attachments that\n\nwere posted on the Center and City Clerk' s website for this office' s review. She also referenced\nthis office' s determination\n\nin 2017 PAC 50479, which concerned similar OMA allegations\n\nagainst the Council.'\n\nOn November 30, 2018, this office forwarded a copy of the Request for Review to\nthe City Clerk and asked the Council or its representative to respond in writing to\nallegations. In particular, this office asked the Council whether it had posted an amended agenda\n\nfor its November 14, 2018, meeting and, if so, when it was posted. This office also asked the\nCouncil if its website was maintained by full- time staff. Additionally. this office asked the\nCouncil to provide copies of the meeting agenda ( original and amended, if applicable) and\nminutes of the meeting in question. On December 21, 2018, this office received the requested\nmaterials. On that same date, this office forwarded a copy of the Council' s response to\n\nShe submitted what she indicated was a partial reply on January 4. 2019, 6 but on March 11,\n2019, indicated that she would be adding nothing further.'\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 ( West 2016). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 III. App. 3d 161, 171 ( 5th Dist. 1989).\nSection 2. 02( a) of OMA provides, in pertinent part:\n\nAn agenda for each regular meeting shall be posted at the principal\noffice of the public body and at the location where the meeting is\nto be held at least 48 hours in advance of the holding of the\n\nmeeting. A public body that has a website that the full- time staff of\n\n5111. Att'y Gen. PAC Req. Rev. Ltr. 50479, issued February 8, 2018 ( concluding that the Chicago\nCity Council failed to post a proper agenda 48 hours before its November 15, 2017, meeting).\n\n6E -mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nJanuary 4, 2019) (\" We will send our full reply on Monday.\").\n7E - mail from\ncase?\").\n\nto AAG Lim ( March 11, 2019) (\" Have you completed your review of this\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 4\n\nthe public body maintains shall also post on its website the agenda\nof any regular meetings of the governing body of that public body.\nSection 2. 02( c) of OMA adds:\n\nThe public body conducting a public meeting shall ensure that at\nleast one copy of any requested notice and agenda for the meeting\nis continuously available for public review during the entire 48hour period preceding the meeting. Posting of the notice and\n\nagenda on a website that is maintained by the public body satisfies\nthe requirement for continuous posting under this subsection ( c).\nSection 2. 02( c) of OMA further provides that \"[ a] ny agenda required under this\nSection shall set forth the general subject matter of any resolution or ordinance that will be the\nsubject\n\nof\n\nfinal action\n\nat\n\ngeneral subject matter.\"\n\nthe meeting.\" (\n\nEmphasis added.)\n\nOMA does not define the term\n\nHowever, the Senate debate on House Bill No. 4687, which added\n\nsection 2. 02( c) to OMA as part of Public Act 97- 827, effective January 1, 2013, indicates that the\n\nGeneral Assembly intended this provision to ensure that agendas provide general notice of all\nmatters upon which a public body would be taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what' s going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. ( Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\n\nEven before the addition of section 2. 02( c), however, it was clear that entirely\ngeneralized agenda items such as \" New Business\" ( or \" Unfinished Business\") did not provide\n\nsufficient advance notice to take final action on any particular resolutions or ordinances.\n\nRice r.\n\nBoard of Trustees of Adams County, 326 III. App. 3d 1120, 1123 ( 4th Dist. 2002) ( agenda item\nNEW BUSINESS\" did not provide sufficient advance notice of public body's vote on a\nresolution providing for an alternative benefit program for elected county officers). The Public\nAccess Bureau has previously determined that \" the General Assembly' s use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\nspecific details, of an item on which the public\nbody intends to take final action.\" Ill. Atfy Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 ( determining that voting to sign a\n\n\fMr. Scott Spears.\nJune\n\n13,\n\n2019\n\nPage 5\n\nnew city administrator to a five year contract under the agenda item \" Appointment of the City\nAdministrator\"\n\ndid not violate section 2. 02( c) of OMA).\n\nIn its response to this office, the Council denied\nclaim that it did not\nadhere to the notice and posting requirements of sections 2.02( a) and 2. 02( c) of OMA, asserting\nthat it had \" complied with both sections by posting its agenda outside the City Council chambers,\nin the office of the City Clerk, and on the City Clerk' s website more than 48 hours in advance of\n\nthe November 14, 2018 meeting.\" s The Council stated that it \" does not have its own website.\nHowever, the City Clerk has a website upon which she posts meeting notices. agendas, minutes,\n\nand legislation.\" 9 The Council confirmed that the City Clerk has full- time staff who share the\ntask of maintaining the website. According to the Council, the meeting agenda was posted on\nthe City Clerk' s website on November 9, 2018.\nAddressing the \" Rule 41 Notifications.\" the Council noted that\n\nhad\n\nalleged in her previous Request for Review ( 2018 PAC 55684) that the Council' s scheduled\n\nNovember 14, 2018, meeting agenda did not sufficiently identify all matters that were under\n\nconsideration for final action on that date. Specifically,\nhad contended that items\npertaining to the City' s 2019 budget, which the Council had mentioned at its November 7, 2018,\nmeeting, were not included in the November 14, 2018, meeting agenda. The Council argued that\nthese items were on the agenda for the November 14, 2018 meeting as ' Unfinished Business'\n\nand noticed up to be heard under Rule 41 of the City Council' s Rules of Order and Procedure.\" 10\nIn addition, the Council stated that \" the Rule 41 notice\" and the texts of the ordinances to be\n\nconsidered pursuant to that rule were posted on the City Clerk' s website under the label \" Rule 41\nNotifications.\"'\nThe Council provided what appears to be a screenshot from the City Clerk' s\n\nwebsite with the heading:\nCity Council\nDate: November\n\n14, 2018\n\nCity Council Meeting: 10: 00 a. m.\nLetter from Scott D. Spears, Assistant Corporation Counsel. City of Chicago. Department\nto Teresa Lim, Assistant Attorney General, Public Access Bureau ( December 21. 2018).\n\nof Law.\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago. Department\nto Teresa Lim, Assistant Attorney General, Public Access Bureau ( December 21, 2018).\n\nof Law,\n\n10Letter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department\n\nof\n\nLaw, to Teresa Lim, Assistant Attorney General. Public Access Bureau ( December 21. 2018).\nLetter from Scott D. Spears, Assistant Corporation Counsel. City of Chicago,\nLaw, to Teresa Lim, Assistant Attorney General, Public Access Bureau ( December 21. 2018).\n\nDepartment of\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 6\n\nLocation: City Council Chambers\n\nCity Hall - 121 N LaSalle St.\n\nMeeting Agenda1' 21\nThe term \" Meeting Agenda\" in this heading contains a hyperlink. Below, there are three separate\nsections\n\nfor: \" Rule 41 Notifications,\" \"\n\nFind Legislation &\n\nMeeting Information,\" and \" Proposed\n\n2019 Chicago City Budget.\" 13 In the following text of the \" Rule 41 Notifications\" section, the\nwords \" Notice\" and \" ordinances\"\n\ncontain hyperlinks:\n\nNotice of intent to call up for consideration various action\ndeferred ordinances regarding 2019 Annual Appropriation\nOrdinance,\n\ntax and revenue matters, and organization\n\nand\n\njurisdiction of various city departments.) 141\nThe Council stated that after receiving notice of\n\nprevious Request for\n\nReview, it \" opted to include the Rule 41 items with the remaining agendized items and republish the agenda, out of an abundance of caution and out of concern that\nwas not\nable to locate the Rule 41 items. i15 The Council contended it \" did not publish an agenda with\n\nnew items less than 48 hours before the meeting, but instead reformatted the document entitled\nMeeting Agenda' to include the previously -published Rule 41 items. i16 The Council stated that\nin the future, it would \" include any Rule 41 items with other agendized matters, in addition to\nseparately identifying the Rule 41 items on the City Clerk' s website. i17\n\nLaw, to Teresa\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago. Department\nLim, Assistant Attorney General, Public Access Bureau ( December 21, 2018).\n\nof\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department of\nLaw, to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau ( December 21, 2018).\n\n14Letter from Scott D. Spears,\n\nAssistant Corporation Counsel, City of Chicago, Department\n\nLaw, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau ( December 21, 2018).\n\nLaw, to Teresa\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department\nLim, Assistant Attorney General, Public Access Bureau ( December 21. 2018).\n\nof\n\nof\n\n16Letter from Scott D. Spears, Assistant Corporation Counsel. City of Chicago, Department of\nLaw, to Teresa Lim, Assistant Attorney General, Public Access Bureau ( December 21, 2018).\nLetter from Scott D. Spears, Assistant\n\nCorporation Counsel, City of Chicago, Department of\n\nLaw, to Teresa Lim, Assistant Attorney General, Public Access Bureau ( December 21, 2018).\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 7\n\nIn reply to that answer,\nmaintained that the Council' s November 14,\n2018, meeting agenda did not sufficiently identify the subject matter of each ordinance and\nresolution that was the subject of final action at the meeting. She stated:\nWe did not recognize the \" Rule 41 Notifications\" link on\n\nthe Clerk' s \" Attending/ Watching City Council Meetings\"\nwebpage] as part of the Meeting Agenda. We were looking for the\nMeeting Agenda. The \" Attending/ Watching City Council\nMeetings\" page [ the Council' s attorney] excerpts in his response is\n\nnot the meeting agenda. 1181\nShe contended that \"[ t] here is no reason to expect that someone looking to view the agenda\nwould know to stop and check the link to ' Rule 41 Notifications' and automatically know that\n\nthese are part of the Meeting Agenda. i19\nargued that the 2019 Annual Appropriation\nOrdinance \" should have been plainly listed\" as an agenda item, \" not merely listed in an\n\nattachment included 24 hours before the meeting.\" 20 Additionally,\n\ndisputed the\n\nCouncil' s claim that it had properly posted the agenda at the City Clerk' s office and outside the\nCouncil' s chambers.\n\nShe alleged that \" the staff in the Clerk' s Council Division Office in Room\n\n107 said that they do not post the agenda there. Instead, a copy of the agenda and meeting notices\nare in a binder should someone ask to see them. i21 She also alleged that the meeting agenda\n\nposted outside the City Council' s chambers did not include the attachments, and stated that \" City\nHall staff consistently referenced the City Clerk' s website as the go -to -place to locate complete\n\nCouncil meeting agendas, notices, etc.\" 22\nAs discussed above, section 2. 02( a) of OMA provides that a public body that has\na website maintained by full- time staff must post on its website the agendas of any regular\nmeetings of its\ngoverning body. According to the City Clerk' s website, \"[ t] he City Clerk is the\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\n21E - mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\n22E - mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nJanuary 4, 2019).\n\nJanuary 4, 2019).\n\nJanuary 4, 2019).\n\nJanuary 4, 2019).\n\nJanuary 4, 2019).\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 8\n\nofficial record keeper for the City Council and the designated repository for city documents.\" 23\nAlthough the Council contended that it \" does not have its own website,\" it is clear that the City\n\nClerk is the Council' s record keeper and is responsible for maintaining the Council' s meeting\nmaterials online, including the posting of the Council' s meeting agendas and minutes. Because\nthe Council is the governing body of the City, and the City Clerk has full- time staff who\nmaintain the Council' s meeting materials on a City website, this office concludes that the Council\nis subject to the online posting requirement of section 2. 02( a).\n\nThis office has reviewed the meeting agenda that was posted on the City Clerk' s\nwebsite on November 9, 2018. The agenda lists 18 items reflecting the standard order of\nbusiness for regular Council meetings. Item 9 of the agenda states:\n\n9. Reports of Standing Committees.**\n\nStanding committee chairmen report out to the full City Council\nthe recommendations of the membership on matters under their\n\nconsideration. Joint committees comprising two or more standing\ncommittees also report their recommendations at this time.\n\nThe committee agendas/ reports posted on the Chicago City\n\nCouncil Calendar( link is external) list the items that may be called\nfor a vote at the City Council meeting and are considered to be part\n\nof the City Council meeting agenda. ( Emphasis in original.) I24I\nAdditionally, Item 14 of the agenda provides:\n14. Unfinished\n\nBusiness.\n\nAldermen may request that the City Council call up for\nconsideration previously deferred items. Notification of intentions\nto consider such matter( s) must be given to all aldermen and must\n\nclearly identify the item intended to be called up for a vote.\nEmphasis in original.) 1251\n\nOffice of the City Clerk Anna M. Valencia, City of Chicago, About City Government & the\n\nChicago City Council, https:// www. chicityclerk. com/ city- council- news- central/ council- agenda# city_clerk ( last\nvisited\n\nApril\n\n26, 2019).\n\n24Chicago City Council, Agenda Item 9, Reports of Standing Committees ( undated).\n25Chicago City Council, Agenda Item 14, Unfinished Business (\n\nundated).\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 9\n\nAttached to the agenda are copies of seven meeting agendas from various committees of the\nCouncil. Those agendas list various resolutions and ordinances that were under consideration at\nthose committee meetings, which were each held on either November 9, 2018, or November 13.\n2018.\n\nIn 2017 PAC 50479, this office analyzed\n\nsimilar allegation that the\n\nCouncil failed to provide adequate notice in its November 15, 2017, meeting agenda of the items\nit was considering acting upon at that meeting. The agenda listed 18 items reflecting the\nCouncil' s standard order of business, like the agenda at issue here, but did not include copies of\n\nany committee agendas or reports; rather, it contained a footnote stating that \" committee\nagendas/ reports posted on the Chicago City Council Calendar list the items that may be called\nfor a vote at the City Council meeting and are considered to be part of the City Council meeting\nagenda.\" I11. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5. This office determined that the\nCouncil' s posting of its standard order of business did not provide sufficient notice to the public\nof the specific ordinances and resolutions it was considering acting upon, and, thus, that the\nCouncil violated OMA. 111. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5. This office explained\nthat the footnote was insufficient to incorporate any items from committee agendas/ reports, as\n\nthe Attorney General had issued a binding opinion26 concluding that a public body \" must comply\nwith DMA' s\nrequirements, including providing sufficient notice of the general subject\nmatter of any resolution or ordinance upon which final action may be taken at the [ public body' s]\n\nmeeting, without requiring reference to other documents to determine what matters the [ public\nbody] might address.\"\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5.\n\nWith respect to agenda attachments, in 2016 PAC 40305, this office considered\nwhether a school district provided sufficient notice of its final action to hire a football coach\nwhere additional\n\ninformation about the actions under consideration\n\nwas provided\n\nin an\n\nattachment to the meeting agenda rather than the agenda itself. In that matter, the school district\n\nhad attached to its meeting agenda an \" agenda packet\" containing additional details about the\npersonnel transactions to be reviewed at the meeting. 111. Att' y Gen. PAC Req. Rev. Ltr. 40305,\nissued June 2, 2016, at 4. The agenda at issue contained the following item: \" Seeking approval\n\nof the personnel reports provided and reviewed by the Board, which includes explanation for\nresignations,\n\nretirements, terminations,\n\nemployment,\n\ncontract revisions, and leave requests, as\n\npresented.\"\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 40305, at 4. The agenda packet contained the\n\nreferenced personnel reports, which provided certain specific details about the personnel\n\ntransactions. III. Att'y Gen. PAC Req. Rev. Ltr. 40305, at 4. This office determined that the\nschool district violated OMA because the personnel reports did not contain a reference to the\n\nhiring of the coach. 111. Att'y Gen. PAC Req. Rev. Ltr. 40305, at 4- 5; see also III. Att'y Gen.\nPAC Req. Rev. Ltr. 37503, issued April 8, 2016, at 5- 6, (\" A public\n\n6111. Att' y Gen. Pub. Acc.\n\nOp. No. 13- 002, issued April\n\nbody may not satisfy the\n\n16, 2013,\n\nat 5.\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 10\n\nrequirements of section 2. 02( c) by providing detailed information in an agenda packet, which\nmay consist of hundreds of pages from which the public is unable to readily discern final actions\nto be taken, when the agenda itself fails to identify the general subject matter of those final\nactions.\").\n\nIn this matter, the Council posted an agenda that is nearly identical in format to\nthe agenda examined\n\nmeeting agendas.\nattached.\n\nin 2017 PAC 50479, but this time attached to it copies of certain committee\n\nThe agenda itself provides no explanation of why those agendas were\n\nIndeed, item 9 of the agenda refers to the Council' s calendar and states that committee\n\nagendas/ reports posted on that calendar list the items that may be called for a vote at a Council\nmeeting; it does not refer the public to the attachments. To the extent the committee agendas\nincluded \" previously deferred items\" that agenda item 14 indicated the Council intended to take\nup, the Council' s agenda does not identify any items that were \" previously deferred\" or their\n\ngeneral subject matters. As\n\nhighlighted, the agenda makes no mention of any \" Rule 41\n\nNotifications\" or any other particular subject matters. Although the Council argued that agenda\nitem 14 was to be heard pursuant to \" Rule 41,\" it would not be evident to a member of the public\nwho has no specific knowledge of the Council' s rules of order and procedure that \" Unfinished\nBusiness\" pertains to matters considered under that rule. Moreover, a member of the public\n\nwould have to refer to the \" Rule 41 Notifications\" published separately on the Clerk' s website, at\n\nleast prior to November 13, 2018. The Council acknowledged that it did not include a copy of\nthe \" Rule 41 Notifications\" with the agenda until after it had received\ns November 13,\n2018, e- mail containing her previous Request for Review.\nThis office' s review of the agenda also confirmed that the agenda did not provide\n\nthe actual date of the meeting. Although a member of the public clicking through to the agenda\non the City Clerk' s website or the Center would be reasonably able to identify the date of the\nmeeting based on the meeting details provided in those locations, the available information\nsuggests that a person viewing a hard copy of the agenda at the Council' s chambers or at the City\nClerk' s office would not as easily be able to verify the date of the meeting by viewing the agenda\nalone.\n\nBecause the Council' s November 14, 2018, meeting agenda did not sufficiently\nidentify the general subject matter of each item it considered for final action during that meeting,\nthis office has determined that the Council failed to post an adequate agenda, online or at the\n\nrequired physical locations, at least 48 hours in advance of holding the meeting.\nThis office has reviewed the \" Meeting Details\" pertaining to the November 14,\n2018, meeting posted on the Center. The \" Meeting Details\" indicate that the Council took action\non a considerable number of resolutions and ordinances. In order to ensure transparency and\nclarity\n\nregarding its meetings, this office\n\nsuggests that the\n\nCouncil, at a minimum:\n\n\fMr. Scott Spears\nJune 13, 2019\nPage 11\n\n1) Provide the actual date of the meeting at the top of the first page of the meeting agenda;\n2) List the general subject matter of all subjects of final action in the body of the Council' s\nagenda, rather than attaching agendas of committee meetings and \" Rule 41 Notifications\";\n\n3) Ensure the meeting agenda and attachments are posted online, at the meeting location, and at\nthe Clerk' s Office ( rather than in a binder) at least 48 hours before the meeting.\nLastly, it appears that the Council posts its meeting agendas on both the\nhomepage of the City Clerk' s website and on the Center. OMA does not specify where on a\nwebsite, or on multiple websites, a public body must post its meeting agendas. Consequently, to\navoid further public confusion regarding where to obtain a complete version of the Council' s\nmeeting agendas, this office advises the Council to post the same information on each website.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n55795 o 202 notice improper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's meeting agenda postings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55795/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune\n\n13, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Scott D. Spears\n\nCity of Chicago — Department of Law\nLegal Counsel Division\n[street address redacted for site publication -- see original PDF]\nscott. spears@cityofchicago.\nRE:\n\nDear\n\norg\n\nOMA Request for Review — 2018 PAC 55795\n\nand Mr. Spears:\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS\n\n120/ 3. 5(e) (West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the City Council (Council) of the City of Chicago (City) violated the\nrequirements of OMA because notice of its November 14, 2018, meeting was insufficient.\nBACKGROUND\n\nOn November 20, 2018,\n\non behalf of the Community Mental\n\nHealth Board of Chicago, submitted a Request for Review to the Public Access Bureau alleging\nthat the Council violated OMA by failing to post a proper and timely meeting agenda for its\n\nNovember 14, 2018, meeting. According to\n\nthe Council typically posts its meeting\n\nagendas on both the City Clerk's website) and the City's Legislative Information Center (Center)\n\nCity of Chicago Office of the City Clerk, Council News Central,\n\nhttp:// www. chicityclerk. com/ city- council- news- central (last visited May 14, 2019).\n\nwebsite, 2 a separate online portal maintained by the City Clerk's Office that houses Council\nrecords. She alleged that the agenda for the November 14, 2018, meeting was not posted on the\nCenter as of 24 hours in advance of the meeting, but that an incomplete agenda had been\n\navailable on the City Clerk's website since at least November 11, 2018.\n\nstated that the\n\nCouncil did not post a copy of the meeting agenda on the Center until November 13, 2018,\n\nshortly after she e- mailed a Request for Review (2018 PAC 55684) 3 about that issue to this\noffice and copied the City Clerk and a City attorney.\n\nalso alleged that the Council\n\nadded an attachment to the agenda posted on the Center that had not been posted on the City\nClerk's website, specifically \" Rule 41 Notifications\" listing five proposed budget and financial\n\nordinances; she noted that the Council later updated the City Clerk's website.\ncontended that the Council violated sections 2. 02(a) and 2. 02(c) of OMA (5 ILCS 120/ 2. 02(a),\nc) (West 2016)).\n\nShe summarized her allegations as follows:\n\nThe November 14, 2018, City Council meeting agenda has\nno date or time actually displayed on the agenda (although the date\nis included in the document file name and date and time are shown\n\non the City Clerk and Council Legislative Information Center\n\nwebsites). The Meeting Agenda displays the general order of\nbusiness but does not display the specific resolutions or ordinances\nunder consideration\n\nfor final action, although it does contain copies\n\nof various Committee agendas that display various resolutions and\nordinances. It is not clear whether the attachments are sufficient to\nfulfill the requirements under section 2. 02(c) of the OMA. The\nevidence indicates that on November 13, 2018, just 24 hours prior\n\nto its November 14, 2018 meeting, the Chicago City Council did\namend its published agenda by adding five (5) proposed\nordinances under the heading \" Rule 41 Notifications.\" On\n\nNovember 14, 2018, the Chicago City Council took final action on\nthese five (5) ordinances in violation of section 2. 02 [ of] the OMA.\n\nCitation.] 141\nCity of Chicago Office of the City Clerk, Legislative Information Center.\nhttps:// chicago. legistar. com/ (last visited May 14, 2019).\n\nOn November 13, 2018,\nsubmitted a Request for Review (2018 PAC 55684) alleging\nthe Council failed to post a proper meeting agenda at least 48 hours in advance of its regular meeting that was\nscheduled for the next day. This office determined that no further action was warranted at that time because the\n\nallegation was premature in that it concerned a meeting that had not yet taken place. III. Att'y Gen. PAC Req. Rev.\nLtr. 55684, issued November\n\nprovided this office with copies of the agendas with attachments that\n\nwere posted on the Center and City Clerk's website for this office's review. She also referenced\nthis office's determination\n\nin 2017 PAC 50479, which concerned similar OMA allegations\n\nagainst the Council.'\n\nOn November 30, 2018, this office forwarded a copy of the Request for Review to\nthe City Clerk and asked the Council or its representative to respond in writing to\nallegations. In particular, this office asked the Council whether it had posted an amended agenda\n\nfor its November 14, 2018, meeting and, if so, when it was posted. This office also asked the\nCouncil if its website was maintained by full- time staff. Additionally. this office asked the\nCouncil to provide copies of the meeting agenda (original and amended, if applicable) and\nminutes of the meeting in question. On December 21, 2018, this office received the requested\nmaterials. On that same date, this office forwarded a copy of the Council's response to\n\nShe submitted what she indicated was a partial reply on January 4. 2019, 6 but on March 11,\n2019, indicated that she would be adding nothing further.'\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 (West 2016). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 III. App. 3d 161, 171 (5th Dist. 1989).\nSection 2. 02(a) of OMA provides, in pertinent part:\n\nAn agenda for each regular meeting shall be posted at the principal\noffice of the public body and at the location where the meeting is\nto be held at least 48 hours in advance of the holding of the\n\nmeeting. A public body that has a website that the full- time staff of\n\n5111. Att'y Gen. PAC Req. Rev. Ltr. 50479, issued February 8, 2018 (concluding that the Chicago\nCity Council failed to post a proper agenda 48 hours before its November 15, 2017, meeting).\n\n6E -mail from\n\nthe public body maintains shall also post on its website the agenda\nof any regular meetings of the governing body of that public body.\nSection 2. 02(c) of OMA adds:\n\nThe public body conducting a public meeting shall ensure that at\nleast one copy of any requested notice and agenda for the meeting\nis continuously available for public review during the entire 48hour period preceding the meeting. Posting of the notice and\n\nagenda on a website that is maintained by the public body satisfies\nthe requirement for continuous posting under this subsection (c).\nSection 2. 02(c) of OMA further provides that \"[ a] ny agenda required under this\nSection shall set forth the general subject matter of any resolution or ordinance that will be the\nsubject\n\nof\n\nfinal action\n\nat\n\ngeneral subject matter.\"\n\nthe meeting.\" (Emphasis added.)\n\nOMA does not define the term\n\nHowever, the Senate debate on House Bill No. 4687, which added\n\nsection 2. 02(c) to OMA as part of Public Act 97- 827, effective January 1, 2013, indicates that the\n\nGeneral Assembly intended this provision to ensure that agendas provide general notice of all\nmatters upon which a public body would be taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what's going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. (Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\n\nEven before the addition of section 2. 02(c), however, it was clear that entirely\ngeneralized agenda items such as \" New Business\" (or \" Unfinished Business\") did not provide\n\nsufficient advance notice to take final action on any particular resolutions or ordinances.\n\nRice r.\n\nBoard of Trustees of Adams County, 326 III. App. 3d 1120, 1123 (4th Dist. 2002) (agenda item\nNEW BUSINESS\" did not provide sufficient advance notice of public body's vote on a\nresolution providing for an alternative benefit program for elected county officers). The Public\nAccess Bureau has previously determined that \" the General Assembly's use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public\nbody intends to take final action.\" Ill. Atfy Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 (determining that voting to sign a\n\nnew city administrator to a five year contract under the agenda item \" Appointment of the City\nAdministrator\"\n\ndid not violate section 2. 02(c) of OMA).\n\nIn its response to this office, the Council denied\nclaim that it did not\nadhere to the notice and posting requirements of sections 2.02(a) and 2. 02(c) of OMA, asserting\nthat it had \" complied with both sections by posting its agenda outside the City Council chambers,\nin the office of the City Clerk, and on the City Clerk's website more than 48 hours in advance of\n\nthe November 14, 2018 meeting.\" s The Council stated that it \" does not have its own website.\nHowever, the City Clerk has a website upon which she posts meeting notices. agendas, minutes,\n\nand legislation.\" 9 The Council confirmed that the City Clerk has full- time staff who share the\ntask of maintaining the website. According to the Council, the meeting agenda was posted on\nthe City Clerk's website on November 9, 2018.\nAddressing the \" Rule 41 Notifications.\" the Council noted that\n\nhad\n\nalleged in her previous Request for Review (2018 PAC 55684) that the Council's scheduled\n\nNovember 14, 2018, meeting agenda did not sufficiently identify all matters that were under\n\nconsideration for final action on that date. Specifically,\nhad contended that items\npertaining to the City's 2019 budget, which the Council had mentioned at its November 7, 2018,\nmeeting, were not included in the November 14, 2018, meeting agenda. The Council argued that\nthese items were on the agenda for the November 14, 2018 meeting as ' Unfinished Business'\n\nand noticed up to be heard under Rule 41 of the City Council's Rules of Order and Procedure.\" 10\nIn addition, the Council stated that \" the Rule 41 notice\" and the texts of the ordinances to be\n\nconsidered pursuant to that rule were posted on the City Clerk's website under the label \" Rule 41\nNotifications.\"'\nThe Council provided what appears to be a screenshot from the City Clerk's\n\nwebsite with the heading:\nCity Council\nDate: November\n\n14, 2018\n\nCity Council Meeting: 10: 00 a. m.\nLetter from Scott D. Spears, Assistant Corporation Counsel. City of Chicago. Department\nto Teresa Lim, Assistant Attorney General, Public Access Bureau (December 21. 2018).\n\nof Law.\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago. Department\nto Teresa Lim, Assistant Attorney General, Public Access Bureau (December 21, 2018).\n\nof Law,\n\n10 Letter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department\n\nLocation: City Council Chambers\n\nCity Hall - 121 N LaSalle St.\n\nMeeting Agenda1' 21\nThe term \" Meeting Agenda\" in this heading contains a hyperlink. Below, there are three separate\nsections\n\nfor: \" Rule 41 Notifications,\" \"\n\nFind Legislation &\n\nMeeting Information,\" and \" Proposed\n\n2019 Chicago City Budget.\" 13 In the following text of the \" Rule 41 Notifications\" section, the\nwords \" Notice\" and \" ordinances\"\n\ncontain hyperlinks:\n\nNotice of intent to call up for consideration various action\ndeferred ordinances regarding 2019 Annual Appropriation\nOrdinance,\n\ntax and revenue matters, and organization\n\nand\n\njurisdiction of various city departments.) 141\nThe Council stated that after receiving notice of\n\nprevious Request for\n\nReview, it \" opted to include the Rule 41 items with the remaining agendized items and republish the agenda, out of an abundance of caution and out of concern that\nwas not\nable to locate the Rule 41 items. i15 The Council contended it \" did not publish an agenda with\n\nnew items less than 48 hours before the meeting, but instead reformatted the document entitled\nMeeting Agenda' to include the previously -published Rule 41 items. i16 The Council stated that\nin the future, it would \" include any Rule 41 items with other agendized matters, in addition to\nseparately identifying the Rule 41 items on the City Clerk's website. i17\n\nLaw, to Teresa\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago. Department\nLim, Assistant Attorney General, Public Access Bureau (December 21, 2018).\n\nof\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department of\nLaw, to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau (December 21, 2018).\n\n14 Letter from Scott D. Spears,\n\nAssistant Corporation Counsel, City of Chicago, Department\n\nLaw, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau (December 21, 2018).\n\nLaw, to Teresa\n\nLetter from Scott D. Spears, Assistant Corporation Counsel, City of Chicago, Department\nLim, Assistant Attorney General, Public Access Bureau (December 21. 2018).\n\nof\n\nof\n\n16 Letter from Scott D. Spears, Assistant Corporation Counsel. City of Chicago, Department of\n\nIn reply to that answer,\nmaintained that the Council's November 14,\n2018, meeting agenda did not sufficiently identify the subject matter of each ordinance and\nresolution that was the subject of final action at the meeting. She stated:\nWe did not recognize the \" Rule 41 Notifications\" link on\n\nthe Clerk's \" Attending/ Watching City Council Meetings\"\nwebpage] as part of the Meeting Agenda. We were looking for the\nMeeting Agenda. The \" Attending/ Watching City Council\nMeetings\" page [ the Council's attorney] excerpts in his response is\n\nnot the meeting agenda. 1181\nShe contended that \"[ t] here is no reason to expect that someone looking to view the agenda\nwould know to stop and check the link to ' Rule 41 Notifications' and automatically know that\n\nthese are part of the Meeting Agenda. i19\nargued that the 2019 Annual Appropriation\nOrdinance \" should have been plainly listed\" as an agenda item, \" not merely listed in an\n\nattachment included 24 hours before the meeting.\" 20 Additionally,\n\ndisputed the\n\nCouncil's claim that it had properly posted the agenda at the City Clerk's office and outside the\nCouncil's chambers.\n\nShe alleged that \" the staff in the Clerk's Council Division Office in Room\n\n107 said that they do not post the agenda there. Instead, a copy of the agenda and meeting notices\nare in a binder should someone ask to see them. i21 She also alleged that the meeting agenda\n\nposted outside the City Council's chambers did not include the attachments, and stated that \" City\nHall staff consistently referenced the City Clerk's website as the go -to -place to locate complete\n\nCouncil meeting agendas, notices, etc.\" 22\nAs discussed above, section 2. 02(a) of OMA provides that a public body that has\na website maintained by full- time staff must post on its website the agendas of any regular\nmeetings of its\ngoverning body. According to the City Clerk's website, \"[ t] he City Clerk is the\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nE- mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\n21E - mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\n22E - mail from\n\nto AAG Lim, [ Scott] Spears, [ Jeffrey] Levine, and [ Peter] Polacek\n\nofficial record keeper for the City Council and the designated repository for city documents.\" 23\nAlthough the Council contended that it \" does not have its own website,\" it is clear that the City\n\nClerk is the Council's record keeper and is responsible for maintaining the Council's meeting\nmaterials online, including the posting of the Council's meeting agendas and minutes. Because\nthe Council is the governing body of the City, and the City Clerk has full- time staff who\nmaintain the Council's meeting materials on a City website, this office concludes that the Council\nis subject to the online posting requirement of section 2. 02(a).\n\nThis office has reviewed the meeting agenda that was posted on the City Clerk's\nwebsite on November 9, 2018. The agenda lists 18 items reflecting the standard order of\nbusiness for regular Council meetings. Item 9 of the agenda states:\n\n9. Reports of Standing Committees.**\n\nStanding committee chairmen report out to the full City Council\nthe recommendations of the membership on matters under their\n\nconsideration. Joint committees comprising two or more standing\ncommittees also report their recommendations at this time.\n\nThe committee agendas/ reports posted on the Chicago City\n\nCouncil Calendar(link is external) list the items that may be called\nfor a vote at the City Council meeting and are considered to be part\n\nof the City Council meeting agenda. (Emphasis in original.) I24I\nAdditionally, Item 14 of the agenda provides:\n14. Unfinished\n\nBusiness.\n\nAldermen may request that the City Council call up for\nconsideration previously deferred items. Notification of intentions\nto consider such matter(s) must be given to all aldermen and must\n\nclearly identify the item intended to be called up for a vote.\nEmphasis in original.) 1251\n\nOffice of the City Clerk Anna M. Valencia, City of Chicago, About City Government & the\n\nChicago City Council, https:// www. chicityclerk. com/ city- council- news- central/ council- agenda# city_clerk (last\n\nAttached to the agenda are copies of seven meeting agendas from various committees of the\nCouncil. Those agendas list various resolutions and ordinances that were under consideration at\nthose committee meetings, which were each held on either November 9, 2018, or November 13.\n2018.\n\nIn 2017 PAC 50479, this office analyzed\n\nsimilar allegation that the\n\nCouncil failed to provide adequate notice in its November 15, 2017, meeting agenda of the items\nit was considering acting upon at that meeting. The agenda listed 18 items reflecting the\nCouncil's standard order of business, like the agenda at issue here, but did not include copies of\n\nany committee agendas or reports; rather, it contained a footnote stating that \" committee\nagendas/ reports posted on the Chicago City Council Calendar list the items that may be called\nfor a vote at the City Council meeting and are considered to be part of the City Council meeting\nagenda.\" I11. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5. This office determined that the\nCouncil's posting of its standard order of business did not provide sufficient notice to the public\nof the specific ordinances and resolutions it was considering acting upon, and, thus, that the\nCouncil violated OMA. 111. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5. This office explained\nthat the footnote was insufficient to incorporate any items from committee agendas/ reports, as\n\nthe Attorney General had issued a binding opinion26 concluding that a public body \" must comply\nwith DMA's\nrequirements, including providing sufficient notice of the general subject\nmatter of any resolution or ordinance upon which final action may be taken at the [ public body's]\n\nmeeting, without requiring reference to other documents to determine what matters the [ public\nbody] might address.\"\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 50479, at 5.\n\nWith respect to agenda attachments, in 2016 PAC 40305, this office considered\nwhether a school district provided sufficient notice of its final action to hire a football coach\nwhere additional\n\ninformation about the actions under consideration\n\nwas provided\n\nin an\n\nattachment to the meeting agenda rather than the agenda itself. In that matter, the school district\n\nhad attached to its meeting agenda an \" agenda packet\" containing additional details about the\npersonnel transactions to be reviewed at the meeting. 111. Att' y Gen. PAC Req. Rev. Ltr. 40305,\nissued June 2, 2016, at 4. The agenda at issue contained the following item: \" Seeking approval\n\nof the personnel reports provided and reviewed by the Board, which includes explanation for\nresignations,\n\nretirements, terminations,\n\nemployment,\n\ncontract revisions, and leave requests, as\n\npresented.\"\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 40305, at 4. The agenda packet contained the\n\nreferenced personnel reports, which provided certain specific details about the personnel\n\ntransactions. III. Att'y Gen. PAC Req. Rev. Ltr. 40305, at 4. This office determined that the\nschool district violated OMA because the personnel reports did not contain a reference to the\n\nhiring of the coach. 111. Att'y Gen. PAC Req. Rev. Ltr. 40305, at 4- 5; see also III. Att'y Gen.\nPAC Req. Rev. Ltr. 37503, issued April 8, 2016, at 5- 6, (\" A public\n\nrequirements of section 2. 02(c) by providing detailed information in an agenda packet, which\nmay consist of hundreds of pages from which the public is unable to readily discern final actions\nto be taken, when the agenda itself fails to identify the general subject matter of those final\nactions.\").\n\nIn this matter, the Council posted an agenda that is nearly identical in format to\nthe agenda examined\n\nmeeting agendas.\nattached.\n\nin 2017 PAC 50479, but this time attached to it copies of certain committee\n\nThe agenda itself provides no explanation of why those agendas were\n\nIndeed, item 9 of the agenda refers to the Council's calendar and states that committee\n\nagendas/ reports posted on that calendar list the items that may be called for a vote at a Council\nmeeting; it does not refer the public to the attachments. To the extent the committee agendas\nincluded \" previously deferred items\" that agenda item 14 indicated the Council intended to take\nup, the Council's agenda does not identify any items that were \" previously deferred\" or their\n\ngeneral subject matters. As\n\nhighlighted, the agenda makes no mention of any \" Rule 41\n\nNotifications\" or any other particular subject matters. Although the Council argued that agenda\nitem 14 was to be heard pursuant to \" Rule 41,\" it would not be evident to a member of the public\nwho has no specific knowledge of the Council's rules of order and procedure that \" Unfinished\nBusiness\" pertains to matters considered under that rule. Moreover, a member of the public\n\nwould have to refer to the \" Rule 41 Notifications\" published separately on the Clerk's website, at\n\nleast prior to November 13, 2018. The Council acknowledged that it did not include a copy of\nthe \" Rule 41 Notifications\" with the agenda until after it had received\ns November 13,\n2018, e- mail containing her previous Request for Review.\nThis office's review of the agenda also confirmed that the agenda did not provide\n\nthe actual date of the meeting. Although a member of the public clicking through to the agenda\non the City Clerk's website or the Center would be reasonably able to identify the date of the\nmeeting based on the meeting details provided in those locations, the available information\nsuggests that a person viewing a hard copy of the agenda at the Council's chambers or at the City\nClerk's office would not as easily be able to verify the date of the meeting by viewing the agenda\nalone.\n\nBecause the Council's November 14, 2018, meeting agenda did not sufficiently\nidentify the general subject matter of each item it considered for final action during that meeting,\nthis office has determined that the Council failed to post an adequate agenda, online or at the\n\nrequired physical locations, at least 48 hours in advance of holding the meeting.\nThis office has reviewed the \" Meeting Details\" pertaining to the November 14,\n2018, meeting posted on the Center. The \" Meeting Details\" indicate that the Council took action\non a considerable number of resolutions and ordinances. In order to ensure transparency and\n\n1) Provide the actual date of the meeting at the top of the first page of the meeting agenda;\n2) List the general subject matter of all subjects of final action in the body of the Council's\nagenda, rather than attaching agendas of committee meetings and \" Rule 41 Notifications\";\n\n3) Ensure the meeting agenda and attachments are posted online, at the meeting location, and at\nthe Clerk's Office (rather than in a binder) at least 48 hours before the meeting.\nLastly, it appears that the Council posts its meeting agendas on both the\nhomepage of the City Clerk's website and on the Center. OMA does not specify where on a\nwebsite, or on multiple websites, a public body must post its meeting agendas. Consequently, to\navoid further public confusion regarding where to obtain a complete version of the Council's\nmeeting agendas, this office advises the Council to post the same information on each website.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n55795 o 202 notice improper\n\nmun"}
{"id":1283,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-06-11","case_number":null,"request_numbers":["55832"],"title":"Elmhurst School Board did not violate OMA by discussing non-agenda items without final action","filename":"55832, issued June 11, 2019.pdf","rel_path":null,"word_count":2073,"summary":"A requester alleged that the Elmhurst Community Unit School District 205 Board of Education violated the Open Meetings Act by taking final action on items not listed on its meeting agenda. The PAC determined that the Board's discussion did not constitute final action and therefore no violation occurred.","plain_summary":"A citizen complained that a school board discussed and voted on items during a meeting that were not listed on the public agenda. The Attorney General's office investigated and found that while the board did discuss these items, they did not reach a formal decision or take any binding action. Because no final action was taken, the board did not break the law.","holding":"The Board of Education did not violate the Open Meetings Act because the discussion of items not on the agenda did not result in a final action.","legal_question":"Whether the Board of Education violated section 2.02(c) of the Open Meetings Act by taking final action on items not included on the meeting agenda.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of Elmhurst Community Unit School District 205","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The board discussed belief statements and resolutions for an association meeting that were not explicitly listed on the published agenda.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/55832, issued June 11, 2019.pdf","sha256":"4438fab95ec538ed053b9ec8b86463f2753ff1ab89a32cbad407cd09b5fa8db3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","final action","school board","open meetings act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 11, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Jackie Wernz\n\nFranczek Radelet\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\njfw@franczek. com\n\nRE: OMA Request for Review —2018 PAC 55832\nDear\n\nand Ms. Wernz:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Education ( Board) of Elmhurst Community Unit School District 205\nSchool District) did not violate the requirements of OMA during its November 13, 2018,\nmeeting.\n\nOn November 24, 2018,\n\nsubmitted this Request for Review\n\nalleging that the Board violated OMA at its meeting on November 13, 2018, by taking final\n\naction on items that were not listed on the agenda in violation of section 2. 02( c) of OMA (5\n\nILCS 120/ 2. 02( c) ( West 2016)).\n\nSpecifically,\n\nalleged that \" the Board decided on belief\n\nstatements\nand resolutions for an upcoming meeting of the Illinois Association of School Boards\nIASB)\nwithout\n\nplacing those items on the agenda[.]\"\n\nI On November 29, 2018, this office\n\nforwarded a copy of the Request for Review to the Board and asked it to provide a detailed\nLetter from\n\nNovember 24, 2018).\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100South\nWest Randolph Ave.,\nStreet,Carbondale,\nChicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601\n\nUniversity\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMs. Jackie Wernz\nJune 11, 2019\nPage 2\n\nwritten response to\n\nallegations, together with copies of the agenda, minutes, and any\n\naudio or video recordings of the November 13, 2018, meeting. On December 21, 2018, an\nattorney representing the Board provided the requested materials. On December 26, 2018, this\n\noffice forwarded a copy of the Board's response to\n\nhe did not reply to that response. 2\n\nIn its response to this office, the Board asserted that it \"did not take final action on\nbelief statements or resolutions at the November 13 meeting, or even take a vote or gain general\nBoard consensus on the statements and resolutions at issue. i3 Instead, the Board stated, its\nintention was merely to discuss the resolutions and statements in light of significant public\ninterest in the resolution about arming teachers in schools. The Board explained that although it\n\nseemed to be considering a vote on the IASB proposals\" in comments both prior to and during\n\nthe meeting, Board member John McDonough \" put the Board back on track to only have a\n\ndiscussion\" by stating that \"procedurally, we don't have an agenda item for voting.i4 The Board\nalso asserted that \" although Board member McDonough stated that\" Dr. Margaret Harrell, the\n\nVice President of the Board who would serve as the School District's representative at the IASB\nconference, \" could ' gather the consensus from the responses' of the Board members, a review of\n\nthe video of\nthe meeting establishes that there was no consensus reached on any of the IASB\ndiscussed\n\nproposals\n\nby the Board.\n\ni5\n\nAdditionally, the Board asserted that Dr. Harrell was\n\npermitted to exercise her own discretion at the conference and \" was not bound by any of the\nopinions she received at the meeting. i6\n\nIn his correspondence to this office,\n\nincluded a copy of an e- mail Dr.\n\nHarrell sent to the rest of the Board on November 13, 2018, which stated:\n\nAttached is a summary of the information that must be\ndecided during the Board Communication portion of tonight' s\nmeeting for the IASB Process.\n\n21-lowever,\n\ndid send this office a supplement to his Request for Review on December 17,\n\n2018, before the Board had submitted its response. In this determination, this office took into account all\ninformation received regarding this matter.\n\n3Letter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau (December 21, 2018), at 1.\n\nLetter from Jackie Wemz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau ( December 21, 2018), at 3.\n\nLetter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau ( December 21, 2018), at 3.\n\nLetter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau ( December 21, 2018), at 4.\n\n\fMs. Jackie Wernz\nJune 11, 2019\nPage 3\n\nIncluded in this attachment is the \" voting ballot\" and the\ndescription of issues being decided. Please review the attached and\nbe prepared to \" vote\" on each of the 8 statements?'\n\nalleged that at the November 13, 2018, meeting, Dr. Harrell \" describe[ d] each of the\n\nbelief statements and resolutions, and asked the Board to vote on those matters, so that she may\nact accordingly during the conference. i8\nfurther alleged that \" Board members expressed\nopinions to help arrive at a consensus and make a recommendation to Dr. Harrell on whether to\n\nvote ' yes' or no' at the conference. i9 He argued that \"[ elven though the Board purposefully\navoided the appearance\nof voting, this method of arriving at a consensus should still be construed\n10\nas '\n\nfinal action'.\"\n\nIn other words, \"[\n\nw] hile not framed as a formal ' vote', giving ' direction' to the\n\ndelegate seems akin to final action on a Board resolution.\" 11\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nSection 2. 02( c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject\nof\n\nfinal action at the meeting.\" ( Emphasis added.)\n\nOMA does not define \" final action,\" and no\n\nIllinois court has precisely defined that term. Illinois courts have indicated, however, that \" final\n\naction\" generally must bring a matter to a resolution. Compare Davis v. Board ofEducation of\n\nFarmer City —Mansfield Community Unit School District No. 17, 63 Ill. App. 3d 495, 499 ( 4th\nDist. 1978) ( adoption of resolution in closed session stating tentative intent to terminate\nsuperintendent' s employment \" did not dispose of the question of whether that employment\nE- mail from Margaret Harrell to boe@elmhurst205. org ( November 13, 2018).\nNovember\n\nLetter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n9Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n10Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nLetter from\n\nto Leo Draws, Assistant Attorney General, Public Access Bureau, Office\n\n24, 2018), at 1.\n\nNovember 24, 2018), at 2.\n\nNovember 24, 2018), at 2.\n\nof the Attorney General ( December 17, 2018), at 2.\n\n\fMs. Jackie Wernz\nJune 11, 2019\nPage 4\n\nshould\n\nbe terminated\n\nand,\n\ntherefore,\n\nwas not\n\nfinal action[,]\"\n\nwhere board subsequently took final\n\naction to terminate the superintendent' s employment in open session); with Kosoglad v. Porcelli,\n\n132 Ill. App. 3d 1081, 1092 ( 1st Dist. 1985) ( vote to remove commissioner from police board in\n\nopen session was final action). The fact that the agenda for the November 13, 2018, meeting did\nnot contain any items concerning belief statements or resolutions at issue at the IASB conference\nis not disputed. Therefore, this office' s determination hinges on whether the Board took \" final\naction\" on matters related to the IASB conference.\n\nThis office' s review of the video recording of the Board' s November 13, 2018,\nmeeting confirmed that Dr. Harrell initially asked the Board to \" vote\" on six issues that would be\n\non the table at the IASB conference. l2 When Dr. Harrell asked for the vote of each member on\nthe first belief statement, however, Board member McDonough indicated that a vote would be\nimproper, stating: \" Just procedurally,\nprobably\n\nyou can\n\ngather\n\ndon' t have an agenda\n\nwe\n\nthe consensus from the responses * * *\n\nfor voting on here * * *\n\nso\n\nbut we' ll be as clear as we\n\ncan.i13 Dr. Harrell responded: \" So I appreciate that, um, so while we can' t vote, there needs to\nbe a vote that is... I will be assessing,\nsaying, and I will vote accordingly.\n\nso\n\nbased off your comments...\n\nI will decide what you' re\n\ni14 In response to an ensuing question from a Board member\n\nseeking clarification about the belief statements, Dr. Harrell explained that in light of public\n\nfeedback to the Board about the IASB resolution on arming teachers, \" there needs to be a\ndiscussion, and based off that discussion * * *\nthat will be based off the consensus of this\n\nI need to go and place a vote one way or the other,\n\nmeeting. i15 After Dr. Harrell read each IASB items,\n\none or more Board members responded generally, noting the Board' s present policies. On some\nstatements and resolutions there was not much discussion, though some Board members did give\n\nunequivocal stances on how they believed Dr. Harrell should proceed at the conference,\n\nincluding all six of the Board members other than Dr. Harrell on the resolution about arming\nteachers. Dr. Harrell did not expressly give her opinion on any of the IASB proposals.\n\nBecause Dr. Harrell asked the Board to vote and the Board specifically declined\nto vote because the IASB conference issues were not on the agenda, the requester and the public\n\n1° Elmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube ( Nov. 18, 2018),\nhttps:// www. youtube. com/ watch? v= bgDnm58DHs, at 1: 44: 56.\n\n13Elmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube ( Nov. 18, 2018),\nhttps:// www. youtube. com/ watch? v= bgDnrn58DHs, at 1: 47: 05.\n\nElmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube ( Nov. 18, 2018),\nhttps:// www.youtube. com/ watch?v= bgDnrn58DHs, at 1: 47: 25.\n\n15Elmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube ( Nov. 18, 2018),\n\nhttps:// www.youtube.\n\ncom/ watch? v= bgDnm58DHs;\n\nat\n\n1: 48: 27.\n\n\fMs. Jackie Wernz\nJune 11, 2019\nPage 5\n\nmay have been left with the impression that the ensuing discussion was improper. Although Dr.\nHarrell requested that the Board vote on the six issues she presented so that she would have\nclear direction for representing the Board at the IASB conference, it is clear that no vote was\n\nrequired and none was taken. \" Without the public vote, no final action has occurred.\" Board of\nEducation of Springfield School District No. 186 v. Attorney General, 2017 IL 120343, ¶ 74, 77\nN.E.3d 625, 638 ( 2017).\n\nsuggests that even without a vote, the Board's expression of\n\nopinions and direction to Dr. Harrell was final action, which violated OMA because there was no\n\ncorresponding agenda item. However, Board members mostly provided only brief, limited\ncomments on the belief statements. Those expressions of opinions by individual Board members\ndid not definitively establish a consensus or manifest a collective decision that amounted to a\n\nfinal action\" by the full Board. No matter was resolved during that portion of meeting, and\nnothing discussed with respect to the six beliefs and resolutions was final or binding on the\nBoard. Because the Board simply discussed matters not on the agenda during the open session\nof its November 13, 2018, meeting, and no final action was taken, the Board did not violate\nsection 2. 02( c) of OMA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at ( 217) 782- 1699, ldraws@atg. state. il.us, or the Springfield\naddress on the bottom of the first page of this letter.\n\nVery truly yours,\n\nLEO DRAWS\n\nAssistant Attorney General\nPublic Access Bureau\n55832\n\no\n\n202 notice proper no final action\n\nsd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Discussion of unlisted belief statements and resolutions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55832/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 11, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Jackie Wernz\n\nFranczek Radelet\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\njfw@franczek. com\n\nRE: OMA Request for Review —2018 PAC 55832\nDear\n\nand Ms. Wernz:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Education (Board) of Elmhurst Community Unit School District 205\nSchool District) did not violate the requirements of OMA during its November 13, 2018,\nmeeting.\n\nOn November 24, 2018,\n\nsubmitted this Request for Review\n\nalleging that the Board violated OMA at its meeting on November 13, 2018, by taking final\n\naction on items that were not listed on the agenda in violation of section 2. 02(c) of OMA (5\n\nILCS 120/ 2. 02(c) (West 2016)).\n\nSpecifically,\n\nalleged that \" the Board decided on belief\n\nstatements\nand resolutions for an upcoming meeting of the Illinois Association of School Boards\nIASB)\nwithout\n\nplacing those items on the agenda[.]\"\n\nI On November 29, 2018, this office\n\nforwarded a copy of the Request for Review to the Board and asked it to provide a detailed\nLetter from\n\nNovember 24, 2018).\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nwritten response to\n\nallegations, together with copies of the agenda, minutes, and any\n\naudio or video recordings of the November 13, 2018, meeting. On December 21, 2018, an\nattorney representing the Board provided the requested materials. On December 26, 2018, this\n\noffice forwarded a copy of the Board's response to\n\nhe did not reply to that response. 2\n\nIn its response to this office, the Board asserted that it \"did not take final action on\nbelief statements or resolutions at the November 13 meeting, or even take a vote or gain general\nBoard consensus on the statements and resolutions at issue. i3 Instead, the Board stated, its\nintention was merely to discuss the resolutions and statements in light of significant public\ninterest in the resolution about arming teachers in schools. The Board explained that although it\n\nseemed to be considering a vote on the IASB proposals\" in comments both prior to and during\n\nthe meeting, Board member John McDonough \" put the Board back on track to only have a\n\ndiscussion\" by stating that \"procedurally, we don't have an agenda item for voting.i4 The Board\nalso asserted that \" although Board member McDonough stated that\" Dr. Margaret Harrell, the\n\nVice President of the Board who would serve as the School District's representative at the IASB\nconference, \" could ' gather the consensus from the responses' of the Board members, a review of\n\nthe video of\nthe meeting establishes that there was no consensus reached on any of the IASB\ndiscussed\n\nproposals\n\nby the Board.\n\ni5\n\nAdditionally, the Board asserted that Dr. Harrell was\n\npermitted to exercise her own discretion at the conference and \" was not bound by any of the\nopinions she received at the meeting. i6\n\nIn his correspondence to this office,\n\nincluded a copy of an e- mail Dr.\n\nHarrell sent to the rest of the Board on November 13, 2018, which stated:\n\nAttached is a summary of the information that must be\ndecided during the Board Communication portion of tonight's\nmeeting for the IASB Process.\n\n21-lowever,\n\ndid send this office a supplement to his Request for Review on December 17,\n\n2018, before the Board had submitted its response. In this determination, this office took into account all\ninformation received regarding this matter.\n\n3 Letter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau (December 21, 2018), at 1.\n\nLetter from Jackie Wemz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau (December 21, 2018), at 3.\n\nLetter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nAccess Bureau (December 21, 2018), at 3.\n\nLetter from Jackie Wernz, Franczek Radelet, to Leo Draws, Assistant Attorney General, Public\n\nIncluded in this attachment is the \" voting ballot\" and the\ndescription of issues being decided. Please review the attached and\nbe prepared to \" vote\" on each of the 8 statements?'\n\nalleged that at the November 13, 2018, meeting, Dr. Harrell \" describe[ d] each of the\n\nbelief statements and resolutions, and asked the Board to vote on those matters, so that she may\nact accordingly during the conference. i8\nfurther alleged that \" Board members expressed\nopinions to help arrive at a consensus and make a recommendation to Dr. Harrell on whether to\n\nvote ' yes' or no' at the conference. i9 He argued that \"[ elven though the Board purposefully\navoided the appearance\nof voting, this method of arriving at a consensus should still be construed\n10\nas '\n\nfinal action'.\"\n\nIn other words, \"[\n\nw] hile not framed as a formal ' vote', giving ' direction' to the\n\ndelegate seems akin to final action on a Board resolution.\" 11\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\n\nSection 2. 02(c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject\nof\n\nfinal action at the meeting.\" (Emphasis added.)\n\nOMA does not define \" final action,\" and no\n\nIllinois court has precisely defined that term. Illinois courts have indicated, however, that \" final\n\naction\" generally must bring a matter to a resolution. Compare Davis v. Board ofEducation of\n\nFarmer City —Mansfield Community Unit School District No. 17, 63 Ill. App. 3d 495, 499 (4th\nDist. 1978) (adoption of resolution in closed session stating tentative intent to terminate\nsuperintendent's employment \" did not dispose of the question of whether that employment\nE- mail from Margaret Harrell to boe@elmhurst205. org (November 13, 2018).\nNovember\n\nLetter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n9 Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n10 Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nLetter from\n\nshould\n\nbe terminated\n\nand,\n\ntherefore,\n\nwas not\n\nfinal action[,]\"\n\nwhere board subsequently took final\n\naction to terminate the superintendent's employment in open session); with Kosoglad v. Porcelli,\n\n132 Ill. App. 3d 1081, 1092 (1st Dist. 1985) (vote to remove commissioner from police board in\n\nopen session was final action). The fact that the agenda for the November 13, 2018, meeting did\nnot contain any items concerning belief statements or resolutions at issue at the IASB conference\nis not disputed. Therefore, this office's determination hinges on whether the Board took \" final\naction\" on matters related to the IASB conference.\n\nThis office's review of the video recording of the Board's November 13, 2018,\nmeeting confirmed that Dr. Harrell initially asked the Board to \" vote\" on six issues that would be\n\non the table at the IASB conference. l2 When Dr. Harrell asked for the vote of each member on\nthe first belief statement, however, Board member McDonough indicated that a vote would be\nimproper, stating: \" Just procedurally,\nprobably\n\nyou can\n\ngather\n\ndon' t have an agenda\n\nwe\n\nthe consensus from the responses * * *\n\nfor voting on here * * *\n\nso\n\nbut we' ll be as clear as we\n\ncan.i13 Dr. Harrell responded: \" So I appreciate that, um, so while we can' t vote, there needs to\nbe a vote that is... I will be assessing,\nsaying, and I will vote accordingly.\n\nso\n\nbased off your comments...\n\nI will decide what you' re\n\ni14 In response to an ensuing question from a Board member\n\nseeking clarification about the belief statements, Dr. Harrell explained that in light of public\n\nfeedback to the Board about the IASB resolution on arming teachers, \" there needs to be a\ndiscussion, and based off that discussion * * *\nthat will be based off the consensus of this\n\nI need to go and place a vote one way or the other,\n\nmeeting. i15 After Dr. Harrell read each IASB items,\n\none or more Board members responded generally, noting the Board's present policies. On some\nstatements and resolutions there was not much discussion, though some Board members did give\n\nunequivocal stances on how they believed Dr. Harrell should proceed at the conference,\n\nincluding all six of the Board members other than Dr. Harrell on the resolution about arming\nteachers. Dr. Harrell did not expressly give her opinion on any of the IASB proposals.\n\nBecause Dr. Harrell asked the Board to vote and the Board specifically declined\nto vote because the IASB conference issues were not on the agenda, the requester and the public\n\n1° Elmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube (Nov. 18, 2018),\nhttps:// www. youtube. com/ watch? v= bgDnm58DHs, at 1: 44: 56.\n\n13 Elmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube (Nov. 18, 2018),\nhttps:// www. youtube. com/ watch? v= bgDnrn58DHs, at 1: 47: 05.\n\nElmhurst 205, 2018- 11- 13 Elmhurst 205 School Board Meeting, YouTube (Nov. 18, 2018),\nhttps:// www.youtube. com/ watch?v= bgDnrn58DHs, at 1: 47: 25.\n\nmay have been left with the impression that the ensuing discussion was improper. Although Dr.\nHarrell requested that the Board vote on the six issues she presented so that she would have\nclear direction for representing the Board at the IASB conference, it is clear that no vote was\n\nrequired and none was taken. \" Without the public vote, no final action has occurred.\" Board of\nEducation of Springfield School District No. 186 v. Attorney General, 2017 IL 120343, ¶ 74, 77\nN.E.3d 625, 638 (2017).\n\nsuggests that even without a vote, the Board's expression of\n\nopinions and direction to Dr. Harrell was final action, which violated OMA because there was no\n\ncorresponding agenda item. However, Board members mostly provided only brief, limited\ncomments on the belief statements. Those expressions of opinions by individual Board members\ndid not definitively establish a consensus or manifest a collective decision that amounted to a\n\nfinal action\" by the full Board. No matter was resolved during that portion of meeting, and\nnothing discussed with respect to the six beliefs and resolutions was final or binding on the\nBoard. Because the Board simply discussed matters not on the agenda during the open session\nof its November 13, 2018, meeting, and no final action was taken, the Board did not violate\nsection 2. 02(c) of OMA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at (217) 782- 1699, ldraws@atg. state. il.us, or the Springfield\naddress on the bottom of the first page of this letter.\n\nVery truly yours,\n\nLEO DRAWS\n\nAssistant Attorney General\nPublic Access Bureau\n55832\n\no\n\n202 notice proper no final action\n\nsd"}
{"id":1284,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-09-13","case_number":null,"request_numbers":["55838"],"title":"Forest Preserve District of DuPage County violated OMA by approving closed session minutes in closed session","filename":"55838, issued September 13, 2019.pdf","rel_path":null,"word_count":1819,"summary":"A requester alleged that the Forest Preserve District of DuPage County violated the Open Meetings Act by approving closed session minutes during a closed session rather than in an open session. The PAC determined that while discussion of minutes may occur in closed session, the final vote to approve them must occur in open session.","plain_summary":"A citizen complained that a local government board voted to approve private meeting minutes while behind closed doors. The Attorney General's office agreed, explaining that while boards can discuss these minutes in private, the actual vote to approve them must happen in a public meeting. The board was advised to hold a formal vote in an open session to correct the error.","holding":"The Board violated the Open Meetings Act by taking final action to approve closed session minutes during a closed session.","legal_question":"Does the Open Meetings Act require that the final vote to approve closed session minutes occur in an open session?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Forest Preserve District of DuPage County","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Commissioners approved closed session minutes during a closed session instead of in an open session.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_21/55838, issued September 13, 2019.pdf","sha256":"676830c7d8a254b69aefde0886cafbf93954dddc3f80ffab43b49b9f2e0fb698","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting minutes","final action","open meeting","voting"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 13, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Jack Elsner\nGeneral Counsel\n\nForest Preserve District of DuPage County\n3S580 Naperville Road\nWheaton, Illinois 60189\n\nj elsner@dupageforest. org\nRE: OMA Request for Review— 2018 PAC 55838\nDear\n\nand Mr. Elsner:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nFor the reasons that follow, the Public Access Bureau\n\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nrequests that the Board of Commissioners ( Board) of the Forest Preserve District of DuPage\nCounty ( District) approve the minutes of its closed sessions in open session.\n\nOn November 21, 2018,\n\nsubmitted this Request for Review\n\nalleging that the Board violated section 2( e) of OMA ( 5 ILCS 120/ 2( e) ( West 2018)) on October\n\n16, 2018, by approving closed session minutes in closed session and failing to identify in open\nsession which meetings' minutes were approved. On December 4, 2018, this office sent a copy\nof the Request for Review to the Board and asked it to respond to\n\nallegation. This\n\noffice also asked for copies of minutes of the Board' s October 16, 2018, meeting ( both open and\nclosed sessions), together with the verbatim recording from the closed session in question.\n\nOn\n\nDecember 11, 2018, the Board provided this office with a transcript of the closed session and a\n\nwritten response contending that, although it approved closed session minutes during closed\nsession at its October 16, 2018, regular meeting, it did not violate section 2( e) of OMA. On\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South\n\nUniversity Ave., Carbondale, Illinois 62901 • (\n\n618) 529- 6400 •\n\nTTY: ( 877) 675- 9339 • Fax: ( 618)\n\n529- 6416\n\n\fMr. Jack Elsner\nSeptember 13, 2019\nPage 2\n\nDecember 14, 2018, this office forwarded a copy of the Board's written response to\n\nhe\n\ndid not reply.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2016). Section 2(e) of OMA\nprovides that \"[ n] c) final action may be taken at a closed meeting. Final action shall be preceded\nby a public recital of the nature of the matter being considered and other information that will\ninform the public of the business being conducted.\"\nThe Board entered closed session on October 16, 2018, pursuant to section\n\n2( c)( 21) of OMA ( 5 ILCS 120/ 2( c)( 21) ( West 2018)), which permits a public body to hold a\nclosed session for \"[ d] iscussion of minutes of meetings lawfully closed under this Act, whether\n\nfor purposes of approval by the body of the minutes or for semi- annual review of the minutes\nas\n\nmandated\n\nby Section 2. 06.\" ( Emphasis added.)\n\nIn its response to this office, the Board acknowledged that it met in closed session\nto review and approve previous closed session minutes and confirmed that it \" thereafter took no\n\nfurther action regarding the minutes in open session.\" 1 The Board noted that there are two\ninstances in which a public body must take action on closed session minutes in open session: ( 1)\n\nif the public body wishes to destroy the closed session verbatim recording from a meeting that\n\noccurred at least 18 months prior, the public body must first approve closed session minutes of\nthe meeting that contain\n\nsufficient\n\ninformation ( 5 ILCS 120/ 2. 06( c) ( West 2018)); and ( 2) each\n\npublic body must semi- annually decide and report on the extent to which it needs to keep its\nclosed session minutes confidential. Because the Board was merely approving the draft minutes\n\nof closed sessions in this matter rather than serving either of those purposes, the Board argued, it\n\nwas not obligated to take action in open session. The Board cited Board ofEducation of\n\nSpringfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343, 77 N.E.3d\n\n625 ( 2017) for its assertion that \"a public body can take action in closed session as long as it is\n\nnot final action of business being conducted by the\" public body. 2\n\nLetter from John\n\nT. Elsner, General Counsel, Forest Preserve District of DuPage County, to Leo\n\nDraws, Assistant Attorney General, Office of the Attorney General, Public Access Bureau ( December 11, 2018), at\n1.\n\n2Letter from John\nT. Elsner, General Counsel, Forest Preserve District of DuPage County, to Leo\nDraws, Assistant Attorney General, Office the Attorney General, Public Access Bureau ( December 11, 2018), at\nof\n\n2\n\n\fMr. Jack Elsner\n\nSeptember 13, 2019\nPage 3\n\nIn Springfield School District, the Supreme Court of Illinois found that OMA\n\ncontains no bar to a public body's taking a preliminary vote at a closed meeting.\" Springfield\n\nSchool District, 2017 IL 120343, ¶ 73, 77 N.E.3d at 637. The Supreme Court stated that a public\nbody must hold a public vote to properly take final action: \" Without the public vote, no final\naction has occurred.\" Springfield School District, 2017 IL 120343, ¶ 74, 77 N.E.3d at 637. OMA\n\ndoes not define \" final action,\" however, and no Illinois court has precisely defined that term. In\nGosnell v. Hogan, 179 Ill. App. 3d 161 ( 5th Dist. 1989), the Illinois Appellate Court examined\n\nwhether a board' s decision in closed session to authorize a request for mediation as an alternative\nto the negotiations it had been conducting with the secretaries' union was a final action, and\n\nconcluded that it was not; instead, the board' s authorization of mediation was merely a step\n\ntowards reaching final action on the union' s contract. See Gosnell, 179 Ill. App. 3d at 176\nMediation, similar to negotiating, is not an end in itself, but rather, a means to an end.\n\nNegotiations and mediations are made up of many 'unilateral' decisions, such as what to offer or\ncounteroffer, and to hold that each of the unilateral strategical decisions that make up the\nconstituent\n\nparts\n\nof a negotiation\n\nis in and\n\nof\n\nitself a final action is unreasonable.\").\n\nAccordingly,\n\nfinal action\" generally must resolve a matter. Compare Davis v. Board ofEducation ofFarmer\n\nCity—Mansfield Community Unit School District No. 17, 63 Ill. App. 3d 495, 499 ( 4th Dist.\n1978) ( adoption of resolution in closed session stating tentative intent to terminate\n\nsuperintendent'\ns employment \" did not dispose of the question of whether that employment\nbe\n\nshould\n\nterminated\n\nand,\n\ntherefore,\n\nwas\n\nnot\n\nfinal action[,]\"\n\nwhere board subsequently took final\n\naction to terminate the superintendent' s employment in open session); with Kosoglad v. Porcelli,\n\n132 I11. App. 3d 1081, 1092 ( 1st Dist. 1985) ( vote to remove commissioner from police board in\n\nopen\nsession was final action);3 see also 111. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued July\n14, 2015,\nat\n\n3 (\"[\n\nA] component of a public body's process of reaching final action generally does\n\nnot, itself, constitute final action.\").\n\nThe approval of minutes disposes of the question of whether minutes are to be\n\napproved; such approval does not constitute a mere component of a larger decision-making\n\nprocess. Although the Board argues that it was not yet required to approve the closed session\n\nminutes at issue during its October 16, 2018, meeting because it was not yet seeking to destroy\n\nthe corresponding closed session verbatim recordings, \" final actions\" are not limited io decisions\nthat a public body is required to make at the time. Therefore, the approval of minutes is a final\naction that public bodies are required to take in open session. As set forth in Springfield School\n\nDistrict, a public body may take a preliminary vote in closed session as to whether it intends to\napprove certain minutes. Nonetheless, in keeping with OMA' s mandate that \" no final action may\nof Engineers\n\nv.\n\n3For an analogous articulation of \"final action\" outside of the OMA context, see U.S. Army Corps\n\nHawkes Co., Inc., 136 S. Ct. 1807, 1813 ( 2016) ( final\nagency action \"[ f]irst * * *\n\nmust mark the\n\nconsummation of the agency' s decisionmaking process— it must not be of a merely tentative or interlocutory nature.\nAnd second, the action\nmust be oneBennett\nby which rights or obligations have been determined. or from which legal\nflow.\" (\nconsequences\n\nwill\n\nquoting\n\nv.\n\nSpear, 520 U. S. 154, 177- 78, 117 S. Ct. 1154,\n1168 ( 1997))).\n\n\fMr. Jack Elsner\nSeptember 13, 2019\nPage 4\n\nbe taken at a closed meeting\" the vote to approve the minutes that serves as final action should\n\ntake place in open session.\n\nThis office is aware that public bodies may have interpreted the section 2( c)( 21)\n\nexception, which contains the phrase \" for purposes of approval by the body,\" as permitting final\n\napproval of minutes to occur in closed session. As noted in the Board' s response, the Public\n\nAccess Counselor's electronic training curriculum paraphrased the statute in a way that suggested\nthat closed session minutes could be approved in closed session.\" This office has not previously\nconsidered this question in the context of a Request for Review. Upon careful consideration, this\n\noffice concludes that in keeping with OMA's underlying purpose that actions and deliberations of\n\npublic bodies be conducted openly, as well as the prohibition of final action in closed session, the\nbetter practice is to conduct the vote to approve minutes of closed sessions in open session. Just\nas the other OMA exceptions to open meetings allow discussion of particular, limited topics in\nclosed session, but require public votes to take final action, closed session \"[ d] iscussion of\n\nminutes of meetings lawfully closed\" is allowed, but the vote constituting the final approval\nshould occur in open session.\n\nThis office's review of the verbatim transcript of the Board' s October 16, 2018,\nclosed session confirmed that the Board took a formal roll call vote in an attempt to approve\ncertain closed session minutes. This office requests that the Board follow that closed session\nvote with a vote in open session to formally approve the minutes.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n\n217) 782- 1699, Idraws@atg. state. il.us, or the Springfield address on the bottom of the first page\n\nof this letter.\n\nVery truly yours,\n\nLEO DRAWS\n\nAssistant Attorney General\nPublic Access Bureau\n\n55838 o 2e final action spd\n\nthis letter.\n\n4The online OMA training has been updated to\n\nclarify this\n\npoint\n\nin keeping with the\n\nconclusions\n\nin\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Approval of closed session minutes in a closed session","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55838/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 13, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Jack Elsner\nGeneral Counsel\n\nForest Preserve District of DuPage County\n3S580 Naperville Road\nWheaton, Illinois 60189\n\nj elsner@dupageforest. org\nRE: OMA Request for Review— 2018 PAC 55838\nDear\n\nand Mr. Elsner:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nFor the reasons that follow, the Public Access Bureau\n\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nrequests that the Board of Commissioners (Board) of the Forest Preserve District of DuPage\nCounty (District) approve the minutes of its closed sessions in open session.\n\nOn November 21, 2018,\n\nsubmitted this Request for Review\n\nalleging that the Board violated section 2(e) of OMA (5 ILCS 120/ 2(e) (West 2018)) on October\n\n16, 2018, by approving closed session minutes in closed session and failing to identify in open\nsession which meetings' minutes were approved. On December 4, 2018, this office sent a copy\nof the Request for Review to the Board and asked it to respond to\n\nallegation. This\n\noffice also asked for copies of minutes of the Board's October 16, 2018, meeting (both open and\nclosed sessions), together with the verbatim recording from the closed session in question.\n\nOn\n\nDecember 11, 2018, the Board provided this office with a transcript of the closed session and a\n\nwritten response contending that, although it approved closed session minutes during closed\nsession at its October 16, 2018, regular meeting, it did not violate section 2(e) of OMA. On\n\nDecember 14, 2018, this office forwarded a copy of the Board's written response to\n\nhe\n\ndid not reply.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2016). Section 2(e) of OMA\nprovides that \"[ n] c) final action may be taken at a closed meeting. Final action shall be preceded\nby a public recital of the nature of the matter being considered and other information that will\ninform the public of the business being conducted.\"\nThe Board entered closed session on October 16, 2018, pursuant to section\n\n2(c)(21) of OMA (5 ILCS 120/ 2(c)(21) (West 2018)), which permits a public body to hold a\nclosed session for \"[ d] iscussion of minutes of meetings lawfully closed under this Act, whether\n\nfor purposes of approval by the body of the minutes or for semi- annual review of the minutes\nas\n\nmandated\n\nby Section 2. 06.\" (Emphasis added.)\n\nIn its response to this office, the Board acknowledged that it met in closed session\nto review and approve previous closed session minutes and confirmed that it \" thereafter took no\n\nfurther action regarding the minutes in open session.\" 1 The Board noted that there are two\ninstances in which a public body must take action on closed session minutes in open session: (1)\n\nif the public body wishes to destroy the closed session verbatim recording from a meeting that\n\noccurred at least 18 months prior, the public body must first approve closed session minutes of\nthe meeting that contain\n\nsufficient\n\ninformation (5 ILCS 120/ 2. 06(c) (West 2018)); and (2) each\n\npublic body must semi- annually decide and report on the extent to which it needs to keep its\nclosed session minutes confidential. Because the Board was merely approving the draft minutes\n\nof closed sessions in this matter rather than serving either of those purposes, the Board argued, it\n\nwas not obligated to take action in open session. The Board cited Board ofEducation of\n\nSpringfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343, 77 N.E.3d\n\n625 (2017) for its assertion that \"a public body can take action in closed session as long as it is\n\nnot final action of business being conducted by the\" public body. 2\n\nLetter from John\n\nT. Elsner, General Counsel, Forest Preserve District of DuPage County, to Leo\n\nDraws, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (December 11, 2018), at\n1.\n\n2 Letter from John\nT. Elsner, General Counsel, Forest Preserve District of DuPage County, to Leo\nDraws, Assistant Attorney General, Office the Attorney General, Public Access Bureau (December 11, 2018), at\n\nIn Springfield School District, the Supreme Court of Illinois found that OMA\n\ncontains no bar to a public body's taking a preliminary vote at a closed meeting.\" Springfield\n\nSchool District, 2017 IL 120343, ¶ 73, 77 N.E.3d at 637. The Supreme Court stated that a public\nbody must hold a public vote to properly take final action: \" Without the public vote, no final\naction has occurred.\" Springfield School District, 2017 IL 120343, ¶ 74, 77 N.E.3d at 637. OMA\n\ndoes not define \" final action,\" however, and no Illinois court has precisely defined that term. In\nGosnell v. Hogan, 179 Ill. App. 3d 161 (5th Dist. 1989), the Illinois Appellate Court examined\n\nwhether a board's decision in closed session to authorize a request for mediation as an alternative\nto the negotiations it had been conducting with the secretaries' union was a final action, and\n\nconcluded that it was not; instead, the board's authorization of mediation was merely a step\n\ntowards reaching final action on the union's contract. See Gosnell, 179 Ill. App. 3d at 176\nMediation, similar to negotiating, is not an end in itself, but rather, a means to an end.\n\nNegotiations and mediations are made up of many 'unilateral' decisions, such as what to offer or\ncounteroffer, and to hold that each of the unilateral strategical decisions that make up the\nconstituent\n\nparts\n\nof a negotiation\n\nis in and\n\nof\n\nitself a final action is unreasonable.\").\n\nAccordingly,\n\nfinal action\" generally must resolve a matter. Compare Davis v. Board ofEducation ofFarmer\n\nCity—Mansfield Community Unit School District No. 17, 63 Ill. App. 3d 495, 499 (4th Dist.\n1978) (adoption of resolution in closed session stating tentative intent to terminate\n\nsuperintendent's employment \" did not dispose of the question of whether that employment\nbe\n\nshould\n\nterminated\n\nand,\n\ntherefore,\n\nwas\n\nnot\n\nfinal action[,]\"\n\nwhere board subsequently took final\n\naction to terminate the superintendent's employment in open session); with Kosoglad v. Porcelli,\n\n132 I11. App. 3d 1081, 1092 (1st Dist. 1985) (vote to remove commissioner from police board in\n\nopen\nsession was final action);3 see also 111. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued July\n14, 2015,\nat\n\n3 (\"[\n\nA] component of a public body's process of reaching final action generally does\n\nnot, itself, constitute final action.\").\n\nThe approval of minutes disposes of the question of whether minutes are to be\n\napproved; such approval does not constitute a mere component of a larger decision-making\n\nprocess. Although the Board argues that it was not yet required to approve the closed session\n\nminutes at issue during its October 16, 2018, meeting because it was not yet seeking to destroy\n\nthe corresponding closed session verbatim recordings, \" final actions\" are not limited io decisions\nthat a public body is required to make at the time. Therefore, the approval of minutes is a final\naction that public bodies are required to take in open session. As set forth in Springfield School\n\nDistrict, a public body may take a preliminary vote in closed session as to whether it intends to\napprove certain minutes. Nonetheless, in keeping with OMA's mandate that \" no final action may\nof Engineers\n\nv.\n\n3 For an analogous articulation of \"final action\" outside of the OMA context, see U.S. Army Corps\n\nHawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016) (final\nagency action \"[ f]irst * * *\n\nmust mark the\n\nconsummation of the agency's decisionmaking process— it must not be of a merely tentative or interlocutory nature.\nAnd second, the action\nmust be oneBennett\nby which rights or obligations have been determined. or from which legal\nflow.\" (consequences\n\nbe taken at a closed meeting\" the vote to approve the minutes that serves as final action should\n\ntake place in open session.\n\nThis office is aware that public bodies may have interpreted the section 2(c)(21)\n\nexception, which contains the phrase \" for purposes of approval by the body,\" as permitting final\n\napproval of minutes to occur in closed session. As noted in the Board's response, the Public\n\nAccess Counselor's electronic training curriculum paraphrased the statute in a way that suggested\nthat closed session minutes could be approved in closed session.\" This office has not previously\nconsidered this question in the context of a Request for Review. Upon careful consideration, this\n\noffice concludes that in keeping with OMA's underlying purpose that actions and deliberations of\n\npublic bodies be conducted openly, as well as the prohibition of final action in closed session, the\nbetter practice is to conduct the vote to approve minutes of closed sessions in open session. Just\nas the other OMA exceptions to open meetings allow discussion of particular, limited topics in\nclosed session, but require public votes to take final action, closed session \"[ d] iscussion of\n\nminutes of meetings lawfully closed\" is allowed, but the vote constituting the final approval\nshould occur in open session.\n\nThis office's review of the verbatim transcript of the Board's October 16, 2018,\nclosed session confirmed that the Board took a formal roll call vote in an attempt to approve\ncertain closed session minutes. This office requests that the Board follow that closed session\nvote with a vote in open session to formally approve the minutes.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n\n217) 782- 1699, Idraws@atg. state. il.us, or the Springfield address on the bottom of the first page\n\nof this letter.\n\nVery truly yours,\n\nLEO DRAWS\n\nAssistant Attorney General\nPublic Access Bureau\n\n55838 o 2e final action spd\n\nthis letter.\n\n4 The online OMA training has been updated to\n\nclarify this\n\npoint\n\nin keeping with the\n\nconclusions\n\nin"}
{"id":1285,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-03-26","case_number":null,"request_numbers":["55981"],"title":"City of Evanston Rules Committee violated OMA by unreasonably restricting public comment","filename":"55981, issued March 26, 2019.pdf","rel_path":null,"word_count":2095,"summary":"The PAC determined that the City of Evanston's Rules Committee violated the Open Meetings Act by restricting public comment to one minute per speaker, contrary to the Committee's own established rules which allowed for three minutes.","plain_summary":"A citizen complained that the Rules Committee of the City of Evanston City Council violated the Open Meetings Act by limiting public comment to one minute per speaker at its December 3, 2018, meeting, even though the Council's established rules allowed three minutes per speaker within a 45-minute period. The Illinois Attorney General's office determined that the Committee violated section 2.06(g) of the Open Meetings Act by unreasonably restricting public comment, as the chair applied the rules in a way that limited total comment time to less than 23 minutes when a less restrictive option was available. The determination did not address a second allegation about an attorney speaking outside the public comment period, as it was outside the scope of the Act.","holding":"The Committee violated section 2.06(g) of the Open Meetings Act by unreasonably restricting public comment to one minute per speaker at its December 3, 2018, meeting, contrary to its established rules.","legal_question":"Did the Committee violate section 2.06(g) of the Open Meetings Act by imposing public comment time restrictions that were inconsistent with its established and recorded rules?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Evanston Rules Committee","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerns the enforcement of public comment time limits during a public meeting.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/unreasonable-rules/55981, issued March 26, 2019.pdf","sha256":"3b0099230599d17e0d4dd87bcdcc0412a5d219a44f667cd51f6c9e893ba3b0c9","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting rules","Open Meetings Act","city council"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch\n\n26, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Alexandra B. Ruggie\n\nAssistant City Attorney,\nLaw Department\n\nCity of Evanston\n2100 Ridge\n\nAvenue\n\nEvanston, Illinois 60201\naruggie@cityofevanston. org\nRe:\n\nDear -\n\nOMA Request for Review — 2018 PAC 55981\n\nand Ms. Ruggie:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons discussed below, this office concludes\n\nthat the Rules Committee ( Committee) of the City of Evanston City Council ( Council) violated\n\nOMA during its December 3, 2018, meeting by imposing restrictions on the public' s right to\naddress the Committee which were contrary to its established and recorded rules.\nOn December 4, 2018,\nfiled a Request for Review with the\nPublic Access Bureau alleging that the Committee violated OMA when the Committee' s chair\nallowed each speaker only one minute of public comment. In particular,\nasserted that\nthe Committees allotment of public comment time did' not comply with its rules, which\n\nfor three minutes per person during public comment, allocated over a period of 45\nminutes. i'\nalso alleged that the Committee violated OMA when it permitted the\nprovide[-]\n\n1E -mail from\n\n500 South\n\nSecond\n\nStreet,\n\nSpringfield,\n\nto Public Access, Office of the Attorney General ( December 4, 2018).\n\n62706 • (\n\n217) 782- 1090 •\n\nTTY: (\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 •\n\nTTY: ( 312) 814- 3374 •\n\n1001 East Main, Carbondale,\n\nIllinois\n\nIllinois 62901 • (\n\n618)\n\n529- 6400 •\n\nTTY: (\n\n618)\n\n217) 785 - 2771 •\n\n529- 6403 •\n\nFax: ( 217)\n\n782- 7046\n\nFax: ( 312) 814- 3806\n\nFax: ( 618)\n\n529- 6416\n\n\fMs. Alexandra B. Ruggie\nMarch 26, 2019\nPage .2\n\nattorney for an alderman to speak for eight minutes after the public comment period ended\nwithout notifying petitioners beforehand that their attorneys would be granted a similar\nopportunity to address the Committee.\n\nOn December 10, 2018, the Public Access Bureau sent a copy of the Request for\nReview to the Committee and requested that it provide a detailed written answer to\nallegation concerning public comment time, together with a copy of the Committee' s established\n\nand recorded rules for public comment. This office did not receive a response to our December\n10, 2018, letter. On December 27, 2018, this office sent the Committee a second letter\n\nrequesting that it respond to\nRequest for Review. On January 2, 2019, counsel for\nthe Committee provided this office with a written answer, a copy of the sign- up sheet for public\ncomment at the December 3, 2018, meeting, a copy of the Committee' s rules for public\n\ncomment, and a link to a video recording of the meeting. On January 2, 2019, this office\n\nforwarded a copy of the Committee' s answer to\n\nshe did not reply.\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizen shall be given advance notice of\nand the right to attend all meetings at which any business of a public body is discussed or acted\nin any way.\"\n\n5 ILCS 120/ 1 ( West 2016). \"\n\nThe Open Meetings Act provides that public\nagencies exist to aid in the conduct of the people' s business, and that the intent of the Act is to\nupon\n\nassure that agency actions be taken openly and that their deliberations be conducted openly.\"\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nRules for Public Comment\n\nSection 2. 06( g) of OMA ( 5 ILCS 120/ 2. 06( g) ( West 2016), provides that \"[ ajny\nperson shall be permittedan opportunity to address public officials under the rules established\n\nand recorded by the public body.\" The Attorney General has concluded that section 2. 06( g) of\nOMA \" requires that all public bodies subject to the Act provide an opportunity for members of\nthe public to address public officials at open meetings.\"\n\nIII. Att' y Gen. Pub. Acc. Op. No. 14-\n\n012, issued September 30, 2014, at 5; see also I11. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued\nSeptember 4, 2014, at 4. Under the plain language of section 2. 06( g) of OMA, public comment\nmust be permitted in accordance with the public body' s established and recorded rules.\nAlthough OMA does not specifically address the types of public comment rules\nthat a public body may adopt, rules designed to maintain order and decorum are permissible to\n\nensure that meetings are conducted efficiently. See IA. Rana Enterprises, Inca v. City ofAurora,\n\n630 F. Supp. 2d 912, 923- 25 ( N.D. Ill. 2009); see also 111. Att'y Gen. Pub. Acc. Op. No. 14- 012,\nissued September 30, 2014, at 5 ( a public\n\nbody may promulgate reasonable \" time, place and\n\n\fMs. Alexandra B. Ruggie\n\nMarch 26, 2019\nPage 3\n\nmanner\" rules aimed at preserving order and decorum which are necessary to further a\nsignificant government interest). However, such rules must tend to accommodate, rather than to\nunreasonably restrict, the right to address public officials. See I.A. Rana Enterprises, Inc., 630 F.\nSupp. 2d at 923- 25 ( N. D. Ill. 2009).\n\nA rule that promotes order and decorum, such as a rule specifying the amount of\ntime members of the public have to address public officials, does not violate the first amendment\nto the United States Constitution provided that it is reasonable in time and scope. Wright v.\n\nAnthony, 733 F. 2d 575, 577 ( 8th Cir. 1984) ( finding that because a five- minute time limit for\n\nspeakers at a public hearing served a significant governmental interest in conserving time and in\nensuring that others had an opportunity to speak, the time limit did not violate the speaker' s\n\nrights under the first amendment to the United States Constitution); see also Shero v. City of\nGrove, 510 F. 2d 1196, 1203 ( 10th Cir. 2007) ( concluding that in a public forum, a city council\ncould impose a three- minute time limitation on public comment because it was \" appropriately\ndesigned to promote orderly and efficient meetings.\").\n\nThe Committee is a standing committee of the Council. 2 The Council' s\nestablished\n\nand recorded rules concerning public comment provide:\n6. 2\n\nThe Council shall provide a period for Citizen Comment.\n\nInterested persons shall sign their name, address and the agenda\n\nitem or other topic to be addressed on a' designated citizen\nparticipation sheet. A speaker may address the Council for no\n\nmore than three minutes, and only once per Council meeting. The\nmaximumtime period for citizen participation is forty- five\nminutes.\n\nIf there are more than 15 speakers, the Mayor will\n\nallocate time among the speakers to ensure that citizen comment\n\ndoes not exceed forty- five ( 45) minutes. The business of the City\nCouncil shall commence no later than forty- five ( 45) minutes after\n\nthe beginning of Citizen Comment.[ 31\nAlthough authorizing the Mayor to allocate time among more than 15 speakers\n\nduring a public comment period capped at 45 minutes could facilitate the running of a timely and\norderly meeting while maximizing the opportunity for those speakers to address the Committee,\nCity of Evanston, Rules and Organization of the City Council of the City of Evanston, § 9. 2 ( July\n12, 2018).\n\nCity of Evanston, Rules and Organization of the City Council of the City of Evanston, § 6. 2 ( July\n12, 2018).\n\n\fMs. Alexandra B. Ruggie\nMarch 26, 2019\nPage ' 4\n\nthe information provided to this office indicates that the Committee instead used its rules to limit\nthe public' s ability to address the members of the Committee. In this instance, 19 members of\n\nthe public signed -up on the citizen participation sheet that was circulated at the beginning of the\nDecember 3, 2018, meeting. The chair of the Committee reviewed the sheet and determined\n\nthat, because more than 15 speakers had signed -up to speak, the amount of public comment time\nto be allotted would be one minute per speaker. A total of 16 speakers chose to address the\n\nCommittee, and the public comment portion of the meeting lasted less than 23 minutes. The\nCommittee chair informed several speakers that their one minute of public comment time had\nexpired and requested that those speakers cease their speech.\n\nRequest for Review asserted that the chair chose to limit public\ncomment time to one minute per speaker because she was aware of the probable content of the\nspeakers' speech in light of a recent recommendation from the Board of Ethics. The Committee\ncountered that the chair exercised her discretion under the Council' s rules to limit comment to\n\none minute per speaker because a Human Services Committee meeting was scheduled\nimmediately following the Committee meeting. The Committee stated that the Human Services\nCommittee meeting was delayed by nearly an hour and a half from its scheduled start time.\n\nThe Committee has not provided an explanation for why the chair' s application of\n\nits rules to limit public comment to one minute per speaker was necessary to promote order and\ndecorum at the meeting or to further any significant governmental interest. The rule appears to\n\nbe intended to provide an opportunity for all members of the public who wish to address the\nCommittee to do so within a public comment period that is not to exceed 45 minutes.\n\nThe\n\nmanner in which the Committee applied its rule limited the public comment period to less than\n\n23 minutes. Although public bodies have an interest in conserving time and ensuring that all\n\ninterested parties have an opportunity to speak, the Committee may not unreasonably restrict\npublic comment to accommodate its meeting schedule, particularly where a need for additional\ntime between meetings may have been foreseeable. As an example, suppose 14 members of the\n\npublic had signed - up on the citizen participation sheet at the Committee meeting instead of 19.\n\nUnder this scenario, each member would have been entitled to speak for up to three minutes,\nwhich means that the public comment period for the meeting may have exceeded 40 minutes. It\nis unreasonable that, through the use of its rules, the Committee afforded less total time for\npublic comment because more members of the public wished to speak.\n\nFurther, it is unclear why it was necessary for the chair to deviate from the 45 minute maximum of public comment time set forth in its rules and limit public comment time to\nonly one minute of comment per speaker when a less restrictive option was available. Because\n\n19 members of the public signed up to speak, the chair could have elected to provide each\nspeaker with 2 minutes of public comment time, which would not have exceeded the 45 -minute\nmaximum\n\nof public\n\ncomment time.\n\nThat the chair\n\nchosea\n\nmore\n\nrestrictive public comment\n\ntime\n\n\fMs. Alexandra B. Ruggie\nMarch 26, 2019\nPage 5\n\nlimitation than was necessary to adhere to its rules indicates that the Committee' s application of\nthe rules was intended to restrict comment from members of the public. Because the\n\nCommittee' s use of its rules served to unreasonably restrict rather than to accommodate the\npublic's right to address the members of the Committee, this office concludes that Committee\n\nviolated section 2. 06( g) of OMA by enforcing its public comment rules to limit public comment\nto one minute per speaker at its December 3, 2018, meeting.\nsecond allegation is that the Committee allowed the attorney for an\nalderman to comment for an extended time outside of the public comment period. This\n\nallegation, however, is outside the scope of OMA. As discussed above, section 2. 06( g) of OMA\n\nis intended to ensure that members of the public have the opportunity to address public officials\nat public meetings. The Committee' s decision to hear comment by the attorney outside of public\ncomment period does not implicate OMA. Because the Public Access Bureau' s authority is\nlimited to resolving disputes concerning OMA and the Freedom of Information Act ( 5 ILCS\n\n140/ 1 et seq. ( West 2016)), this office. will not address this portion of\n\ncomplaint.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed.\n\nIf you have any questions,\n\nplease contact me at ( 217) 782- 9054.\n\nVeryttrruly yoprs,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n55981\n\no\n\n206g pub comment improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Public comment time limits at a committee meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55981/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch\n\n26, 2019\n\nVia electronic mail\n\nVia electronic mail\nMs. Alexandra B. Ruggie\n\nAssistant City Attorney,\nLaw Department\n\nCity of Evanston\n2100 Ridge\n\nAvenue\n\nEvanston, Illinois 60201\naruggie@cityofevanston. org\nRe:\n\nDear -\n\nOMA Request for Review — 2018 PAC 55981\n\nand Ms. Ruggie:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)). For the reasons discussed below, this office concludes\n\nthat the Rules Committee (Committee) of the City of Evanston City Council (Council) violated\n\nOMA during its December 3, 2018, meeting by imposing restrictions on the public's right to\naddress the Committee which were contrary to its established and recorded rules.\nOn December 4, 2018,\nfiled a Request for Review with the\nPublic Access Bureau alleging that the Committee violated OMA when the Committee's chair\nallowed each speaker only one minute of public comment. In particular,\nasserted that\nthe Committees allotment of public comment time did' not comply with its rules, which\n\nfor three minutes per person during public comment, allocated over a period of 45\nminutes. i'\nalso alleged that the Committee violated OMA when it permitted the\nprovide[-]\n\n1E -mail from\n\n500 South\n\nSecond\n\nStreet,\n\nSpringfield,\n\nto Public Access, Office of the Attorney General (December 4, 2018).\n\n62706 • (217) 782- 1090 •\n\nTTY: (100 West Randolph Street, Chicago, Illinois, 60601 • (312) 814- 3000 •\n\nTTY: (312) 814- 3374 •\n\n1001 East Main, Carbondale,\n\nIllinois\n\nIllinois 62901 • (618)\n\n529- 6400 •\n\nTTY: (618)\n\n217) 785 - 2771 •\n\n529- 6403 •\n\nFax: (217)\n\n782- 7046\n\nFax: (312) 814- 3806\n\nFax: (618)\n\n529- 6416\n\nMs. Alexandra B. Ruggie\nMarch 26, 2019\nPage.2\n\nattorney for an alderman to speak for eight minutes after the public comment period ended\nwithout notifying petitioners beforehand that their attorneys would be granted a similar\nopportunity to address the Committee.\n\nOn December 10, 2018, the Public Access Bureau sent a copy of the Request for\nReview to the Committee and requested that it provide a detailed written answer to\nallegation concerning public comment time, together with a copy of the Committee's established\n\nand recorded rules for public comment. This office did not receive a response to our December\n10, 2018, letter. On December 27, 2018, this office sent the Committee a second letter\n\nrequesting that it respond to\nRequest for Review. On January 2, 2019, counsel for\nthe Committee provided this office with a written answer, a copy of the sign- up sheet for public\ncomment at the December 3, 2018, meeting, a copy of the Committee's rules for public\n\ncomment, and a link to a video recording of the meeting. On January 2, 2019, this office\n\nforwarded a copy of the Committee's answer to\n\nshe did not reply.\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizen shall be given advance notice of\nand the right to attend all meetings at which any business of a public body is discussed or acted\nin any way.\"\n\n5 ILCS 120/ 1 (West 2016). \"\n\nThe Open Meetings Act provides that public\nagencies exist to aid in the conduct of the people's business, and that the intent of the Act is to\nupon\n\nassure that agency actions be taken openly and that their deliberations be conducted openly.\"\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nRules for Public Comment\n\nSection 2. 06(g) of OMA (5 ILCS 120/ 2. 06(g) (West 2016), provides that \"[ ajny\nperson shall be permittedan opportunity to address public officials under the rules established\n\nand recorded by the public body.\" The Attorney General has concluded that section 2. 06(g) of\nOMA \" requires that all public bodies subject to the Act provide an opportunity for members of\nthe public to address public officials at open meetings.\"\n\nIII. Att' y Gen. Pub. Acc. Op. No. 14-\n\n012, issued September 30, 2014, at 5; see also I11. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued\nSeptember 4, 2014, at 4. Under the plain language of section 2. 06(g) of OMA, public comment\nmust be permitted in accordance with the public body's established and recorded rules.\nAlthough OMA does not specifically address the types of public comment rules\nthat a public body may adopt, rules designed to maintain order and decorum are permissible to\n\nensure that meetings are conducted efficiently. See IA. Rana Enterprises, Inca v. City ofAurora,\n\n630 F. Supp. 2d 912, 923- 25 (N.D. Ill. 2009); see also 111. Att'y Gen. Pub. Acc. Op. No. 14- 012,\n\nmanner\" rules aimed at preserving order and decorum which are necessary to further a\nsignificant government interest). However, such rules must tend to accommodate, rather than to\nunreasonably restrict, the right to address public officials. See I.A. Rana Enterprises, Inc., 630 F.\nSupp. 2d at 923- 25 (N. D. Ill. 2009).\n\nA rule that promotes order and decorum, such as a rule specifying the amount of\ntime members of the public have to address public officials, does not violate the first amendment\nto the United States Constitution provided that it is reasonable in time and scope. Wright v.\n\nAnthony, 733 F. 2d 575, 577 (8th Cir. 1984) (finding that because a five- minute time limit for\n\nspeakers at a public hearing served a significant governmental interest in conserving time and in\nensuring that others had an opportunity to speak, the time limit did not violate the speaker's\n\nrights under the first amendment to the United States Constitution); see also Shero v. City of\nGrove, 510 F. 2d 1196, 1203 (10th Cir. 2007) (concluding that in a public forum, a city council\ncould impose a three- minute time limitation on public comment because it was \" appropriately\ndesigned to promote orderly and efficient meetings.\").\n\nThe Committee is a standing committee of the Council. 2 The Council's\nestablished\n\nand recorded rules concerning public comment provide:\n6. 2\n\nThe Council shall provide a period for Citizen Comment.\n\nInterested persons shall sign their name, address and the agenda\n\nitem or other topic to be addressed on a' designated citizen\nparticipation sheet. A speaker may address the Council for no\n\nmore than three minutes, and only once per Council meeting. The\nmaximumtime period for citizen participation is forty- five\nminutes.\n\nIf there are more than 15 speakers, the Mayor will\n\nallocate time among the speakers to ensure that citizen comment\n\ndoes not exceed forty- five (45) minutes. The business of the City\nCouncil shall commence no later than forty- five (45) minutes after\n\nthe beginning of Citizen Comment.[ 31\nAlthough authorizing the Mayor to allocate time among more than 15 speakers\n\nduring a public comment period capped at 45 minutes could facilitate the running of a timely and\norderly meeting while maximizing the opportunity for those speakers to address the Committee,\nCity of Evanston, Rules and Organization of the City Council of the City of Evanston, § 9. 2 (July\n12, 2018).\n\nCity of Evanston, Rules and Organization of the City Council of the City of Evanston, § 6. 2 (July\n12, 2018).\n\nMs. Alexandra B. Ruggie\nMarch 26, 2019\nPage ' 4\n\nthe information provided to this office indicates that the Committee instead used its rules to limit\nthe public's ability to address the members of the Committee. In this instance, 19 members of\n\nthe public signed -up on the citizen participation sheet that was circulated at the beginning of the\nDecember 3, 2018, meeting. The chair of the Committee reviewed the sheet and determined\n\nthat, because more than 15 speakers had signed -up to speak, the amount of public comment time\nto be allotted would be one minute per speaker. A total of 16 speakers chose to address the\n\nCommittee, and the public comment portion of the meeting lasted less than 23 minutes. The\nCommittee chair informed several speakers that their one minute of public comment time had\nexpired and requested that those speakers cease their speech.\n\nRequest for Review asserted that the chair chose to limit public\ncomment time to one minute per speaker because she was aware of the probable content of the\nspeakers' speech in light of a recent recommendation from the Board of Ethics. The Committee\ncountered that the chair exercised her discretion under the Council's rules to limit comment to\n\none minute per speaker because a Human Services Committee meeting was scheduled\nimmediately following the Committee meeting. The Committee stated that the Human Services\nCommittee meeting was delayed by nearly an hour and a half from its scheduled start time.\n\nThe Committee has not provided an explanation for why the chair's application of\n\nits rules to limit public comment to one minute per speaker was necessary to promote order and\ndecorum at the meeting or to further any significant governmental interest. The rule appears to\n\nbe intended to provide an opportunity for all members of the public who wish to address the\nCommittee to do so within a public comment period that is not to exceed 45 minutes.\n\nThe\n\nmanner in which the Committee applied its rule limited the public comment period to less than\n\n23 minutes. Although public bodies have an interest in conserving time and ensuring that all\n\ninterested parties have an opportunity to speak, the Committee may not unreasonably restrict\npublic comment to accommodate its meeting schedule, particularly where a need for additional\ntime between meetings may have been foreseeable. As an example, suppose 14 members of the\n\npublic had signed - up on the citizen participation sheet at the Committee meeting instead of 19.\n\nUnder this scenario, each member would have been entitled to speak for up to three minutes,\nwhich means that the public comment period for the meeting may have exceeded 40 minutes. It\nis unreasonable that, through the use of its rules, the Committee afforded less total time for\npublic comment because more members of the public wished to speak.\n\nFurther, it is unclear why it was necessary for the chair to deviate from the 45 minute maximum of public comment time set forth in its rules and limit public comment time to\nonly one minute of comment per speaker when a less restrictive option was available. Because\n\n19 members of the public signed up to speak, the chair could have elected to provide each\nspeaker with 2 minutes of public comment time, which would not have exceeded the 45 -minute\nmaximum\n\nof public\n\ncomment time.\n\nlimitation than was necessary to adhere to its rules indicates that the Committee's application of\nthe rules was intended to restrict comment from members of the public. Because the\n\nCommittee's use of its rules served to unreasonably restrict rather than to accommodate the\npublic's right to address the members of the Committee, this office concludes that Committee\n\nviolated section 2. 06(g) of OMA by enforcing its public comment rules to limit public comment\nto one minute per speaker at its December 3, 2018, meeting.\nsecond allegation is that the Committee allowed the attorney for an\nalderman to comment for an extended time outside of the public comment period. This\n\nallegation, however, is outside the scope of OMA. As discussed above, section 2. 06(g) of OMA\n\nis intended to ensure that members of the public have the opportunity to address public officials\nat public meetings. The Committee's decision to hear comment by the attorney outside of public\ncomment period does not implicate OMA. Because the Public Access Bureau's authority is\nlimited to resolving disputes concerning OMA and the Freedom of Information Act (5 ILCS\n\n140/ 1 et seq. (West 2016)), this office. will not address this portion of\n\ncomplaint.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed.\n\nIf you have any questions,\n\nplease contact me at (217) 782- 9054.\n\nVeryttrruly yoprs,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n55981\n\no\n\n206g pub comment improper mun"}
{"id":1286,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-12-13","case_number":null,"request_numbers":["56006"],"title":"PAC lacks authority to review Chicago committee quorum dispute under OMA","filename":"56006, issued December 13, 2018.pdf","rel_path":null,"word_count":847,"summary":"Alderman Raymond Lopez alleged that the Chicago City Council's Committee on Housing and Real Estate violated the Open Meetings Act by taking action without a quorum. The PAC determined that quorum requirements are governed by local rules and statutes rather than the Open Meetings Act, and therefore closed the matter.","plain_summary":"This determination addresses whether the Chicago City Council's Committee on Housing and Real Estate violated the Open Meetings Act (OMA) by voting on agenda items during a December 6, 2018 meeting despite an alleged lack of quorum. The Public Access Counselor concluded that the information provided gave no basis to find an OMA violation, reasoning that OMA governs meeting transparency but does not set or enforce the number of members required to constitute a quorum for a public body to take action -- that issue is governed by the body's own governing rules and other statutes, not OMA. The letter noted that OMA's physical-presence quorum requirement (section 7(a)) relates specifically to remote/audio-video participation under section 2.01, which was not alleged here. Because the Public Access Bureau's authority is limited to alleged OMA and FOIA violations, it lacked authority to review compliance with the City Council's own governing rules regarding quorum size, and the matter was closed with no further action.","holding":"OMA governs the transparency of public body meetings but does not regulate the number of members required to constitute a quorum for taking action, so the Public Access Counselor lacks authority to review quorum-size disputes governed instead by a body's own rules and other statutes.","legal_question":"Does the Open Meetings Act govern the quorum requirements for a municipal committee's meeting?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City Council of the City of Chicago, Committee on Housing and Real Estate","requesting_party":"Alderman Raymond A. Lopez","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"meeting quorum","subject_description":"The complainant alleged that a committee meeting proceeded and took action despite lacking a quorum of members.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Physical-presence-of-quorum-exceptions/56006, issued December 13, 2018.pdf","sha256":"a16c155108d0d9b042b80999b088a3cdf059d2fff5808cc20011473f8e29bb5d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["quorum","city council","meeting procedure","local government"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 13, 2018\n\nVia electronic mail\nThe Honorable Raymond A. Lopez\nAlderman, 15th Ward\nCity Council of the City of Chicago\n[street address redacted for site publication -- see original PDF]\nraymondlopez@the l Sthward.org\nRE: OMA Request for Review - 2018 PAC 56006\nDear Alderman Lopez:\nThis determination is issued pursuant to section 3.S(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(b) (West 2016)). For the reasons set forth below, the information you\nhave furnished provides no basis for the Public Access Counselor to conclude that the City of\nChicago City Council's Committee on Housing and Real Estate (Committee) violated OMA in\nconnection with its December 6, 2018, meeting.\nSection 3.S(a) of OMA (5 ILCS 120/3.S(a) (West 2016)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * * must include a summary of the facts\nsupporting the allegation. (Emphasis added.)\nIn your Request for Review, you stated that during the Committee's December 6,\n2018, meeting, the first of the three items on the agenda purportedly passed with a unanimous\nvoice vote despite the presence of just three of the Committee's 15 members. You further stated\nthat after you made a \"quorum call,\" the Committee Chairman, the Honorable Joseph Moore,\nimmediately called for a recess, and that the gathering reconvened without addressing the\n\n500 South Second Street, Springfield, Illinois 62706 • (2 l 7) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • Tl'Y: (800) 964-3013 • Fax: (312) 814-3806\n1001 East Main. Carbondale, lllinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n-�-\n\n\fhe Honorable Raymond A. Lopez\nDecember 13, 2018\nPage 2\n\nquorum call: Ten aldermen had arrived by that time, you stated, but only six of them were\nCommittee members. You asserted that the Committee proceeded to take official votes on the\n\nfinal two items on the agenda despite lacking a quorum, alleging that \" this is a violation of the\n\nlaw as well as of the City Council' s own goveming rules.\" 2\nThe Public Access Counselor' s authority to resolve disputes is limited to alleged\n\nviolations of OMA and the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 1 et seq. ( West\n2016)). See 15 ILCS 205/ 7( c)( 3) ( West 2016). Accordingly, the Public Access Bureau does not\n\nhave the authority to review the Committee' s adherence to the City Council' s rules or to statutory\nprovisions other than those found in OMA and FOIA. OMA governs the transparency with\n\nwhich public bodies meet and conduct public business; it generally does not govern other aspects\n\nof meetings, including the number of members of the Committee who must be present to form a\n\nquorum and take action. The requirement in section 7( a) of OMA ( 5 ILCS 120/ 7( a) ( West 2017\nSupp.)) that a quorum be physically present addresses circumstances under which a member of a\n\npublic body may be permitted to attend a meeting by.audio or video conference. 111. Att'y Gen.\nPAC Req. Rev. Ltr. 48860 and 49185, issued December 7, 2017) ( concluding that the\nrequirement in section 2. 01 of OMA ( 5 ILCS 120/ 2. 01 ( West 2017 Supp.)) that a quorum of\n\nmembers of a public body be physically present pertains to instances involving remote\nCopy attached.) Your Request for Review does not allege that any members of\nthe Committee attended its December 6, 2018, meeting by audio or video conference. This is not\nparticipation). (\n\nto say that meeting and taking action without a quorum of the members of a public body is\nproper; rather, those quorum requirements are determined by the City Council' s governing rules\n\nand statutes, instead of OMA. Accordingly, the Public Access Bureau lacks the authority to take\nfurther action with respect to your allegations.\n\nThis letter serves to close this matter. If you have any questions, please contact\n\nme at ( 312) 814- 8413, jjones@atg.state.il.us, or the Chicago address at the bottom of the first\npage of this letter.\n\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\nLetter from Raymond A. Lopez, Alderman — 15th Ward of Chicago, to Sarah Pratt, Public Access\nCounselor, Office of the Attorney General ( December 7, 2018), at 1.\nLetter from Raymond A. Lopez, Alderman — 15th Ward of Chicago, to Sarah Pratt, Public Access\nCounselor,\n\nOffice of the Attorney General ( December 7, 2018),\n\nat 2.\n\n\fThe Honorable Raymond A. Lopez\nDecember\n\n13, 2018\n\nPage 3\n\n56006 o no fi war mun\n\nAttachment\n\ncc:\n\nThe Honorable Joseph A. Moore\n\nChairman, Committee on Housing and Real Estate\nCity Council of the City of Chicago\n121 North LaSalle Street, Room 300\nChicago, Illinois 60602\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A committee meeting and action taken without a quorum","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56006/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 13, 2018\n\nVia electronic mail\nThe Honorable Raymond A. Lopez\nAlderman, 15th Ward\nCity Council of the City of Chicago\n[street address redacted for site publication -- see original PDF]\nraymondlopez@the l Sthward.org\nRE: OMA Request for Review - 2018 PAC 56006\nDear Alderman Lopez:\nThis determination is issued pursuant to section 3.S(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(b) (West 2016)). For the reasons set forth below, the information you\nhave furnished provides no basis for the Public Access Counselor to conclude that the City of\nChicago City Council's Committee on Housing and Real Estate (Committee) violated OMA in\nconnection with its December 6, 2018, meeting.\nSection 3.S(a) of OMA (5 ILCS 120/3.S(a) (West 2016)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * * must include a summary of the facts\nsupporting the allegation. (Emphasis added.)\nIn your Request for Review, you stated that during the Committee's December 6,\n2018, meeting, the first of the three items on the agenda purportedly passed with a unanimous\nvoice vote despite the presence of just three of the Committee's 15 members. You further stated\nthat after you made a \"quorum call,\" the Committee Chairman, the Honorable Joseph Moore,\nimmediately called for a recess, and that the gathering reconvened without addressing the\n\nquorum call: Ten aldermen had arrived by that time, you stated, but only six of them were\nCommittee members. You asserted that the Committee proceeded to take official votes on the\n\nfinal two items on the agenda despite lacking a quorum, alleging that \" this is a violation of the\n\nlaw as well as of the City Council's own goveming rules.\" 2\nThe Public Access Counselor's authority to resolve disputes is limited to alleged\n\nviolations of OMA and the Freedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. (West\n2016)). See 15 ILCS 205/ 7(c)(3) (West 2016). Accordingly, the Public Access Bureau does not\n\nhave the authority to review the Committee's adherence to the City Council's rules or to statutory\nprovisions other than those found in OMA and FOIA. OMA governs the transparency with\n\nwhich public bodies meet and conduct public business; it generally does not govern other aspects\n\nof meetings, including the number of members of the Committee who must be present to form a\n\nquorum and take action. The requirement in section 7(a) of OMA (5 ILCS 120/ 7(a) (West 2017\nSupp.)) that a quorum be physically present addresses circumstances under which a member of a\n\npublic body may be permitted to attend a meeting by.audio or video conference. 111. Att'y Gen.\nPAC Req. Rev. Ltr. 48860 and 49185, issued December 7, 2017) (concluding that the\nrequirement in section 2. 01 of OMA (5 ILCS 120/ 2. 01 (West 2017 Supp.)) that a quorum of\n\nmembers of a public body be physically present pertains to instances involving remote\nCopy attached.) Your Request for Review does not allege that any members of\nthe Committee attended its December 6, 2018, meeting by audio or video conference. This is not\nparticipation). (to say that meeting and taking action without a quorum of the members of a public body is\nproper; rather, those quorum requirements are determined by the City Council's governing rules\n\nand statutes, instead of OMA. Accordingly, the Public Access Bureau lacks the authority to take\nfurther action with respect to your allegations.\n\nThis letter serves to close this matter. If you have any questions, please contact\n\nme at (312) 814- 8413, jjones@atg.state.il.us, or the Chicago address at the bottom of the first\npage of this letter.\n\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\nLetter from Raymond A. Lopez, Alderman — 15th Ward of Chicago, to Sarah Pratt, Public Access\nCounselor, Office of the Attorney General (December 7, 2018), at 1.\nLetter from Raymond A. Lopez, Alderman — 15th Ward of Chicago, to Sarah Pratt, Public Access\n\n56006 o no fi war mun\n\nAttachment\n\ncc:\n\nThe Honorable Joseph A. Moore\n\nChairman, Committee on Housing and Real Estate\nCity Council of the City of Chicago\n121 North LaSalle Street, Room 300\nChicago, Illinois 60602"}
{"id":1287,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-06-28","case_number":null,"request_numbers":["56086"],"title":"DuPage County Election Commission violated OMA by allowing telephone participation at meeting","filename":"56086, issued June 28, 2019.pdf","rel_path":null,"word_count":2180,"summary":"The PAC investigated whether the DuPage County Election Commission violated the Open Meetings Act by allowing a member to participate in a meeting via telephone without a proper quorum or justification. The PAC concluded that while the Commission violated OMA, no remedial action was necessary because the Commission had since been dissolved and the member's vote did not affect the outcome of the final actions.","plain_summary":"A citizen complained that a member of the DuPage County Election Commission participated in a meeting by telephone, which is generally restricted under the Open Meetings Act. The Attorney General's office agreed that the Commission violated the law by improperly permitting this participation. The source document does not state that the case was closed without further action or that the member's vote did not change the meeting's results.","holding":"The DuPage County Election Commission violated the Open Meetings Act by improperly permitting a member to participate in a meeting via telephone.","legal_question":"Whether the DuPage County Election Commission violated the Open Meetings Act by allowing a member to participate in a meeting via telephone.","disposition":"violation_found","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"DuPage County Election Commission","requesting_party":"Mr. John Kraft","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The propriety of a member participating in a public meeting via telephone.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_a_b_c/56086, issued June 28, 2019.pdf","sha256":"d0a2784a831e632cad4cc9a07c95cbd0f46e27f06628831313b69913ac379a20","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","telephone participation","quorum","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 28, 2019\n\nVia electronic\n\nmail\n\nMr. John Kraft\n\njohn@itlinoisleaks.com\nThe Honorable Jean Kaczmarekl\n\nCounty Clerk\n\nDuPage County\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\n\nMr. Sean Conway\n\nAttorney for DuPage County Election Commission\nBond,\n\nDickson &\n\nConway\n\n400 South Knoll Street, Unit C\nWheaton, Illinois 60187\n\nseanconway@bond- dickson. com\n\nRE: OMA Request for Review —2018 PAC 56086\n\nDear Mr. Kraft, Ms. Kaczmarek, and Mr. Conway:\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nFor the reasons that follow, the Public Access\n\nAct ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nBureau concludes that the DuPage County Election Commission ( Commission) violated OMA\n\nThis letter is addressed to the County Clerk because after the meeting at issue. the DuPage\nCounty Election Commission was dissolved and merged into the County Clerk' s Office. Alicia Fabbre, Du/' age\nBoard votes 11- 7 to dissolve election commission. despite clerk' s push to wait till [ sic] after April election,\n\nNAPERVILLE SUN, ( Jan. 15, 2019, 5: 50 p.m.), https:// www.chicagotribune. com/ suburbs/ naperville- sun/ ct- ecndupage- election- merger- debate- st- 01 1 6- story. htmI.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South\n\nUniversity\n\nAve., Carbondale.\n\nIllinois\n\n62901 • (\n\n618) 529- 6400 •\n\nTTY: ( 877) 675- 9339 • Fax: ( 61 8) 529- 6416\n\n\fMr. John Kraft\nThe Honorable Jean Kaczmarek\n\nMr. Sean Conway\nJune 28, 2019\nPage 2\n\nby improperly permitting a Commission member to attend its December 12, 2018. meeting by\ntelephone.\n\nBACKGROUND\n\nOn December 12, 2018, Mr. John Kraft submitted a Request for Review to the\nPublic Access Bureau alleging that the Commission violated OMA during its December 12,\n\n2018, meeting by permitting one if its members to attend the meeting by telephone for a reason\nthat was not permitted under OMA. In particular, he alleged:\n\nThe Chairman, prior to the meeting, stated that the absent\nCommissioner had told people at the previous meeting that he\n\nwould be visiting family and would not be attending this meeting.\nThe Chairman and remaining commissioner permitted him\nto attend via telephone, and even permitted him to Motion and\n\nVote on items for action, including expenditures of public funds. I21\nMr. Kraft argued that simply \" visiting relatives\" was not one of the permitted reasons for\nattending a meeting by means other than physical presence. 3 He alleged that the Commission\n\nviolated sections 7( a) and 7( c) of OMA ( 5 ILCS 120/ 7( a), ( c) ( West 2017 Supp.)).\nOn December 20, 2018, this office forwarded a copy of the Request for Review to\nthe Commission and asked it to provide this office with copies of the December 12, 2018,\n\nmeeting agenda, minutes, and any Commission rules governing member attendance by means\nother than physical presence for this office's confidential review. together with a written response\n\nto Mr. Kraft' s OMA allegation. On January 3, 2019, this office received a written response and a\n\ncopy of the Commission' s remote attendance policy; the Commission stated that the minutes had\n\nyet to be prepared but that an audio recording of the meeting was posted online.' On January 8.\n2019, this office forwarded a copy of the Commission' s response to Mr. Kraft; he did not reply.\n\n2E -mail from John Kraft to AG PAC ( December 13, 2018).\n3E -mail from John Kraft to AG PAC ( December 13, 2018).\n\nThe County of DuPage, Election Commission Committee Meeting 12/ 12/ 2018 4: 00 PM Room\n\n3500B, http:// dupage. igm2. com/ Citizens/ Detail_\n\nMeeting. aspx? ID= 7758 ( last visited\n\nJune 27, 2019).\n\n\fMr. John Kraft\nThe Honorable Jean Kaczmarek\n\nMr. Sean Conway\nJune 28, 2019\n\nPage 3\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 ( West 2016). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 111. App. 3d 161, 171 ( 5th Dist. 1989).\nSections 7( a) and 7( c) of OMA set forth the procedure and requirements for\n\nallowing a member of a public body to attend a meeting by audio or video conference in limited\ncircumstances, as follows:\n\na) If a quorum of the members of the public body is\n\nphysically present as required by Section 2. 01. a majority of the\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\n\nphysically attending because of ( i) personal illness or disability:\nii) employment purposes or the business of the public body: or\niii) a family or other emergency. \" Other means\" is by video or\naudio\n\nconference.\n\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section. may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings.\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\nthe discretion to permit a member who is not physically present to participate in the meeting by\naudio or video conference for any of the three reasons set forth in section 7( a) of OMA and in\n\naccordance with its rules for attendance by other means.\n\nSection II. B. of the Commission' s remote attendance policy states that a\nCommissioner may attend\n\na\n\nmeeting\n\nby remote means\n\nonly if he or she is prevented from\n\n\fMr. John Kraft\nThe Honorable Jean Kaczmarek\n\nMr. Sean Conway\nJune 28, 2019\nPage 4\n\nphysically attending because of: (i) personal illness or disability; ( ii) employment purposes or the\nbusiness of the public body; or ( iii) a family or other emergency.\" (\nEmphasis in original.)'\nSection 111 further provides, in pertinent part:\n\nb. The presiding officer of the meeting must announce, prior to\nthe roll call being taken, that one or more Commissioners are\nparticipating by remote means and the means of participation\nfor each such Commissioner.\nc.\n\nThe non -present Commissioner(s) must answer the roll call,\n\nand state that he or she is unable to attend the meeting in\nperson, which of the reasons in Section II. b. of this Policy he\nor she is participating under, and that he or she is willing and\nable to participate by the remote means selected.\"\nIn its response to this office, the Commission confirmed that one of its three\n\nmembers participated in the meeting at issue by audio conference. The Commission noted,\n\nhowever, that OMA does not specifically define what constitutes a \" family or other emergency,\"\nand that there was no reported Illinois case law addressing that exception. The Commission\nasserted that \" Member Boske participated in the December 12, 2018 meeting via telephone due\nto an out- of-state family matter. Moreover, two of the three Members of the Election\nCommission were in physical attendance at the meeting and could have conducted all business\non\n\nthe agenda without\n\nthe participation of Member Boske.\"'\n\nAccording to the Commission,\n\nMember Boske felt a unique obligation to participate in the meeting\" for political party\nrepresentation reasons and that he \" believed that the OMA authorized his participation in the\n\nResolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of\nMeetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, 1I. b. Pre Meeting Requirements ( adopted September I I, 2012).\n\nResolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of\nMeetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, III.\nMeeting Requirements ( adopted September 11, 2012).\n\nLetter from Sean Conway, DuPage County Election Commission, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( January 3, 2019), at 2.\n\n\fMr. John Kraft\nThe Honorable Jean Kaczmarek\n\nMr. Sean Conway\nJune 28, 2019\nPage 5\n\nmeeting by telephone.\" 8 The Commission further stated that \" all items voted on for final action\nreceived\n\napproval\n\nby unanimous\n\nvote\n\nof all\n\nthree\n\nmembers[.]\"\n\nv\n\nBlack' s Law Dictionary defines \" emergency\" as: \" 1. A sudden and serious event\nor an unforeseen change in circumstances that calls for immediate action to avert. control. or\n\nremedy harm. 2. An urgent need for relief or help.\" Black' s Law Dictionary ( 10th ed. 2014),\navailable at Westlaw BLACKS. Thus, \" a family or other emergency\" entails an element of\nimmediacy.\nIn this matter, the Commission stated that Member Boske did not attend the\n\nDecember 12, 2018, meeting in-person due to an out- of-state family matter, but did not\ndemonstrate that the family matter involved a sudden and serious event or an unforeseen change\nin circumstances that needed immediate attention. Indeed, the Commission did not deny Mr.\nKraft' s allegation that Member Boske had informed the Commission\n\nand public at the previous\n\nmonth's meeting that he would not be at the next month' s meeting, suggesting that the trip was\npre -planned. Absent information indicating that the family matter concerned an urgent matter or\nrequired immediate action, this office is unable to conclude that Member Boske was prevented\n\nfrom physically attending the meeting due to a family emergency or other type of emergency.\nSee, for example, III. Att' y Gen. PAC Req. Rev. Ltr. 37382, issued May 26, 2016 ( concluding\nthat a board improperly permitted a commissioner, who had a pre -planned trip to take her son to\ncollege, to attend a meeting by telephone because the commissioner' s absence did not meet the\n\nfamily or other emergency\" exception in section 7( a) of OMA). Because Member Boske' s\nabsence did not meet the emergency exception in section 7( a) of OMA, the Commission\nimproperly permitted him to attend the December 12, 2018, meeting by telephone.\nAdditionally, the Commission did not adhere to the roll call procedure set forth in\n\nSection IIIb of its remote attendance policy. Based on this office' s review of the audio recording\nof the start of the meeting, Member Boske did not specify during the roll call that he was unable\n\nto attend the meeting in person, under which of the reasons in Section II. b. of the policy he was\nparticipating, or whether he was willing and able to participate by the remote means selected.\nInstead, Member Boske simply answered \" here\" during the roll call. Because section 7( c)\npermits remote attendance only to the extent allowed by the rules the public body has adopted,\nand because the Commission did not follow those rules, this office concludes that the\nCommission also violated section 7( c) of OMA.\n\nLetter from Sean Conway, DuPage County Election Commission. to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau, Office of the Attorney General ( January 3, 2019), at 2.\nletter from Sean Conway, DuPage County Election Commission, to Teresa Lim, Assistant\nAttorney General, Public\n\nAccess Bureau, Office of the\n\nAttorney General ( January 3, 2019), at 2.\n\n\fr.John Kraft\n\nThe Honorable Jean Kaczmarek\n\nMr. Sean Conway\nJune 28, 2019\nPage 6\n\nNonetheless, this office' s review of the Commission' s December 12, 2018.\n\nmeeting packet posted on the DuPage County website1° confirmed that each item on which the\nCommission took final action was approved by a unanimous vote. Thus, the vote of Member\n\nBoske, who participated in the meeting by telephone, would not appear to have changed the\noutcome of the Commission' s final actions. Even if remedial action was warranted. the\n\nCommission was dissolved after the meeting at issue.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n56086 o 7 attendance\n\nimproper elec bd\n\n10DuPage County, Election Commission— Committee Meeting, Packet ( December 12, 2018),\navailable at http:// dupage. igm2. com/ Citizens/ FileOpen. aspx? Type= I& ID= 8256& Inline= True ( last visited June 27,\n2019).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A member participating by telephone at a meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56086/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 28, 2019\n\nVia electronic\n\nmail\n\nMr. John Kraft\n\njohn@itlinoisleaks.com\nThe Honorable Jean Kaczmarekl\n\nCounty Clerk\n\nDuPage County\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\n\nMr. Sean Conway\n\nAttorney for DuPage County Election Commission\nBond,\n\nDickson &\n\nConway\n\n400 South Knoll Street, Unit C\nWheaton, Illinois 60187\n\nseanconway@bond- dickson. com\n\nRE: OMA Request for Review —2018 PAC 56086\n\nDear Mr. Kraft, Ms. Kaczmarek, and Mr. Conway:\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nFor the reasons that follow, the Public Access\n\nAct (OMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nBureau concludes that the DuPage County Election Commission (Commission) violated OMA\n\nThis letter is addressed to the County Clerk because after the meeting at issue. the DuPage\nCounty Election Commission was dissolved and merged into the County Clerk's Office. Alicia Fabbre, Du/' age\nBoard votes 11- 7 to dissolve election commission. despite clerk's push to wait till [ sic] after April election,\n\nNAPERVILLE SUN, (Jan. 15, 2019, 5: 50 p.m.), https:// www.chicagotribune. com/ suburbs/ naperville- sun/ ct- ecndupage- election- merger- debate- st- 01 1 6- story. htmI.\n\nby improperly permitting a Commission member to attend its December 12, 2018. meeting by\ntelephone.\n\nBACKGROUND\n\nOn December 12, 2018, Mr. John Kraft submitted a Request for Review to the\nPublic Access Bureau alleging that the Commission violated OMA during its December 12,\n\n2018, meeting by permitting one if its members to attend the meeting by telephone for a reason\nthat was not permitted under OMA. In particular, he alleged:\n\nThe Chairman, prior to the meeting, stated that the absent\nCommissioner had told people at the previous meeting that he\n\nwould be visiting family and would not be attending this meeting.\nThe Chairman and remaining commissioner permitted him\nto attend via telephone, and even permitted him to Motion and\n\nVote on items for action, including expenditures of public funds. I21\nMr. Kraft argued that simply \" visiting relatives\" was not one of the permitted reasons for\nattending a meeting by means other than physical presence. 3 He alleged that the Commission\n\nviolated sections 7(a) and 7(c) of OMA (5 ILCS 120/ 7(a), (c) (West 2017 Supp.)).\nOn December 20, 2018, this office forwarded a copy of the Request for Review to\nthe Commission and asked it to provide this office with copies of the December 12, 2018,\n\nmeeting agenda, minutes, and any Commission rules governing member attendance by means\nother than physical presence for this office's confidential review. together with a written response\n\nto Mr. Kraft's OMA allegation. On January 3, 2019, this office received a written response and a\n\ncopy of the Commission's remote attendance policy; the Commission stated that the minutes had\n\nyet to be prepared but that an audio recording of the meeting was posted online.' On January 8.\n2019, this office forwarded a copy of the Commission's response to Mr. Kraft; he did not reply.\n\n2E -mail from John Kraft to AG PAC (December 13, 2018).\n3E -mail from John Kraft to AG PAC (December 13, 2018).\n\nThe County of DuPage, Election Commission Committee Meeting 12/ 12/ 2018 4: 00 PM Room\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 (West 2016). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 111. App. 3d 161, 171 (5th Dist. 1989).\nSections 7(a) and 7(c) of OMA set forth the procedure and requirements for\n\nallowing a member of a public body to attend a meeting by audio or video conference in limited\ncircumstances, as follows:\n\na) If a quorum of the members of the public body is\n\nphysically present as required by Section 2. 01. a majority of the\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\n\nphysically attending because of (i) personal illness or disability:\nii) employment purposes or the business of the public body: or\niii) a family or other emergency. \" Other means\" is by video or\naudio\n\nconference.\n\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section. may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings.\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\nthe discretion to permit a member who is not physically present to participate in the meeting by\naudio or video conference for any of the three reasons set forth in section 7(a) of OMA and in\n\naccordance with its rules for attendance by other means.\n\nSection II. B. of the Commission's remote attendance policy states that a\nCommissioner may attend\n\na\n\nphysically attending because of: (i) personal illness or disability; (ii) employment purposes or the\nbusiness of the public body; or (iii) a family or other emergency.\" (Emphasis in original.)'\nSection 111 further provides, in pertinent part:\n\nb. The presiding officer of the meeting must announce, prior to\nthe roll call being taken, that one or more Commissioners are\nparticipating by remote means and the means of participation\nfor each such Commissioner.\nc.\n\nThe non -present Commissioner(s) must answer the roll call,\n\nand state that he or she is unable to attend the meeting in\nperson, which of the reasons in Section II. b. of this Policy he\nor she is participating under, and that he or she is willing and\nable to participate by the remote means selected.\"\nIn its response to this office, the Commission confirmed that one of its three\n\nmembers participated in the meeting at issue by audio conference. The Commission noted,\n\nhowever, that OMA does not specifically define what constitutes a \" family or other emergency,\"\nand that there was no reported Illinois case law addressing that exception. The Commission\nasserted that \" Member Boske participated in the December 12, 2018 meeting via telephone due\nto an out- of-state family matter. Moreover, two of the three Members of the Election\nCommission were in physical attendance at the meeting and could have conducted all business\non\n\nthe agenda without\n\nthe participation of Member Boske.\"'\n\nAccording to the Commission,\n\nMember Boske felt a unique obligation to participate in the meeting\" for political party\nrepresentation reasons and that he \" believed that the OMA authorized his participation in the\n\nResolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of\nMeetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, 1I. b. Pre Meeting Requirements (adopted September I I, 2012).\n\nResolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of\nMeetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, III.\nMeeting Requirements (adopted September 11, 2012).\n\nLetter from Sean Conway, DuPage County Election Commission, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (January 3, 2019), at 2.\n\nmeeting by telephone.\" 8 The Commission further stated that \" all items voted on for final action\nreceived\n\napproval\n\nby unanimous\n\nvote\n\nof all\n\nthree\n\nmembers[.]\"\n\nv\n\nBlack's Law Dictionary defines \" emergency\" as: \" 1. A sudden and serious event\nor an unforeseen change in circumstances that calls for immediate action to avert. control. or\n\nremedy harm. 2. An urgent need for relief or help.\" Black's Law Dictionary (10th ed. 2014),\navailable at Westlaw BLACKS. Thus, \" a family or other emergency\" entails an element of\nimmediacy.\nIn this matter, the Commission stated that Member Boske did not attend the\n\nDecember 12, 2018, meeting in-person due to an out- of-state family matter, but did not\ndemonstrate that the family matter involved a sudden and serious event or an unforeseen change\nin circumstances that needed immediate attention. Indeed, the Commission did not deny Mr.\nKraft's allegation that Member Boske had informed the Commission\n\nand public at the previous\n\nmonth's meeting that he would not be at the next month's meeting, suggesting that the trip was\npre -planned. Absent information indicating that the family matter concerned an urgent matter or\nrequired immediate action, this office is unable to conclude that Member Boske was prevented\n\nfrom physically attending the meeting due to a family emergency or other type of emergency.\nSee, for example, III. Att' y Gen. PAC Req. Rev. Ltr. 37382, issued May 26, 2016 (concluding\nthat a board improperly permitted a commissioner, who had a pre -planned trip to take her son to\ncollege, to attend a meeting by telephone because the commissioner's absence did not meet the\n\nfamily or other emergency\" exception in section 7(a) of OMA). Because Member Boske's\nabsence did not meet the emergency exception in section 7(a) of OMA, the Commission\nimproperly permitted him to attend the December 12, 2018, meeting by telephone.\nAdditionally, the Commission did not adhere to the roll call procedure set forth in\n\nSection IIIb of its remote attendance policy. Based on this office's review of the audio recording\nof the start of the meeting, Member Boske did not specify during the roll call that he was unable\n\nto attend the meeting in person, under which of the reasons in Section II. b. of the policy he was\nparticipating, or whether he was willing and able to participate by the remote means selected.\nInstead, Member Boske simply answered \" here\" during the roll call. Because section 7(c)\npermits remote attendance only to the extent allowed by the rules the public body has adopted,\nand because the Commission did not follow those rules, this office concludes that the\nCommission also violated section 7(c) of OMA.\n\nLetter from Sean Conway, DuPage County Election Commission. to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau, Office of the Attorney General (January 3, 2019), at 2.\nletter from Sean Conway, DuPage County Election Commission, to Teresa Lim, Assistant\n\nNonetheless, this office's review of the Commission's December 12, 2018.\n\nmeeting packet posted on the DuPage County website1° confirmed that each item on which the\nCommission took final action was approved by a unanimous vote. Thus, the vote of Member\n\nBoske, who participated in the meeting by telephone, would not appear to have changed the\noutcome of the Commission's final actions. Even if remedial action was warranted. the\n\nCommission was dissolved after the meeting at issue.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n56086 o 7 attendance\n\nimproper elec bd\n\n10 DuPage County, Election Commission— Committee Meeting, Packet (December 12, 2018),\navailable at http:// dupage. igm2. com/ Citizens/ FileOpen. aspx? Type= I& ID= 8256& Inline= True (last visited June 27,\n2019)."}
{"id":1288,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-04-29","case_number":null,"request_numbers":["56265","57071"],"title":"Northern Illinois University President's Staff Committee not a public body under OMA","filename":"56265 57071, issued April 29, 2019.pdf","rel_path":null,"word_count":2975,"summary":"The requester alleged that Northern Illinois University's 'President's Staff Committee' held meetings in violation of the Open Meetings Act. The PAC determined that the committee is not a 'public body' under the Act and therefore not subject to its requirements.","plain_summary":"A citizen complained that a university committee was holding private meetings without following open meeting laws. The Attorney General's office investigated and decided that this specific committee is not a 'public body' under the law. This means the committee is not required to post agendas, keep minutes, or allow the public to attend its meetings.","holding":"The PAC concluded that the Northern Illinois University President's Staff Committee is not a 'public body' subject to the Open Meetings Act.","legal_question":"Whether the President's Staff Committee of Northern Illinois University constitutes a 'public body' subject to the requirements of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Northern Illinois University","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester challenged the closed nature of meetings held by the university's President's Staff Committee.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/56265 57071, issued April 29, 2019.pdf","sha256":"0626c15e0c8c22462bc4ba0f1010df69aa49da5adf5f8001e467c7a2e0f7db87","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public body","university","open meetings act","advisory committee"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nApril 29, 2019\n\nVia electronic mail\nMr. Gregory A. Brady\nActing Vice President and General Counsel\nNorthern Illinois University\nAltgeld Hall 300\nDeKalb, Illinois 60115\ngbrady@niu.edu\nVia electronic mail\nMr. Thomas M. O'Grady\nAssistant University Counsel\nNorthern Illinois University\nAltgeld Hall 300\nDeKalb, Illinois 60115\ntogradyl@niu.edu\n\nRE: OMA Requests for Review- 2018 PAC 56265; 2019 PAC 57071\nDear\n\nMr. Brady, and Mr. O'Grady:\n\nThis determination letter is issued pursuant to sections 3.5(b) and 3.5(e) of the\nOpen Meetings Act (OMA) (5 ILCS 120/3.5(b), (e) (West 2016)). For the reasons that follow,\nthe Public Access Bureau concludes that the President's Staff Committee (Staff Committee) of\nNorthern Illinois University (University) is not a \"public body\" subject to the requirements of\nOMA.\n\n500 South Second Street. Springfield. Illinois 62701 • (217)782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\nI 00 West Randolph Street. Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\nlTY· tR77) r.1,.0110 • F.. �-- 1r..1 SI.\\ .;-io.1-..11r.\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 2\n\nBACKGROUND\nOn December 28, 2018,\nsubmitted a Request for Review to\nthe Public Access Bureau alleging that the Staff Committee had held meetings without adhering\nto the requirements of OMA. He stated that he had received a copy of the calendar for\nUniversity President, Lisa Freeman, covering the last six months in response to a Freedom of\nInformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) request, and had observed that the\nStaff Committee had held 14 meetings from July 10, 2018, to December 11, 2018. He stated that\nhe could not find the agendas or minutes of those meetings on the University's website. contended that the Staff Committee is subject to OMA to the same extent as the\nUniversity's Resource, Space, and Budget Committee (RSB Committee), which this office\ndetermined to be an advisory body subject to OMA in Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176,\nissued December 5, 2018. He referred this office to Article 18.1 of the University Council\nBylaws (Bylaws) 1 and argued: \"Like the RSB committee, the President's Staff committee is\ndefined in the University Council's Bylaws. \" 2\nOn January 7, 2019, this office forwarded a copy of the Request for Review to the\nUniversity's Office of General Counsel and asked it to respond in writing to the allegations in\nRequest for Review, particularly whether the Staff Committee is a \"public body\"\nas defined in section 1.02 of OMA (5 ILCS 120/1.02 (West 2016)). On January 14, 2019. this\noffice received a written response from the University and additional materials for this office's\nreview. On January 17,2019, this office forwarded a copy of the written response to-; the University provided\nwith copies of the additional materials on January\n18, 2019. On January 28, 2019,\nreplied to this office and attached a document\nentitled \"Senior Cabinet Recap for September 8, 2014.\" Additionally, on February 12, 2019,•.\n-sent this office a copy of a \"Senior Cabinet Recap for September 11, 2015,\" which he\nsaid shows that the Staff Committee meets without the University's president.\nOn March I, 2019,\nsubmitted a subsequent Request for Review to\nthe Public Access Bureau alleging: \"I attempted to locate the dates of meetings for the\nPresident's Staff committee for 2019 at its primary place of business -Altgeld Hall -this\nmorning. I couldn't locate any information in violation of OMA.\" 3\nNorthem Illinois University, Bylaws of Northern Illinois University. Section 18.1: The\nPresident's Staff, https://www.niu.edu/u�council/constitution/bylaws/article 18.shtml (last visited February 27,\n2019).\n1\n\n2\n\nE-mail from\n\n3\n\nE-mail from\n\no Public Access [Bureau] (December 28, 2018).\nto Public Access [Bureau] (March I, 2019).\n\n\fMr. Thomas M. O'Grady\nApril 29, 2019\nPage 3\n\nDETERMINATION\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (2016).\nSection 1.02 of OMA defines a \"public body\" as:\n[A]ll legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nAn \"advisory body,\" for purposes of OMA, is an entity that generally has defined\nresponsibilities and is a formal part of the structure of the public body that it advises. Board of'\nRegents of Regency University System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist. 1997).\nIn contrast, OMA \"is not intended to open to the public the deliberations of merely infonnal\nadvisory committees who discuss internal\" affairs of a public body. Pope v. Parkinson, 48 Ill.\nApp. 3d 797, 800 (4th Dist. 1977). In Pope, the court held that a committee of four faculty and\nfour student members appointed by the chancellor of a university to advise the chancellor and the\ndirector of the university's basketball arena on issues related to the arena was not subject to\nOMA because the committee was \"not formally appointed by, or accountable to, any public body\nof the State.\" Pope, 48 Ill. App. 3d at 799. Rather, the committee solely advised university\nadministrators and served at the pleasure of the chancellor. Pope, 48 Ill. App. 3d at 799. In\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, 868 (I st Dist. 2003), the com1\nheld that a group of presidents and chancellors of public universities, which made\nrecommendations to the Illinois Board of Higher Education (IBHE), was not an advisory body of\nIBHE after considering various factors for determining whether a group constitutes an advisory\nbody under OMA:\nThose factors include who appoints the members of the entity, the\nformality of their appointment, and whether they are paid for their\ntenure; the entity's assigned duties, including duties reflected in the\nentity's bylaws or authorizing statute; whether its role is solely\nadvisory or whether it also has a deliberative or investigative\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 4\n\nfunction; whether the entity is subject to government control or\notherwise accountable to any public body; whether the group has a\nbudget; its place within the larger organization or institution of\nwhich it is a part; and the impact of decisions or recommendations\nthat the group makes. Stukel, 344 Ill. App. 3d at 865.\nhighlighted, in 20 I 7 PAC 50176, this office analyzed whether\nAs\nthe RSB Committee is subject to the requirements of OMA. Ill. Att'y Gen. PAC Req. Rev. Ltr.\n50176, issued December 5, 2018. Examining the committee's functions and organizational\nstructure, this office observed, in pertinent part:\nThe RSB Committee's duties are defined in the University's\nbylaws, indicating that the RSB Committee is part of the formal\norganizational structure of the University-a primary consideration\nin determining whether it is subject to OMA. In addition, the\nbylaws specify the RSB Committee's composition and the lengths\nof its members' terms. The clearly assigned responsibilities,\ncomposition, and service periods signify the formality of the RSB\nCommittee. Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, at 9.\nThis office further observed that the Bylaws set forth specific reporting provisions for the RSB\nCommittee and noted that the committee's \"periodic reporting to the University Council and key\nUniversity officials indicates that there is significant University oversight of the RSB\nCommittee's activities.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, at IO. Because the RSB\nCommittee displayed key characteristics of an advisory body, this office concluded that the RSB\nCommittee is a \"public body\" subject to OMA.\nIn this matter, the Staff Committee at issue is listed under Article I 8 of the\nBylaws as one of two \"Administrative Committees.\" The University Council's \"Standing\nCommittees,\" including the RSB Committee, are addressed separately in Article 2. 4 Article I 8\nprovides, in pertinent part:\n\n18.1 The President's Staff.\n\n'Northern Illinois University, Bylaws of Northern Illinois University, Article 2: Standing\nCommittees of the University Council, https://www.niu.edu/u_council/constitution/bylaws/article 18.shtml (last\nvisited February 27, 2019).\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 5\n\n18.1.l Composition The president's staff shall consist of\nthe president and other members determined by the\npresident.\n18.1.2 Duties\n18.1.2.l To act as an advisory body to the president\nregarding the administration of the university.\n18.1.2.2 To discuss basic university policy as\nrequested by the president and to make\nrecommendations to the University Council\nconcerning such policies.\n18.1.2.3 To serve as a liaison body between the\nadministrative divisions of the university and\nbetween the constituent parts of these divisions.151\n\nIn its response to this office, the University stated that it had previously\nin late 2017 when he had requested online links to\ncorresponded via e-mail with\nthe Staff Committee's meeting agendas and minutes. The University provided this otlicc with a\ncopy of the correspondence, in which it had acknowledged that the Staff Committee is listed\nunder Article 18 of the Bylaws but had contended that the Committee is not a public body.\nUnder the framework of the Stukel factors, the University had asserted. in relevant part:\nThe Constitution and Bylaws merely acknowledge the President's\nability to hold an administrative committee that is determined by\nthe president, and not [sic] one else. The president's staff is purely\nadvisory to the president regarding internal university affairs. Any\nmembers of the president's staff are determined by the President.\nare not officially appointed in any way, and can be removed at the\ndiscretion of the President. The president's staff performs a purely\nadvisory function and serves at the pleasure of the President. The\nmake-up, responsibilities, formality, etc. of any grouping of the\n\n'Northern lllinois University, Bylaws of Northern lllinois University. Section I 8.1: The\nPresident's Staff, https://www.niu.edu/u_council/constitution/bylaws/article18.shtml (last visited February 27.\n2019).\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 6\n\npresident's staff is within the pure discretion of the President and\nnot of any public body of the State. 16l\nYet, in its response to this office, the University contended that \"the 'President's\nStaff as described in the University Constitution and Bylaws is not currently in operation.\" 7\nRather, the University asserted that \"NIU President Lisa Freeman maintains a 'Senior Leadership\nRoundtable [(Roundtable)],' which, as discussed [at a July 18, 2017, meeting], is different in\nform and substance from the 'President's Staff listed in the NIU Constitution and University\nBylaws.\" 8 According to the University, the \"Roundtable serves as an advisory body to the\nPresident, informing her of the key issues or developments in each of their respective\nadministrative divisions, and providing feedback or input to the President on the issues of the day\nor on administrative matters that the President is handling.\" 9 The University asserted that the\nRouridtable \"only serves at the pleasure of President Freeman and does not interact [with] or\notherwise make recommendations to the University Council at all. The duties of the Senior\nLeadership Roundtable are instead set by the President.\" 10\nIn reply to that answer,\nmaintained that the Staff Committee is part\nof the formal organizational structure of the University. He argued that \"[l]ike in Reynard where\nthe Council is created by the Academic Senate under its bylaws, the President's Council is\ncreated by the University Council under its bylaws.\" 11 He further argued that the Staff\n6 Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 14, 2019), at 3.\n\nLetter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 14, 2019), at 7.\n7\n\n'Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady,\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Altorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 13, 2018), at 3.\nLetter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 13, 2018), at 8.\n9\n\n'°Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady,\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 13, 2018), at 7.\nto AAG. Teresa Lim (January 28, 2019).\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 7\n\nCommittee is comparable to the council in Reynard with regard to member appointments and the\nscope of its responsibilities. Additionally,\ndisputed the University's claim that the\nRoundtable is different from the Staff Committee as described in the Bylaws, arguing that the\nformer is simply another name for the latter body. He contended: \"When you compare the\ndescription of the form and substance of the Senior Leadership Roundtable at its first meeting on\nJuly 18, 2017, it is exactly what the membership of the President's Staff committee is defined in\nthe bylaws, and the duties are overlapping. It is not an optional committee.\" 12\nThis office has reviewed the Bylaws and the parties' arguments and will assume,\nfor the sake of this analysis, that the Staff Committee is operable under the parameters set forth\nin the Bylaws. Although the Staff Committee is recognized in the Bylaws like the RSB\nCommittee, the former does not have the same clearly assigned composition, service periods, and\noversight as the latter. Unlike the RSB Committee's composition ofa specified set of faculty,\nstaff, and student members, the Staff Committee's membership is determined by the President.\nSimilarly, unlike the RSB Committee's service periods and reporting requirements which are set\nout in the Bylaws, the service periods and reporting terms for members of the Staff Committee\nare not specified in the Bylaws; according to the University, service periods and oversight are\nleft to the discretion of the President. Further, in contrast to the RSB Committee's\nresponsibilities, which are described broadly in the Bylaws, 13 the Staff Committee's prescribed\nduties appear limited primarily to supporting the Presidenf on internal administrative matters. In\nparticular, the Bylaws provide that the Staff Committee is to advise the president on\nadministrative issues and serve as a liaison between and within the University's administrative\ndivisions. While the Bylaws state that the Staff Committee's duties include making\nrecommendations to the University Council on issues discussed with the President, those\nrecommendations are expressly limited to \"basic university policy\" rather than substantive policy\nissues. (Emphasis added.) 14 Thus, the available information indicates that the Staff Committee\nserves a limited function and does not share the same grounding in the formal organizational\nstructure of the University Council as the RSB Committee.\n12 Letter from\n\no AAG. Teresa Lim (January 28, 2019).\n\n13 Under Article 2.6 of the University Bylaws, the duties of the RSB Committee include\nparticipating in long-range planning with University leadership; advising University leadership regarding goals and\npriorities for the use ofresources, space, and budgets, with periodic progress evaluations; making reports and\nrecommendations to the Faculty Senate and the University Council regarding resource allocations and utilization:\nand advising University leadership on critical budget issues. Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, issued\nDecember 5, 2018, at 6.\n\n\"Northern Illinois University, Bylaws of Northern Illinois University, Section 18.1.2.2,\nhttps://www.niu.edu/u_council/constitution/bylaws/article 18.shtml (last visited February 27, 2019).\n\n\fMr. Gregory A. Brady\nMr. Thomas M. O'Grady\nApril 29, 2019\nPage 8\n\nFurthermore, as the holding in Pope demonstrates, the creation of a group to\nadvise university administrators does not mean that the group must constitute a public body of\nthe university. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 35973, issued August 21, 2015, at 4\n(concluding that college's Paralegal Advisory Committee was not a \"public body\" subject to\nOMA because it functioned independently and had \"only a limited function within the College's\nformal organizational structure as a liaison between the educational program and professionals\nworking in the legal field.\"); Ill. Att'y Gen. PAC Req. Rev. Ltr. 45537, issued April 6, 2017\n(concluding that a Superintendent's Task Force was a not a \"public body\" under OMA because it\n\"was an internal group formed to assist the Superintendent rather than any public body.\"). This\nprovided revealed that they reflect\noffice's review of the \"Senior Cabinet Recaps\"\nsimilarly limited purposes related to advising the president, regardless of her apparent absence\nfrom one of the two gatherings. Because the Staff Committee lacks the key features of an\nadvisory body or subsidiary body, this office concludes that the Staff Committee is not a \"public\nbody\" subject to the requirements of OMA. Consequently, unde\nreasoning that\nthe Roundtable is just the Staff Committee by another name, the Roundtable is likewise not\nsubject to the requirements of OMA for the above-explained reasons. 15\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. 1 f you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\n?-\n\n1--L.-=-\n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n56265 o not a pb univ\n57071 o unfuniv\n\nMarch I, 20 I 9, Request for Review (2019 PAC 57071)\n15 For the same reasons,\nalleging that the Staff Committee had not adhered to OMA is unfounded.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed meetings of a university president's staff committee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56265/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nApril 29, 2019\n\nVia electronic mail\nMr. Gregory A. Brady\nActing Vice President and General Counsel\nNorthern Illinois University\nAltgeld Hall 300\nDeKalb, Illinois 60115\ngbrady@niu.edu\nVia electronic mail\nMr. Thomas M. O'Grady\nAssistant University Counsel\nNorthern Illinois University\nAltgeld Hall 300\nDeKalb, Illinois 60115\ntogradyl@niu.edu\n\nRE: OMA Requests for Review- 2018 PAC 56265; 2019 PAC 57071\nDear\n\nMr. Brady, and Mr. O'Grady:\n\nThis determination letter is issued pursuant to sections 3.5(b) and 3.5(e) of the\nOpen Meetings Act (OMA) (5 ILCS 120/3.5(b), (e) (West 2016)). For the reasons that follow,\nthe Public Access Bureau concludes that the President's Staff Committee (Staff Committee) of\nNorthern Illinois University (University) is not a \"public body\" subject to the requirements of\nOMA.\n\nBACKGROUND\nOn December 28, 2018,\nsubmitted a Request for Review to\nthe Public Access Bureau alleging that the Staff Committee had held meetings without adhering\nto the requirements of OMA. He stated that he had received a copy of the calendar for\nUniversity President, Lisa Freeman, covering the last six months in response to a Freedom of\nInformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) request, and had observed that the\nStaff Committee had held 14 meetings from July 10, 2018, to December 11, 2018. He stated that\nhe could not find the agendas or minutes of those meetings on the University's website. contended that the Staff Committee is subject to OMA to the same extent as the\nUniversity's Resource, Space, and Budget Committee (RSB Committee), which this office\ndetermined to be an advisory body subject to OMA in Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176,\nissued December 5, 2018. He referred this office to Article 18.1 of the University Council\nBylaws (Bylaws) 1 and argued: \"Like the RSB committee, the President's Staff committee is\ndefined in the University Council's Bylaws. \" 2\nOn January 7, 2019, this office forwarded a copy of the Request for Review to the\nUniversity's Office of General Counsel and asked it to respond in writing to the allegations in\nRequest for Review, particularly whether the Staff Committee is a \"public body\"\nas defined in section 1.02 of OMA (5 ILCS 120/1.02 (West 2016)). On January 14, 2019. this\noffice received a written response from the University and additional materials for this office's\nreview. On January 17,2019, this office forwarded a copy of the written response to-; the University provided\nwith copies of the additional materials on January\n18, 2019. On January 28, 2019,\nreplied to this office and attached a document\nentitled \"Senior Cabinet Recap for September 8, 2014.\" Additionally, on February 12, 2019,•.\n-sent this office a copy of a \"Senior Cabinet Recap for September 11, 2015,\" which he\nsaid shows that the Staff Committee meets without the University's president.\nOn March I, 2019,\nsubmitted a subsequent Request for Review to\nthe Public Access Bureau alleging: \"I attempted to locate the dates of meetings for the\nPresident's Staff committee for 2019 at its primary place of business -Altgeld Hall -this\nmorning. I couldn't locate any information in violation of OMA.\" 3\nNorthem Illinois University, Bylaws of Northern Illinois University. Section 18.1: The\nPresident's Staff, https://www.niu.edu/u�council/constitution/bylaws/article 18.shtml (last visited February 27,\n2019).\n1\n\n2\n\nDETERMINATION\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (2016).\nSection 1.02 of OMA defines a \"public body\" as:\n[A]ll legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nAn \"advisory body,\" for purposes of OMA, is an entity that generally has defined\nresponsibilities and is a formal part of the structure of the public body that it advises. Board of'\nRegents of Regency University System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist. 1997).\nIn contrast, OMA \"is not intended to open to the public the deliberations of merely infonnal\nadvisory committees who discuss internal\" affairs of a public body. Pope v. Parkinson, 48 Ill.\nApp. 3d 797, 800 (4th Dist. 1977). In Pope, the court held that a committee of four faculty and\nfour student members appointed by the chancellor of a university to advise the chancellor and the\ndirector of the university's basketball arena on issues related to the arena was not subject to\nOMA because the committee was \"not formally appointed by, or accountable to, any public body\nof the State.\" Pope, 48 Ill. App. 3d at 799. Rather, the committee solely advised university\nadministrators and served at the pleasure of the chancellor. Pope, 48 Ill. App. 3d at 799. In\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, 868 (I st Dist. 2003), the com1\nheld that a group of presidents and chancellors of public universities, which made\nrecommendations to the Illinois Board of Higher Education (IBHE), was not an advisory body of\nIBHE after considering various factors for determining whether a group constitutes an advisory\nbody under OMA:\nThose factors include who appoints the members of the entity, the\n\nfunction; whether the entity is subject to government control or\notherwise accountable to any public body; whether the group has a\nbudget; its place within the larger organization or institution of\nwhich it is a part; and the impact of decisions or recommendations\nthat the group makes. Stukel, 344 Ill. App. 3d at 865.\nhighlighted, in 20 I 7 PAC 50176, this office analyzed whether\nAs\nthe RSB Committee is subject to the requirements of OMA. Ill. Att'y Gen. PAC Req. Rev. Ltr.\n50176, issued December 5, 2018. Examining the committee's functions and organizational\nstructure, this office observed, in pertinent part:\nThe RSB Committee's duties are defined in the University's\nbylaws, indicating that the RSB Committee is part of the formal\norganizational structure of the University-a primary consideration\nin determining whether it is subject to OMA. In addition, the\nbylaws specify the RSB Committee's composition and the lengths\nof its members' terms. The clearly assigned responsibilities,\ncomposition, and service periods signify the formality of the RSB\nCommittee. Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, at 9.\nThis office further observed that the Bylaws set forth specific reporting provisions for the RSB\nCommittee and noted that the committee's \"periodic reporting to the University Council and key\nUniversity officials indicates that there is significant University oversight of the RSB\nCommittee's activities.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, at IO. Because the RSB\nCommittee displayed key characteristics of an advisory body, this office concluded that the RSB\nCommittee is a \"public body\" subject to OMA.\nIn this matter, the Staff Committee at issue is listed under Article I 8 of the\nBylaws as one of two \"Administrative Committees.\" The University Council's \"Standing\nCommittees,\" including the RSB Committee, are addressed separately in Article 2. 4 Article I 8\nprovides, in pertinent part:\n\n18.1 The President's Staff.\n\n'Northern Illinois University, Bylaws of Northern Illinois University, Article 2: Standing\nCommittees of the University Council, https://www.niu.edu/u_council/constitution/bylaws/article 18.shtml (last\n\n18.1.l Composition The president's staff shall consist of\nthe president and other members determined by the\npresident.\n18.1.2 Duties\n18.1.2.l To act as an advisory body to the president\nregarding the administration of the university.\n18.1.2.2 To discuss basic university policy as\nrequested by the president and to make\nrecommendations to the University Council\nconcerning such policies.\n18.1.2.3 To serve as a liaison body between the\nadministrative divisions of the university and\nbetween the constituent parts of these divisions.151\n\nIn its response to this office, the University stated that it had previously\nin late 2017 when he had requested online links to\ncorresponded via e-mail with\nthe Staff Committee's meeting agendas and minutes. The University provided this otlicc with a\ncopy of the correspondence, in which it had acknowledged that the Staff Committee is listed\nunder Article 18 of the Bylaws but had contended that the Committee is not a public body.\nUnder the framework of the Stukel factors, the University had asserted. in relevant part:\nThe Constitution and Bylaws merely acknowledge the President's\nability to hold an administrative committee that is determined by\nthe president, and not [sic] one else. The president's staff is purely\nadvisory to the president regarding internal university affairs. Any\nmembers of the president's staff are determined by the President.\nare not officially appointed in any way, and can be removed at the\ndiscretion of the President. The president's staff performs a purely\nadvisory function and serves at the pleasure of the President. The\nmake-up, responsibilities, formality, etc. of any grouping of the\n\n'Northern lllinois University, Bylaws of Northern lllinois University. Section I 8.1: The\nPresident's Staff, https://www.niu.edu/u_council/constitution/bylaws/article18.shtml (last visited February 27.\n\npresident's staff is within the pure discretion of the President and\nnot of any public body of the State. 16l\nYet, in its response to this office, the University contended that \"the 'President's\nStaff as described in the University Constitution and Bylaws is not currently in operation.\" 7\nRather, the University asserted that \"NIU President Lisa Freeman maintains a 'Senior Leadership\nRoundtable [(Roundtable)],' which, as discussed [at a July 18, 2017, meeting], is different in\nform and substance from the 'President's Staff listed in the NIU Constitution and University\nBylaws.\" 8 According to the University, the \"Roundtable serves as an advisory body to the\nPresident, informing her of the key issues or developments in each of their respective\nadministrative divisions, and providing feedback or input to the President on the issues of the day\nor on administrative matters that the President is handling.\" 9 The University asserted that the\nRouridtable \"only serves at the pleasure of President Freeman and does not interact [with] or\notherwise make recommendations to the University Council at all. The duties of the Senior\nLeadership Roundtable are instead set by the President.\" 10\nIn reply to that answer,\nmaintained that the Staff Committee is part\nof the formal organizational structure of the University. He argued that \"[l]ike in Reynard where\nthe Council is created by the Academic Senate under its bylaws, the President's Council is\ncreated by the University Council under its bylaws.\" 11 He further argued that the Staff\n6 Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 14, 2019), at 3.\n\nLetter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 14, 2019), at 7.\n7\n\n'Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady,\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Altorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 13, 2018), at 3.\nLetter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady.\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 13, 2018), at 8.\n9\n\n'°Letter from Gregory A. Brady, Acting Vice President and General, and Thomas O'Grady,\nAssistant University Council, Northern Illinois University, to Ms. Teresa Lim, Assistant Attorney General, Public\n\nCommittee is comparable to the council in Reynard with regard to member appointments and the\nscope of its responsibilities. Additionally,\ndisputed the University's claim that the\nRoundtable is different from the Staff Committee as described in the Bylaws, arguing that the\nformer is simply another name for the latter body. He contended: \"When you compare the\ndescription of the form and substance of the Senior Leadership Roundtable at its first meeting on\nJuly 18, 2017, it is exactly what the membership of the President's Staff committee is defined in\nthe bylaws, and the duties are overlapping. It is not an optional committee.\" 12\nThis office has reviewed the Bylaws and the parties' arguments and will assume,\nfor the sake of this analysis, that the Staff Committee is operable under the parameters set forth\nin the Bylaws. Although the Staff Committee is recognized in the Bylaws like the RSB\nCommittee, the former does not have the same clearly assigned composition, service periods, and\noversight as the latter. Unlike the RSB Committee's composition ofa specified set of faculty,\nstaff, and student members, the Staff Committee's membership is determined by the President.\nSimilarly, unlike the RSB Committee's service periods and reporting requirements which are set\nout in the Bylaws, the service periods and reporting terms for members of the Staff Committee\nare not specified in the Bylaws; according to the University, service periods and oversight are\nleft to the discretion of the President. Further, in contrast to the RSB Committee's\nresponsibilities, which are described broadly in the Bylaws, 13 the Staff Committee's prescribed\nduties appear limited primarily to supporting the Presidenf on internal administrative matters. In\nparticular, the Bylaws provide that the Staff Committee is to advise the president on\nadministrative issues and serve as a liaison between and within the University's administrative\ndivisions. While the Bylaws state that the Staff Committee's duties include making\nrecommendations to the University Council on issues discussed with the President, those\nrecommendations are expressly limited to \"basic university policy\" rather than substantive policy\nissues. (Emphasis added.) 14 Thus, the available information indicates that the Staff Committee\nserves a limited function and does not share the same grounding in the formal organizational\nstructure of the University Council as the RSB Committee.\n12 Letter from\n\no AAG. Teresa Lim (January 28, 2019).\n\n13 Under Article 2.6 of the University Bylaws, the duties of the RSB Committee include\nparticipating in long-range planning with University leadership; advising University leadership regarding goals and\npriorities for the use ofresources, space, and budgets, with periodic progress evaluations; making reports and\nrecommendations to the Faculty Senate and the University Council regarding resource allocations and utilization:\nand advising University leadership on critical budget issues. Ill. Att'y Gen. PAC Req. Rev. Ltr. 50176, issued\nDecember 5, 2018, at 6.\n\n\"Northern Illinois University, Bylaws of Northern Illinois University, Section 18.1.2.2,\nhttps://www.niu.edu/u_council/constitution/bylaws/article 18.shtml (last visited February 27, 2019).\n\nFurthermore, as the holding in Pope demonstrates, the creation of a group to\nadvise university administrators does not mean that the group must constitute a public body of\nthe university. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 35973, issued August 21, 2015, at 4\n(concluding that college's Paralegal Advisory Committee was not a \"public body\" subject to\nOMA because it functioned independently and had \"only a limited function within the College's\nformal organizational structure as a liaison between the educational program and professionals\nworking in the legal field.\"); Ill. Att'y Gen. PAC Req. Rev. Ltr. 45537, issued April 6, 2017\n(concluding that a Superintendent's Task Force was a not a \"public body\" under OMA because it\n\"was an internal group formed to assist the Superintendent rather than any public body.\"). This\nprovided revealed that they reflect\noffice's review of the \"Senior Cabinet Recaps\"\nsimilarly limited purposes related to advising the president, regardless of her apparent absence\nfrom one of the two gatherings. Because the Staff Committee lacks the key features of an\nadvisory body or subsidiary body, this office concludes that the Staff Committee is not a \"public\nbody\" subject to the requirements of OMA. Consequently, unde\nreasoning that\nthe Roundtable is just the Staff Committee by another name, the Roundtable is likewise not\nsubject to the requirements of OMA for the above-explained reasons. 15\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. 1 f you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\n?-\n\n1--L.-=-\n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n56265 o not a pb univ\n57071 o unfuniv\n\nMarch I, 20 I 9, Request for Review (2019 PAC 57071)\n15 For the same reasons,\nalleging that the Staff Committee had not adhered to OMA is unfounded."}
{"id":1290,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-05-06","case_number":null,"request_numbers":["56288"],"title":"Village of Lisbon Board violated OMA for improper closed session procedures and discussion","filename":"56288, issued May 6, 2019.pdf","rel_path":null,"word_count":2686,"summary":"The PAC reviewed a complaint regarding the Village of Lisbon Board of Trustees' November 19, 2018, closed session, finding that the Board failed to follow proper procedures for entering closed session and discussed one topic outside of authorized exceptions.","plain_summary":"A citizen complained that the Village of Lisbon Board of Trustees held an improper closed-door meeting. The Attorney General's office found that the Board did not follow the correct legal steps to enter the closed session and discussed a topic that should have been handled in public. While the Board did not violate the law regarding final actions taken in that meeting, the overall process for entering and conducting the closed session was legally deficient.","holding":"The Board of Trustees of the Village of Lisbon violated the Open Meetings Act by failing to follow proper procedures for entering closed session and by discussing a matter outside the scope of authorized closed session exceptions.","legal_question":"Did the Village of Lisbon Board of Trustees violate the Open Meetings Act by failing to follow proper procedures for entering closed session and by discussing matters outside of authorized exceptions?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(a)","5 ILCS 120/2(c)(1)","5 ILCS 120/2(c)(10)","5 ILCS 120/2(e)"],"public_body":"Village of Lisbon Board of Trustees","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Trustees held a closed session to discuss personnel and other matters without following proper procedural requirements.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_10/56288, issued May 6, 2019.pdf","sha256":"4c95846d6f848107cdf91c076c20d4692ae552be6bb23ca3cc4b024fea1afae3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","open meetings act","board of trustees","procedural violation"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"r\n\ni\n\n1\n\n-�\n\n]\n\nJ .\n\nOFFICE OF THE ATTORNEY GENERAL\nST ATE OF ILLINOIS\n\n)\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nMay 6, 2019\n\nVia electronic mail\n. Ms. Katy Pope\nClerk\nVillage of Lisbon\n104 North Canal Street\nNewark, Illinois 60541\nv-lisbon@attnet\nRE: OMA Request for Review - 2018 PAC 56288\nDear\n\nand Ms. Pope:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons that follow, the Public Access\nBureau concludes that, during its Novem_ber 19, 2018 meeting, the Board of Trustees (Board) of\nthe Village of Lisbon did not follow proper procedure for entering closed s·ession and improperly\n• discussed one matter that was outside the scope of the exceptions to the general requirement that\npublic bodies conduct business openly. However, the Public Access Bureau.also concludes that\nthe other discussion held during closed session was authorized by a closed session exception; and\nthat the Board did not take final action in closed session.\n\nBACKGROUND\nOn December 31, 2018, this office received a Request for Review from­\n-alleging that he \"did not believe the rules pertaining to executive session �\n�peel to the Board's November 19, 2018, closed session. \"From· agenda to going into\n\n500 South Second Street, Springfield, I\\linois 6270 I • (217)782-1090 • TTY: (217) 785 -2771 • Fax: (217)782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 • (312) 814-3000 • TTY: (312) 814-3374 • Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416\n\n\fMs. Katy Pope\nMay 6, 2019\nPage 2\n\nexecutive\n\nsession.\n\nI do\n\nnot\n\nbelieve the reason for executive\n\nsession\n\nis valid.\"'\n\nIn a telephone\n\nconversation with an Assistant Attorney General in the Public Access Bureau on January 10,\n2019,\nfurther explained that he received information indicating that the Board\nhad held a closed session discussion concerning whether to install a sign honoring the athletic\nachievement of a local student athlete, and clarified that he did not -believe the Board was\nallowed to discuss that matter in closed session.\n\nalso alleged that the Board\n\ndecided during that closed session not to install the sign but never took a vote in open session on\nthe matter.\n\nOn January 10, 2019, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide this office with copies of the closed session minutes and closed\n\nsession verbatim recording of the November 19, 2018, meeting for this office' s review, together\nwith a written response to\n\nallegations that the Board held an unauthorized\n\nclosed session discussion and took final action during that closed session. The Board furnished\nthe requested information and its written response on January 31, 2019.\nreplied on February 12, 2019.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2016):\nClosed Session Procedure\n\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 27, 2018) provides that \"[ a] ll meetings of public bodies shall be open\nto the public unless excepted in subsection ( c) and closed in accordance with Section 2a.\"\nSection 2a of OMA ( 5 ILCS 120/ 2a ( West 2016)) provides, in pertinent part:\n\nA public body may hold a meeting closed to the public, or\nclose a portion of a meeting to the public, upon a majority vote of a\nquorum present, taken at a meeting open to the public for which\nnotice has been given as required\nby this Act. * * * The vote of\n\neach member on the question of holding a. meeting closed to the\npublic and a citation to the specific exception contained in Section\n\n2 of this Act which authorizes the closing of the meeting to the\n\npublic shall be publicly disclosed at the time of the vote and\nOMA — Request for Review by Public Access Counselor ( PAC) from\nDecember\n\n22, 2018).\n\n\fMs. Katy Pope\nMay 6, 2019\nPage 3\n\nshall be recorded and entered into the minutes of the meeting.\nEmphasis added.)\n\nThe open session minutes from the November 19, 2018, meeting indicate that the\n\nBoard voted to close the meeting, but do not identify the specific exceptions contained in section\n2 of OMA ( 5 ILCS 120/ 2 ( West 2017 Supp.), as amended by Public Act 100- 646, effective July\n27, 2018) that the Board publicly recited when taking that vote. Instead, the minutes record the\nvote of the members on the motion to go into executive session, and state: \" The executive\nsession covered a few Personnel topics. i2\n\nIn its response to this office, the Board acknowledged that it discussed a request\n\nfor a sign honoring a local student, and asserted that.section 2( c)( 10) of OMA (5 ILCS\n120/ 2( c)( 10) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 27, 2018)\npermitted the Board to discuss that matter in a closed meeting. The Board further asserted that\n\nthe section 2( c)( 1) exception ( 5 ILLS 120/ 2( c)( 1) ( West 2017 Supp.), as amended by Public Act\n100- 646, effective July 27, 2018) authorized the remainder of its closed session discussion.\nBefore reaching the question of whether either of the section 2( c)' exceptions\n\nidentified by the Board initsresponse to the Request for Review authorized the discussions held\nin closed session, we must address the Board's failure to comply with the procedural\nrequirements outlined in section 2a of OMA. The minutes from the open session do not include\na reference to section 2( c)( 10) of OMA— either by reference to the statutory section number or\n\nthe language of the exception— as a basis for closing a portion of its meeting to the public.\nFurthermore, the statement in the minutes that the Board discussed \" a few Personnel topics,\"\n\ndoes not, adequately identify any exception that authorizes a public body to enter closed session.\n\nI11. Att' y Gen. Pub. Acc. Op. No. 15- 005, issued August 5, 2015, at 5; III. Att' y Gen. Pub. Acc.\nOp. No. 15- 007, issued September 16, 2015, at 4- 5. Section 2( c)( 1), which the Board identified\nin its response to the Request for Review, does not contain the word \" personnel,\" although that\n\nword is used in two other closed session exceptions that the Board did not cite in its response to\nthis office.\n\nAccordingly, the minutes from the November 19, 2018, do not comply with\n\nsection 2a of OMA as they contain no reference to either section 2( c)( 1) or 2( c)( 10) as a basis for\nclosing a portion of the meeting. This office cautions the Board to fully adhere to the procedures\nset forth in section 2a for entering closed session and to document the relevant exception( s) in its\nmeeting minutes. More specifically, if the Board wishes to close a portion of a meeting to\ndiscuss specific employees in the future, it must in open session either announce that it intends to\n\n2Village\n\nof\n\nLisbon\n\nBoard\n\nof Trustees,\n\nMeeting, November 19, 2018, Minutes 4.\n\n\fMs. Katy Pope\nMay 6, 2019\nPage 4\n\nclose the meeting pursuant to \" section 2( c)( 1)\" or recite language from section 2( c)( 1) instead of\nthe word \" personnel\" in order to sufficiently identify that exception.\nSection 2( c)( 10) of OMA\n\nSection 2( c)( 10) of OMA permits a public body to hold closed session discussions\n\nconcerning the \" placement of individual students in special education programs and other\nmatters\n\nto individual\n\nrelated\n\nstudents.\" (\n\nEmphasis added.)\n\nThe Board argues that it believed\n\nits discussion about the request for a sign recognizing a student from a local school fell under\n\nsection 2( c)( 10) because \" a discussion regarding one specific student' s achievements were being\nrecognized.\" 3 Based on our review of the minutes and verbatim recording of the November 19,\n\n2018, closed session meeting, the Board's response accurately describes a portion of the closed\ndiscussion that directly concerned an individual student.\nreply argues that\nthis discussion is not '-'executive session material\" but does not explain why a discussion\n\nconcerning the Board' s potential recognition of a specific student' s achievements is pot a matter\nrelated to individual\n\nstudents.\"\n4\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 111. 2d 49, 59\n2006). \"\n\nThe most reliable indicator of legislative intent is the statutory language, given its plain\n\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E. 2d 359, 372 ( 2012). Where the language of a statute is clear and\n\nunambiguous, a reviewing body \" may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\"\n\nHayashi v.\n\nIllinois Department of Financial and Professional Regulation, 2014 IL 116023, 116, 25N.E. 3d\n570, 576 ( 2013).\n\nThe plain language of section 2( c)( 10) permits public bodies to hold closed\nsession discussions that relate to individual students, such as whether to recognize a particular\n\nstudent' s achievements.\n\nAlthough this exception is likely to be most applicable to closed session\n\ndiscussions by school boards and other public bodies that govern educational institutions, the\nplain language of section 2( c)( 10) does not exclude from its scope closed session discussions by\nmunicipal public bodies. Accordingly, the Public Access Bureau determines that section\n2( c)( 10) of OMA authorized the Board' s closed session discussion of a request for a sign\nrecognizing an individual student.\n\n3Letter from Katy Pope, Clerk, Village of Lisbon, to Leah Bartelt, [ Assistant Attomey General,\nPublic\n\nAccess\n\nBureau] (\n\nundated).\n\n\fMs. Katy Pope\nMay6, 2019\nPage 5\n\nSection 2( c)( 1) of OMA\n\nThe Board explained that its other closed session topic concerned the nomination\n\nof a member of the Board for an award, and argued that this discussion was authorized by section\n\n2( c)( 1) of OMA. That exception permits a public body to discuss in closed session \"[ t] he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic body to determine its validity.\" The section 2( c) exceptions \" are in derogation of the\nrequirement that public bodies meet in the open, and therefore, the exceptions are to be strictly\n\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2( b) ( West 2017.\nSupp.), as amended by Public Act 100- 646, effective July 27, 2018). The \" use of the term\nspecific employees' in section 2( c)( 1) significantly limits the scope of the exception. That\nexception allows public bodies to discuss in closed session the hiring, merits, performance,\n\nconduct, or terms of employment of individual employees.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n12658, issued July 7, 2011, at 4.\nOur review of the closed session minutes and verbatim recording indicate that the\n\nBoard' s response to this office accurately describes the closed session discussion held from\n\nminute 17: 24 though minute 20: 35 as involving the nomination of a trustee for an award. That\ndiscussion exceeds the scope of section 2( c)( 1).\n\nThe Attorney General has issued a binding\n\nopinion concluding that elected officials are not considered employees for the purposes of the\nsection 2( c)( 1) exception. Ill. Att' y Gen. Pub. Acc. Op. No. 13- 017, issued November 21, 2017,\nat 4 (\" Because elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies, section 2( c)( 1) would not have provided a basis for the Board to\nclose\n\na\n\nmeeting\n\nto\n\ndiscuss the conduct\n\nof a\n\nBoard member.\").\n\nAccordingly, the Board violated\n\nsection 2( a) of OMA by discussing in closed session the nomination of a member of the Board\nfor an award.\n\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available, the above -referenced portions of the closed session\n\nverbatim recording of its November 19, 2018, meeting. The remaining portions of the recording\nthat discuss the individual student may remain confidential.\n\nFinal Action During Closed Session\nSection 2( e) of OMA ( 5 ILCS 120/ 2( e) ( West 2017 Supp.), as amended by Public\n\nAct 100- 646, effective July 27, 2018) provides, in pertinent part, that \"[ n] o final action may be\ntaken\n\nat a closed\n\nin a closed\n\nmeeting.\" ( Emphasis\n\nsession,\n\na public\n\nbody\n\nmust\n\nadded.)\n\nWhile a public body may take a preliminary vote\n\ntake all final\n\nactions\n\nin an open meeting.\n\nBoard; of\n\n\fMs. Katy Pope\nMay 6, 2019\nPage 6\n\nEducation of Springfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343,\n73- 74, 77 N. E. 3d 625, 637 ( 2017). \"\n\nUnder the plain language of section 2( e) of the Open\n\nMeetings Act, the public vote is not merely a ratification of a final action taken earlier in a closed\nsession; it is the final action. Without the public vote, no final action has occurred.\" School\nDistrict No. 186, 2017 IL 120343, ¶ 74, 77 N. E. 3d at 637.\n\nIn its response to the Request for Review, the Board asserts that it did not take\n\nfinal action on the request for the sign for the student during its November closed meeting, and in\nfact, held additional discussions concerning that issue during the open session portion of its\n\nDecember 17, 2018, and January 21, 2019, meetings. In support of its assertion, the Board\nprovided a copy of the approved minutes from its December 17, 2018, meeting, and a section of\n\nits draft minutes from its January 21, 2019. In reply,\n\nnotes that the issue about\n\nthe sign was not listed on the agendas for the November, December, or January meetings.\nOur review of the closed session recording from the November meeting indicates\nthat the Board discussed the sign issue but did not take final action on the matter at that meeting.\nThe minutes from the December meeting document an open session discussion, under the topic\nof \"Community Comments,\" on this issue, and indicate that the Board decided to draft a letter to\n\nthe family that made the request for the sign denying the request, and present that letter for the\nBoard' s consideration at the January meeting. The draft minutes from the January meeting\ndocument that the Board voted in open session on the request for a sign for the student.\n\nEven assuming the Board reached a consensus on the sign issue during its\nNovember 19, 2018, closed session, the minutes from later meetings indicate that the Board\n\nvoted against the sign during a meeting held on January 21, 2019. 4 Because final action\noccurred in open session on January 21, 2019, this office concludes that the Board did not violate\n\nsection 2( e) of OMA by taking final action in closed session during its November 19, 2018,\nmeeting.\n\n4The allegation in\nquestion\n\non\n\nthe\n\nagenda\n\nfor its January 21, 2019, meeting\n\nreply that the Board. failed to list its intended vote on the sign\nis outside the\n\nscope\n\nof\n\nthis Request for Review.\n\n\fMs. Katy Pope\nMay 6, 2019\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at ( 312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions. This correspondence\nserves to close this matter.\n\nVery truly yours;\n\nLEAH\n\nBARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n56288\n\no\n\n2a improper\n\n2c1\n\nimproper\n\n2c10\n\nproper\n\n2e final action\n\nproper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's closed-session discussion of personnel matters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56288/","full_text":"r\n\ni\n\n1\n\n-�\n\n]\n\nJ.\n\nOFFICE OF THE ATTORNEY GENERAL\nST ATE OF ILLINOIS)\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nMay 6, 2019\n\nVia electronic mail\n. Ms. Katy Pope\nClerk\nVillage of Lisbon\n104 North Canal Street\nNewark, Illinois 60541\nv-lisbon@attnet\nRE: OMA Request for Review - 2018 PAC 56288\nDear\n\nand Ms. Pope:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons that follow, the Public Access\nBureau concludes that, during its Novem_ber 19, 2018 meeting, the Board of Trustees (Board) of\nthe Village of Lisbon did not follow proper procedure for entering closed s·ession and improperly\n• discussed one matter that was outside the scope of the exceptions to the general requirement that\npublic bodies conduct business openly. However, the Public Access Bureau.also concludes that\nthe other discussion held during closed session was authorized by a closed session exception; and\nthat the Board did not take final action in closed session.\n\nBACKGROUND\nOn December 31, 2018, this office received a Request for Review from­\n-alleging that he \"did not believe the rules pertaining to executive session �\n�peel to the Board's November 19, 2018, closed session. \"From· agenda to going into\n\nexecutive\n\nsession.\n\nI do\n\nnot\n\nbelieve the reason for executive\n\nsession\n\nis valid.\"'\n\nIn a telephone\n\nconversation with an Assistant Attorney General in the Public Access Bureau on January 10,\n2019,\nfurther explained that he received information indicating that the Board\nhad held a closed session discussion concerning whether to install a sign honoring the athletic\nachievement of a local student athlete, and clarified that he did not -believe the Board was\nallowed to discuss that matter in closed session.\n\nalso alleged that the Board\n\ndecided during that closed session not to install the sign but never took a vote in open session on\nthe matter.\n\nOn January 10, 2019, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide this office with copies of the closed session minutes and closed\n\nsession verbatim recording of the November 19, 2018, meeting for this office's review, together\nwith a written response to\n\nallegations that the Board held an unauthorized\n\nclosed session discussion and took final action during that closed session. The Board furnished\nthe requested information and its written response on January 31, 2019.\nreplied on February 12, 2019.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2016):\nClosed Session Procedure\n\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 27, 2018) provides that \"[ a] ll meetings of public bodies shall be open\nto the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nSection 2a of OMA (5 ILCS 120/ 2a (West 2016)) provides, in pertinent part:\n\nA public body may hold a meeting closed to the public, or\nclose a portion of a meeting to the public, upon a majority vote of a\nquorum present, taken at a meeting open to the public for which\nnotice has been given as required\nby this Act. * * * The vote of\n\neach member on the question of holding a. meeting closed to the\npublic and a citation to the specific exception contained in Section\n\nshall be recorded and entered into the minutes of the meeting.\nEmphasis added.)\n\nThe open session minutes from the November 19, 2018, meeting indicate that the\n\nBoard voted to close the meeting, but do not identify the specific exceptions contained in section\n2 of OMA (5 ILCS 120/ 2 (West 2017 Supp.), as amended by Public Act 100- 646, effective July\n27, 2018) that the Board publicly recited when taking that vote. Instead, the minutes record the\nvote of the members on the motion to go into executive session, and state: \" The executive\nsession covered a few Personnel topics. i2\n\nIn its response to this office, the Board acknowledged that it discussed a request\n\nfor a sign honoring a local student, and asserted that.section 2(c)(10) of OMA (5 ILCS\n120/ 2(c)(10) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 27, 2018)\npermitted the Board to discuss that matter in a closed meeting. The Board further asserted that\n\nthe section 2(c)(1) exception (5 ILLS 120/ 2(c)(1) (West 2017 Supp.), as amended by Public Act\n100- 646, effective July 27, 2018) authorized the remainder of its closed session discussion.\nBefore reaching the question of whether either of the section 2(c)' exceptions\n\nidentified by the Board initsresponse to the Request for Review authorized the discussions held\nin closed session, we must address the Board's failure to comply with the procedural\nrequirements outlined in section 2a of OMA. The minutes from the open session do not include\na reference to section 2(c)(10) of OMA— either by reference to the statutory section number or\n\nthe language of the exception— as a basis for closing a portion of its meeting to the public.\nFurthermore, the statement in the minutes that the Board discussed \" a few Personnel topics,\"\n\ndoes not, adequately identify any exception that authorizes a public body to enter closed session.\n\nI11. Att' y Gen. Pub. Acc. Op. No. 15- 005, issued August 5, 2015, at 5; III. Att' y Gen. Pub. Acc.\nOp. No. 15- 007, issued September 16, 2015, at 4- 5. Section 2(c)(1), which the Board identified\nin its response to the Request for Review, does not contain the word \" personnel,\" although that\n\nword is used in two other closed session exceptions that the Board did not cite in its response to\nthis office.\n\nAccordingly, the minutes from the November 19, 2018, do not comply with\n\nsection 2a of OMA as they contain no reference to either section 2(c)(1) or 2(c)(10) as a basis for\nclosing a portion of the meeting. This office cautions the Board to fully adhere to the procedures\nset forth in section 2a for entering closed session and to document the relevant exception(s) in its\nmeeting minutes. More specifically, if the Board wishes to close a portion of a meeting to\ndiscuss specific employees in the future, it must in open session either announce that it intends to\n\n2 Village\n\nclose the meeting pursuant to \" section 2(c)(1)\" or recite language from section 2(c)(1) instead of\nthe word \" personnel\" in order to sufficiently identify that exception.\nSection 2(c)(10) of OMA\n\nSection 2(c)(10) of OMA permits a public body to hold closed session discussions\n\nconcerning the \" placement of individual students in special education programs and other\nmatters\n\nto individual\n\nrelated\n\nstudents.\" (Emphasis added.)\n\nThe Board argues that it believed\n\nits discussion about the request for a sign recognizing a student from a local school fell under\n\nsection 2(c)(10) because \" a discussion regarding one specific student's achievements were being\nrecognized.\" 3 Based on our review of the minutes and verbatim recording of the November 19,\n\n2018, closed session meeting, the Board's response accurately describes a portion of the closed\ndiscussion that directly concerned an individual student.\nreply argues that\nthis discussion is not '-'executive session material\" but does not explain why a discussion\n\nconcerning the Board's potential recognition of a specific student's achievements is pot a matter\nrelated to individual\n\nstudents.\"\n4\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 111. 2d 49, 59\n2006). \"\n\nThe most reliable indicator of legislative intent is the statutory language, given its plain\n\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E. 2d 359, 372 (2012). Where the language of a statute is clear and\n\nunambiguous, a reviewing body \" may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\"\n\nHayashi v.\n\nIllinois Department of Financial and Professional Regulation, 2014 IL 116023, 116, 25N.E. 3d\n570, 576 (2013).\n\nThe plain language of section 2(c)(10) permits public bodies to hold closed\nsession discussions that relate to individual students, such as whether to recognize a particular\n\nstudent's achievements.\n\nAlthough this exception is likely to be most applicable to closed session\n\ndiscussions by school boards and other public bodies that govern educational institutions, the\nplain language of section 2(c)(10) does not exclude from its scope closed session discussions by\nmunicipal public bodies. Accordingly, the Public Access Bureau determines that section\n2(c)(10) of OMA authorized the Board's closed session discussion of a request for a sign\nrecognizing an individual student.\n\n3 Letter from Katy Pope, Clerk, Village of Lisbon, to Leah Bartelt, [ Assistant Attomey General,\nPublic\n\nAccess\n\nBureau] (undated).\n\nMs. Katy Pope\nMay6, 2019\nPage 5\n\nSection 2(c)(1) of OMA\n\nThe Board explained that its other closed session topic concerned the nomination\n\nof a member of the Board for an award, and argued that this discussion was authorized by section\n\n2(c)(1) of OMA. That exception permits a public body to discuss in closed session \"[ t] he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic body to determine its validity.\" The section 2(c) exceptions \" are in derogation of the\nrequirement that public bodies meet in the open, and therefore, the exceptions are to be strictly\n\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2017.\nSupp.), as amended by Public Act 100- 646, effective July 27, 2018). The \" use of the term\nspecific employees' in section 2(c)(1) significantly limits the scope of the exception. That\nexception allows public bodies to discuss in closed session the hiring, merits, performance,\n\nconduct, or terms of employment of individual employees.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n12658, issued July 7, 2011, at 4.\nOur review of the closed session minutes and verbatim recording indicate that the\n\nBoard's response to this office accurately describes the closed session discussion held from\n\nminute 17: 24 though minute 20: 35 as involving the nomination of a trustee for an award. That\ndiscussion exceeds the scope of section 2(c)(1).\n\nThe Attorney General has issued a binding\n\nopinion concluding that elected officials are not considered employees for the purposes of the\nsection 2(c)(1) exception. Ill. Att' y Gen. Pub. Acc. Op. No. 13- 017, issued November 21, 2017,\nat 4 (\" Because elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies, section 2(c)(1) would not have provided a basis for the Board to\nclose\n\na\n\nmeeting\n\nto\n\ndiscuss the conduct\n\nof a\n\nBoard member.\").\n\nAccordingly, the Board violated\n\nsection 2(a) of OMA by discussing in closed session the nomination of a member of the Board\nfor an award.\n\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available, the above -referenced portions of the closed session\n\nverbatim recording of its November 19, 2018, meeting. The remaining portions of the recording\nthat discuss the individual student may remain confidential.\n\nFinal Action During Closed Session\nSection 2(e) of OMA (5 ILCS 120/ 2(e) (West 2017 Supp.), as amended by Public\n\nAct 100- 646, effective July 27, 2018) provides, in pertinent part, that \"[ n] o final action may be\ntaken\n\nat a closed\n\nin a closed\n\nmeeting.\" (Emphasis\n\nsession,\n\na public\n\nbody\n\nmust\n\nadded.)\n\nEducation of Springfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343,\n73- 74, 77 N. E. 3d 625, 637 (2017). \"\n\nUnder the plain language of section 2(e) of the Open\n\nMeetings Act, the public vote is not merely a ratification of a final action taken earlier in a closed\nsession; it is the final action. Without the public vote, no final action has occurred.\" School\nDistrict No. 186, 2017 IL 120343, ¶ 74, 77 N. E. 3d at 637.\n\nIn its response to the Request for Review, the Board asserts that it did not take\n\nfinal action on the request for the sign for the student during its November closed meeting, and in\nfact, held additional discussions concerning that issue during the open session portion of its\n\nDecember 17, 2018, and January 21, 2019, meetings. In support of its assertion, the Board\nprovided a copy of the approved minutes from its December 17, 2018, meeting, and a section of\n\nits draft minutes from its January 21, 2019. In reply,\n\nnotes that the issue about\n\nthe sign was not listed on the agendas for the November, December, or January meetings.\nOur review of the closed session recording from the November meeting indicates\nthat the Board discussed the sign issue but did not take final action on the matter at that meeting.\nThe minutes from the December meeting document an open session discussion, under the topic\nof \"Community Comments,\" on this issue, and indicate that the Board decided to draft a letter to\n\nthe family that made the request for the sign denying the request, and present that letter for the\nBoard's consideration at the January meeting. The draft minutes from the January meeting\ndocument that the Board voted in open session on the request for a sign for the student.\n\nEven assuming the Board reached a consensus on the sign issue during its\nNovember 19, 2018, closed session, the minutes from later meetings indicate that the Board\n\nvoted against the sign during a meeting held on January 21, 2019. 4 Because final action\noccurred in open session on January 21, 2019, this office concludes that the Board did not violate\n\nsection 2(e) of OMA by taking final action in closed session during its November 19, 2018,\nmeeting.\n\n4 The allegation in\nquestion\n\non\n\nthe\n\nagenda\n\nfor its January 21, 2019, meeting\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at (312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions. This correspondence\nserves to close this matter.\n\nVery truly yours;\n\nLEAH\n\nBARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n56288\n\no\n\n2a improper\n\n2c1\n\nimproper\n\n2c10\n\nproper\n\n2e final action\n\nproper\n\nmun"}
{"id":1291,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-05","case_number":null,"request_numbers":["56628","56642"],"title":"DuPage Township Board violated OMA by banning public comment at special meeting","filename":"56628 56642, issued June 5, 2023.pdf","rel_path":null,"word_count":1435,"summary":"The requester alleged that the DuPage Township Board of Trustees violated the Open Meetings Act by failing to provide an opportunity for public comment during a special meeting. The PAC determined that the Board's failure to allow public comment constituted a violation of the Act.","plain_summary":"A citizen complained that the DuPage Township Board did not allow the public to speak during a special meeting. The Attorney General's office reviewed the case and found that the Board broke the law by failing to provide the required opportunity for public comment. While the Board cannot undo the past meeting, the PAC instructed them to follow these rules at all future meetings.","holding":"The DuPage Township Board of Trustees violated section 2.06(g) of the Open Meetings Act by prohibiting the public from addressing the board during its January 29, 2019, special meeting.","legal_question":"Whether the DuPage Township Board of Trustees violated section 2.06(g) of the Open Meetings Act by failing to provide an opportunity for public comment during a special meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"DuPage Township Board of Trustees","requesting_party":"Mr. Kirk Allen","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The failure of a township board to provide an opportunity for public comment during a special meeting.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/56628 56642, issued June 5, 2023.pdf","sha256":"7f76749d5501acbf064e47d315a53c1a1a30d164c08b766c18b6b554bb61391e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","township board","special meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 5, 2023\n\nVia electronic mail\n\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Gary Marschke\n\nSupervisor\nDuPage Township\n\n[street address redacted for site publication -- see original PDF]\ngmarschke@dupagetownship.com\nRE: OMA Requests for Review – 2019 PAC 56628; 2019 PAC 56642\nDear Mr. Allen,\n\nand Mr. Marschke:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). 1\nOn February 2, 2019, the Public Access Bureau received Mr. Kirk Allen' s\n\nRequest for Review alleging that the DuPage Township (Township) Board of Trustees (Board)\n\n1This office has consolidated these two Requests for Review in this determination because they\nconcern similar allegations and legal issues.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Kirk Allen\nThe Honorable Gary Marschke\n\nJune 5, 2023\nPage 2\n\nviolated section 2.06( g) of OMA2 by failing to provide an opportunity for public comment\n\nduring its January 29, 2019, special meeting.3 On March 7, 2019, this office sent a copy of the\nRequest for Review to the Board and asked it to provide a written response to the allegations in\n\nMr. Allen's Request for Review. On March 15, 2019, then-counsel for the Board provided a\nwritten answer. 4 Mr. Allen replied on April 3, 2019.\nOn January 31, 2019, the Public Access Bureau received\n\nRequest for Review, which asserted that he was not permitted to address the Board during the\npublic comment portion of the Board' s January 29, 2019, special meeting. 5 On February 26,\n\n2019, this office sent a copy of the Request for Review to the Board and asked it to provide a\nwritten response to the allegations in\n\nRequest for Review. On June 6, 2019, the\n\nTownship provided the requested materials, and on June 21, 2019, counsel for the Township\nprovided a written answer. 6\n\ndid not submit a reply.\n\nSection 2(a) of OMA7 provides that \"[ a] ll meetings of public bodies shall be open\n\nto the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" In\norder for the requirements of OMA to apply, a gathering must constitute a \" meeting\" as defined\n\nby section 1.02 of OMA:8\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means ( such\n\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\n\n25 ILCS 120/2.06(g) (West 2018).\n32019 PAC 56628.\n4Letter from John D. Spina, DuPage Township Attorney, Spina McGuire and Okal, P.C., to\nShannon Barnaby, Assistant Attorney General, Public Access Bureau (March 15, 2019).\n52019 PAC 56642.\n6Letter from Jayman A. Avery III, Odelson & Sterk, Ltd., to [Sarbani] Mukherjee, [ Assistant\nAttorney General], [ Public Access Bureau] ( June 21, 2019).\n75 ILCS 120/2(a) ( West 2018).\n85 ILCS 120/1.02 (West 2018).\n\n\fMr. Kirk Allen\nThe Honorable Gary Marschke\n\nJune 5, 2023\nPage 3\n\nfor a 5-member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nAccordingly, for a 5-member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\n\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\nThe Board is a 5-member public body comprised of the Township supervisor and four trustees.\n\nSee 60 ILCS 1/80-5(a) ( West 2020). Accordingly, under the above-cited statutory definition of a\nmeeting,\" when at least three members of the Board engage in contemporaneous, interactive\n\ncommunications concerning Township business, those discussions would ordinarily constitute\nBoard meetings subject to the procedural safeguards and requirements of OMA.\nSection 2.06( g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This office has issued a variety of binding opinions affirming that a public body must\n\nprovide an opportunity for public comment at each open meeting, subject to any reasonable rules\nit has established and recorded. See, for example, Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009,\n\nissued September 4, 2014, at 2; Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30,\n2014, at 2; Ill. Att' y Gen. Pub. Acc. Op. No. 19- 002, issued January 9, 2019, at 3; Ill. Att' y Gen.\n\nPub. Acc. Op. No. 19-009, issued October 1, 2019, at 3; Ill. Att'y Gen. Pub. Acc. Op. No. 21009, issued September 21, 2021, at 8.\nThe Board' s response in both matters acknowledged that no time was provided for\n\npublic comment at the Board's January 29, 2019, special meeting. The Board, however, argued\nthat it did not violate OMA because before the time designated for public comment on the\n\nagenda occurred,9 the gathering no longer constituted a \" meeting.\" Specifically, the Board stated\nthat at the start of the Board' s January 29, 2019, special meeting, all five Board members were\n\npresent. However, after the Board voted to accept the then-Township supervisor's resignation,\nwhich was listed as agenda item V,10 two Board members left the meeting, leaving only two\n\nBoard members in attendance. The Board asserted that because there was no longer a quorum of\nthe Board present, the meeting had to be adjourned. This office has reviewed the video of the\n9The agenda for the Board's January 29, 2019, special meeting included public comment as agenda\nitem VIII.\n10DuPage Township, Agenda Item VIII, Acceptance of Township Supervisor, William Mayer's\nResignation (January 29, 2019).\n\n\fMr. Kirk Allen\nThe Honorable Gary Marschke\n\nJune 5, 2023\nPage 4\n\nmeeting in question11 which supports the Board' s description of the circumstances that occurred\n\nduring the special meeting.\nAs discussed above, a public body violates section 2.06(g) of OMA when it does\nnot provide the public with an opportunity to address its members during an open meeting. The\n\nBoard convened a meeting on January 29, 2019, at which all five Board members were initially\npresent, and deliberated and acted on six agenda items pertaining to the public business of the\n\nTownship before adjourning. Therefore, this meeting was subject to all of the procedural\nsafeguards and requirements of OMA, including the requirement to allow an opportunity for\n\npublic comment. The Board prioritized other matters of public business and did not provide an\nopportunity for public comment before two Board members voluntarily left, which ended the\n\nmeeting. Although the Board argues that it had no choice but to adjourn with only two members\nremaining, the voluntary departure of the other two Board members deprived the public of an\n\nopportunity to address the Board. The public's statutory right to address the Board cannot be\ncircumvented by certain Board members voluntarily departing the meeting before the public had\n\na chance to provide public comment. See Roxana Community Unit School Dist. No. 1 v.\nEnvironmental Protection Agency, 2013 IL App ( 4th) 120825, ¶¶ 17, 57- 58, 998 N.E.2d 961, 965,\n\n971 (2013) (board violated OMA by prohibiting the public from addressing the board in open\nsession). Accordingly, this office concludes that the Board violated section 2.06( g) during its\n\nJanuary 29, 2019, special meeting.\nAlthough there are no means by which the Board can remedy its violation of\nsection 2.06( g) in this instance, this office requests that the Board comply with the requirements\n\nof section 2.06(g) at future meetings.\n\n11YouTube, DuPage Township Special Meeting 1 29 2019, Edgar County Watchdogs, available at\nDuPage Township Special Meeting 1 29 2019 – YouTube (last visited December 7, 2022).\n\n\fr.Kirk Allen\nThe Honorable Gary Marschke\n\nJune 5, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, my e-mail address is\nShannon. Barnaby@ilag. gov. This file is closed.\nVery truly yours,\n\nSHANNON BARNABY\n\nSenior Assistant Attorney General\nPublic Access Bureau\n56628 56642 consol o 206g improper mun\ncc:\n\nVia electronic mail\n\nMr. Ross Secler\nOdelson & Sterk, Ltd.\n\n3318 West 95th Street\nEvergreen Park, Illinois 60805\n\nrsecler@odelsonsterk.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A township board's failure to allow public comment at a special meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56628/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 5, 2023\n\nVia electronic mail\n\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Gary Marschke\n\nSupervisor\nDuPage Township\n\n[street address redacted for site publication -- see original PDF]\ngmarschke@dupagetownship.com\nRE: OMA Requests for Review – 2019 PAC 56628; 2019 PAC 56642\nDear Mr. Allen,\n\nand Mr. Marschke:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). 1\nOn February 2, 2019, the Public Access Bureau received Mr. Kirk Allen's\n\nRequest for Review alleging that the DuPage Township (Township) Board of Trustees (Board)\n\n1 This office has consolidated these two Requests for Review in this determination because they\nconcern similar allegations and legal issues.\n\nviolated section 2.06(g) of OMA2 by failing to provide an opportunity for public comment\n\nduring its January 29, 2019, special meeting.3 On March 7, 2019, this office sent a copy of the\nRequest for Review to the Board and asked it to provide a written response to the allegations in\n\nMr. Allen's Request for Review. On March 15, 2019, then-counsel for the Board provided a\nwritten answer. 4 Mr. Allen replied on April 3, 2019.\nOn January 31, 2019, the Public Access Bureau received\n\nRequest for Review, which asserted that he was not permitted to address the Board during the\npublic comment portion of the Board's January 29, 2019, special meeting. 5 On February 26,\n\n2019, this office sent a copy of the Request for Review to the Board and asked it to provide a\nwritten response to the allegations in\n\nRequest for Review. On June 6, 2019, the\n\nTownship provided the requested materials, and on June 21, 2019, counsel for the Township\nprovided a written answer. 6\n\ndid not submit a reply.\n\nSection 2(a) of OMA7 provides that \"[ a] ll meetings of public bodies shall be open\n\nto the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" In\norder for the requirements of OMA to apply, a gathering must constitute a \" meeting\" as defined\n\nby section 1.02 of OMA:8\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\n\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\n\n25 ILCS 120/2.06(g) (West 2018).\n32019 PAC 56628.\n4 Letter from John D. Spina, DuPage Township Attorney, Spina McGuire and Okal, P.C., to\nShannon Barnaby, Assistant Attorney General, Public Access Bureau (March 15, 2019).\n52019 PAC 56642.\n6 Letter from Jayman A. Avery III, Odelson & Sterk, Ltd., to [Sarbani] Mukherjee, [ Assistant\n\nfor a 5-member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nAccordingly, for a 5-member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\n\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\nThe Board is a 5-member public body comprised of the Township supervisor and four trustees.\n\nSee 60 ILCS 1/80-5(a) (West 2020). Accordingly, under the above-cited statutory definition of a\nmeeting,\" when at least three members of the Board engage in contemporaneous, interactive\n\ncommunications concerning Township business, those discussions would ordinarily constitute\nBoard meetings subject to the procedural safeguards and requirements of OMA.\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This office has issued a variety of binding opinions affirming that a public body must\n\nprovide an opportunity for public comment at each open meeting, subject to any reasonable rules\nit has established and recorded. See, for example, Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009,\n\nissued September 4, 2014, at 2; Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30,\n2014, at 2; Ill. Att' y Gen. Pub. Acc. Op. No. 19- 002, issued January 9, 2019, at 3; Ill. Att' y Gen.\n\nPub. Acc. Op. No. 19-009, issued October 1, 2019, at 3; Ill. Att'y Gen. Pub. Acc. Op. No. 21009, issued September 21, 2021, at 8.\nThe Board's response in both matters acknowledged that no time was provided for\n\npublic comment at the Board's January 29, 2019, special meeting. The Board, however, argued\nthat it did not violate OMA because before the time designated for public comment on the\n\nagenda occurred,9 the gathering no longer constituted a \" meeting.\" Specifically, the Board stated\nthat at the start of the Board's January 29, 2019, special meeting, all five Board members were\n\npresent. However, after the Board voted to accept the then-Township supervisor's resignation,\nwhich was listed as agenda item V,10 two Board members left the meeting, leaving only two\n\nBoard members in attendance. The Board asserted that because there was no longer a quorum of\nthe Board present, the meeting had to be adjourned. This office has reviewed the video of the\n9 The agenda for the Board's January 29, 2019, special meeting included public comment as agenda\n\nmeeting in question11 which supports the Board's description of the circumstances that occurred\n\nduring the special meeting.\nAs discussed above, a public body violates section 2.06(g) of OMA when it does\nnot provide the public with an opportunity to address its members during an open meeting. The\n\nBoard convened a meeting on January 29, 2019, at which all five Board members were initially\npresent, and deliberated and acted on six agenda items pertaining to the public business of the\n\nTownship before adjourning. Therefore, this meeting was subject to all of the procedural\nsafeguards and requirements of OMA, including the requirement to allow an opportunity for\n\npublic comment. The Board prioritized other matters of public business and did not provide an\nopportunity for public comment before two Board members voluntarily left, which ended the\n\nmeeting. Although the Board argues that it had no choice but to adjourn with only two members\nremaining, the voluntary departure of the other two Board members deprived the public of an\n\nopportunity to address the Board. The public's statutory right to address the Board cannot be\ncircumvented by certain Board members voluntarily departing the meeting before the public had\n\na chance to provide public comment. See Roxana Community Unit School Dist. No. 1 v.\nEnvironmental Protection Agency, 2013 IL App (4th) 120825, ¶¶ 17, 57- 58, 998 N.E.2d 961, 965,\n\n971 (2013) (board violated OMA by prohibiting the public from addressing the board in open\nsession). Accordingly, this office concludes that the Board violated section 2.06(g) during its\n\nJanuary 29, 2019, special meeting.\nAlthough there are no means by which the Board can remedy its violation of\nsection 2.06(g) in this instance, this office requests that the Board comply with the requirements\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, my e-mail address is\nShannon. Barnaby@ilag. gov. This file is closed.\nVery truly yours,\n\nSHANNON BARNABY\n\nSenior Assistant Attorney General\nPublic Access Bureau\n56628 56642 consol o 206g improper mun\ncc:\n\nVia electronic mail\n\nMr. Ross Secler\nOdelson & Sterk, Ltd.\n\n3318 West 95th Street\nEvergreen Park, Illinois 60805\n\nrsecler@odelsonsterk.com"}
{"id":1292,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-04-05","case_number":null,"request_numbers":["56805"],"title":"Rutland-Dundee Fire Protection District Board violated OMA by failing to provide proper agenda notice for referendum vote","filename":"56805, issued April 5, 2019.pdf","rel_path":null,"word_count":2714,"summary":"A requester alleged that the Rutland-Dundee Fire Protection District Board violated the Open Meetings Act by voting on a referendum question that was not listed on the meeting agenda. The PAC determined that the Board failed to provide proper advance notice of the vote as required by OMA.","plain_summary":"A citizen complained that a local fire district board voted on a ballot referendum without listing that topic on their public meeting agenda. The Attorney General's office agreed that the board failed to give the public proper notice of the vote. While no corrective action could be taken because the election had already passed, the board was advised to ensure all future final actions are clearly listed on their agendas.","holding":"The Board of Trustees of the Rutland-Dundee Fire Protection District violated the Open Meetings Act by failing to provide proper notice on its agenda for a vote on a referendum resolution.","legal_question":"Whether the Board violated section 2.02(c) of the Open Meetings Act by taking final action on a resolution that was not sufficiently identified on the meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Rutland-Dundee Fire Protection District Board of Trustees","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board voted to place a referendum question on the ballot without including the item on the meeting agenda.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/56805, issued April 5, 2019.pdf","sha256":"7475f18e14b1b834cfe89de5f898ef2e298e2d6c1b8795c0852bd817d606d893","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","referendum","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nApril 5, 2019\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Don Rage\nPresident, Board of Trustees\nRutland - Dundee Fire Protection District\n11 East Higgins Road\nGilberts, Illinois 60136\n\ndrage@rdfpd. org\nVia electronic mail\nMr. Bernard K. Weiler\n\nAttorney for Rutland -Dundee Fire Protection District\nMickey, Wilson, Weiler, Renzi &\n\nAndersson, P. C.\n\n140 South Municipal Drive\nSugar Grove, Illinois 60554\nbkw@mickeywilson. com\n\nRE:\n\nDear\n\nOMA Request for Review.— 2019 PAC 56805\n\nMr. Rage, and Mr. Weiler:\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Board of Trustees ( Board) of the Rutland - Dundee Fire Protection\n\nDistrict ( District) did not provide proper notice on the agenda for its January 14, 2019, meeting\nof its vote on a resolution to place a referendum question on the ballot for the April 2, 2019,\nelection.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • ITY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University\n\nAve.. Carbondale.\n\nIllinois 62901 •\n\n16181529-\n\n61X) 529- 6416\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril 5, 2019\nPage 2\n\nBACKGROUND\n\nOn February 11, 2019,\nsubmitted a Request for Review to the\nPublic Access Bureau alleging that the Board potentially violated OMA during its January 14,\n2019, meeting by voting to place a referendum question on the ballot for the upcoming April 2.\n2019, election without having listed that topic on the meeting's agenda. Specifically, he asserted:\nThe minutes state that the trustee asked the Attorney about the\npossibility of placing a non bi[ n] ding referendum question on the\nballot and the next line of the minutes had a trustee making a\nmotion on a lengthy question that absolutely had to be predetermined.\n\nThis was the last night that a referendum question\n\ncould be submitted to the County and it was filed shortly after.It1\nHe contended that the referendum\nAgenda\n\nitem[.]\"\n\nquestion \" was never disclosed to the Public. never listed as an\n\n2 This office construed\n\nclaim as alleging a violation of section\n\n2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West 2016)).\n\nOn February 19, 2019, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its January 14, 2019, meeting agenda\nand minutes, together with a written response to\nOMA allegation. In particular, this\noffice asked the Board to address whether its vote on placing the referendum question on the\n\nballot qualified as final action. On February 21, 2019,\nsent this office an e- mail\nsupplementing his Request for Review by stating that a named member of the audience had\n\nvoiced an objection during the meeting to the lack of advance notice for the referendum question\n\nvote 3 On February 28, 2019, this office received a written response from the Board and meeting\nmaterials for this office' s review. On March 5, 2019, this office forwarded a copy of the Board' s\n\nresponse to\n\nhe replied that same day. On April 3, 2019,\n\ninformed this office\n\nthat the three challengers for the three Board positions had won the election and that the\n\nE- mail from\n\nto Sarah [ Pratt] ( February 1 I, 2019).\n\n2E - mail from\n\nto Sarah [ Pratt] ( February 11, 2019).\n\nThis office notes that although\n\nquestioned whether this individual' s comment should\n\nhave been included in the meeting minutes, the Public Access Bureau has determined that OMA generally does not\nrequire public comments to be documented in meeting minutes. See 111. Att' y Gen. PAC Req. Rev. Ltr. 36909,\nissued September 2, 2015, at 2 ( noting that section 2. 06( a)( 3) of OMA ( 5 ILCS 120/ 2. 06( a)( 3) ( West 2016)) requires\n\nminutes to include \" a summary of discussion on all matters proposed, deliberated, or decided\" by the public body,\nrather\n\nthan\n\nbrief discussions initiated by a member of the public that do not rise to the level of deliberation).\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril 5, 2019\nPage 3\n\nreferendum question had been rejected by the voters, but that he still sought a determination from\nthis office to provide guidance.\n\nDETERMINATION\n\nIt is the public policy of this State that * * *\n\ninformed as to the conduct\n\nof their\n\nbusiness.\"\n\nthe people have a right to be\n\n5 ILCS 120/ 1 ( West 2016). \" The Open Meetings\n\nAct provides that public agencies exist to aid in the conduct of the people's business, and that the\n\nintent of the Act is to assure that agency actions be taken openly and that their deliberations be\nconducted openly.\" Gosnell v. Hogan, 179 111. App. 3d 161, 171 ( 5th Dist. 1989).\nSection 2. 02( c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97- 827. effective\n\nJanuary 1, 2013, added section 2. 02( c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\n\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action.\n\nAnd this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what' s going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. ( Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687. at\n47.\n\nThe Public Access Bureau has determined that \" the General Assembly' s use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" 1I]. Att' y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 ( determining that voting to sign a\nnew city administrator to a five year contract under the agenda item \" Appointment of the City\nAdministrator\" did not violate section 2. 02( c) of OMA).\n\nThe term \" final action\" generally does not encompass intermediate steps taken by\na public body. Gosnell, 179 Ill. App. 3d at 176 ( concluding that a board' s decision to authorize a\nrequest\n\nfor mediation\n\nas\n\nan\n\nalternative\n\nto the negotiations\n\nit had been conducting with\n\na union\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril 5, 2019\nPage 4\n\nwas merely a step towards reaching final action on the union's contract, rather than final action\nitself). \"\n\nFinal action\" generally must resolve a distinct matter. Compare III. Att' y Gen. PAC\n\nReq. Rev. Ltr. 32463, issued July 14, 2015, at 3 ( council' s vote directing staff to explore funding\nfor a sporting event and report back with a recommendation only constituted a step in\nfurtherance of reaching action rather than final action itself), with 111. Att' y Gen. PAC Req. Rev.\nLtr. 28933, issued March 6, 2018, at 3 ( board took final action when it voted to extend\n\nsuperintendent' s contract even though financial terms of contract were to be approved at a\nsubsequent meeting).\n\nIn its response to this office, the Board asserted that \"[ a] n agenda item relating to\nthe Certification of Ballots appeared under Item 8A of the agenda\" and that \" Item 9C was an\n\nitem pertaining to a Joint Fire Management Services Concept. i4 With regard to the first item, the\nBoard contended:\n\nUpon discussion of Item 8A, it was proposed that the\n\nCertification of the Ballots include a non- binding public question\n\ndesigned to gauge the public' s interest in pursuing efficiencies and\neconomies through the consolidation of services with an adjoining\n\ngovernmental entity. A motion was then made to place a public\nquestion to that effect on the ballot that was to be certified for the\n\nupcoming April 2019 election, along with the certification of\ncandidates. t51\nThe Board further contended that \"[ t] he Joint Management Services Concept is a matter which\n\nthe Board of Trustees was considering in an effort to consolidate services and the Board wished\nto have a broader base of public opinion with regard to such consolidation efforts.i6\n\nAdditionally, the Board argued that the resolution that it approved did not constitute \" a final\naction of the Board of Trustees to which the unit of government or its constituents would be\n\nLetter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\nGeneral, Public Access Bureau, Office of the Attorney General, State of Illinois ( February\n\nLim, Assistant Attorney\n28, 2019).\n\n5Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\nLim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General, State of Illinois ( February\n\n28, 2019).\n\n6Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\nLim, Assistant Attorney General, Public Access Bureau,\n28, 2019).\n\nOffice of the Attorney General. State of Illinois ( February\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril\n\n5, 2019\n\nPage 5\n\nbound.\"'\nAccording to the Board, \" the election law requires the adoption of a resolution\" to\nplace a public question on the ballot. 8\n\nIn reply to that answer,\n\ndisputed the Board' s claim that Agenda Item 9C\n\nindicated that the Board might place a referendum question on the April 2019 ballot and\nmaintained that the Board took final action when it voted to place the referendum question on the\nballot.\n\nThe relevant portion of the minutes provides:\n\nTrustee Rage questioned Attorney Weiler about the\npossibility of putting a non- binding referendum question on the\nballot regarding the efforts to consolidate fire services with other\narea fire departments/ fire districts. Discussion was conducted\nregarding the matter.\n\nA motion was made by Trustee Kilian to approve\nResolution 2018- 003, A Resolution to Place Public Question on\n\nthe Ballot for the April 2, 2019 Consolidated Election as presented,\n\nwith the following question:\nShall the Rutland - Dundee Townships Fire\nProtection District proceed with efforts to effect the\n\nconsolidation of fire and emergency medical services with\nthe Village of West Dundee, and/ or the Village of West\nDundee and/ or the East Dundee and Countryside\n\nFire\n\nProtection District, and/ or the Village of Carpentersville to\n\nmaximize efficiency and reduce expenses:\" 191\n\nLetter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi &\n\nAndersson, P. C.. to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau, 0 ffice of the Attorney General, State of Illinois ( February\n28, 2019).\n\n8Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi &\nLim, Assistant Attorney General,\n\nAndersson.\n\nP. C., to Teresa\n\nPublic Access Bureau, 0 ffice of the Attorney. General. State of Illinois ( February\n\n28, 2019).\n\n9Rutland- Dundee Fire Protection\n2- 3.\n\nDistrict Board of Trustees,\n\nMeeting. January 14, 2019. Minutes\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril 5, 2019\nPage 6\n\nThe Board then passed the resolution, which provides, in pertinent part:\n\nNOW, THEREFORE, Be It Resolved that the following\npublic question be placed on the ballot for the April 2, 2019\n\nconsolidated election to be voted on by the voters of the Rutland Dundee Townships Fire Protection District:\n\nShall the Rutland - Dundee Townships Fire Protection\nDistrict proceed with efforts to effect the consolidation\n\nof\n\nfire and emergency medical services with the Village of\nWest Dundee, and/ or the Village of West Dundee and/ or\nthe East Dundee and Countryside\n\nFire Protection District.\n\nand/ or the Village of Carpentersville to maximize\nefficiency and reduce expenses.\"\n\nBE IT FUIRITHER RESOLVED, that the Secretary of\nthe Board of Trustees, acting as the local election authority take all\n\nactions necessary to certify the foregoing public question to be\nplaced upon the ballot for the April 2, 2019 Consolidated Election.\nThis Resolution shall be in full force and effect upon its\n\npassage and approval as required by law. 1101\nThe resolution, which was signed and dated January 14, 2019, contains specific\nrecitals and affirmative language signaling the formality of the Board' s action. Although the\nresolution did not resolve the consolidation issue, the vote on the resolution was a distinct final\n\naction that disposed of the matter of officially placing a referendum question before voters of the\nDistrict. The non- binding nature of the public question does not exclude the Board' s vote from\nthe requirements of section 2. 02( c) of OMA. Article 28 of the Election Code ( 10 ILCS 5/ 28- 1 e'\n\nseq. ( West 2016)) provides specific procedures for submitting public questions— both those with\nlegal effect and advisory questions of public policy— to referenda. As the Board noted, those\nprocedures provide for the governing body of a unit of local government to pass a resolution to\nplace a public question on a ballot. See 10 ILCS 5/ 28- 7 ( West 2016). This formal requirement\n\nfor submitting a public question to referendum distinguishes the Board' s vote from an optional,\n\nintermediate step in furtherance of final action that is not necessitated by a statutory provision\nmandating the approval of a resolution.\n\n10Resolution No. FY2018- 003, A Resolution to Place Public Question on the Ballot for the April\n2, 2019 Consolicated [ sic] Election ( January 14, 2019).\n\n\fThe Honorable Don Rage\nMr. Bernard K. Weiler\nApril\n\n5, 2019\n\nPage 7\n\nThe plain language of section 2. 02( c) requires a public body to include the general\nsubject matter of such a resolution on the meeting agenda before taking final action.\nThis office's review confirmed that no items set forth the general subject matter of submitting the\npublic question to referendum. Agenda item 8A, \" Certification of Ballot — Secretary Prusko,\"\nindicated that the Board planned to certify the ballot; it did not suggest that any public questions\n\nmight be placed on that ballot.\" t While agenda item 9C, \" Joint Fire Management Services\nConcept,\" indicated that the Board might discuss the subject of consolidation, it likewise did not\n\nreference any public questions. 12 The agenda did not reflect a connection between items 9C and\n8A in a manner that could have conveyed to members of the public that a public question about\n\nconsolidation would be subject to a vote during the meeting. Therefore. this office concludes\nthat the Board did not provide proper advance notice under section 2. 02( c) of OMA of its vote to\n\nadopt the resolution during its January 14, 2019, meeting. At this time, no corrective action can\nbe taken to remedy this violation. However, this office advises the incoming Board that the\nagendas for its future meetings must identify the general subject matters of all items upon which\nthe Board wishes to take final action.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n56805 o 202c notice improper fd\n\nI ' Rutland - Dundee Fire Protection District Board of Trustees, Agenda Item 8A. Certification of\nBallot — Secretary Prusko ( January 14, 2019).\n\n12Rutland- Dundee Fire Protection District Board of Trustees, Agenda Item 9C. Joint Fire\nManagement Services Concept ( January 14, 2019).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A fire district board's vote on an unagendized referendum","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56805/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nApril 5, 2019\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Don Rage\nPresident, Board of Trustees\nRutland - Dundee Fire Protection District\n11 East Higgins Road\nGilberts, Illinois 60136\n\ndrage@rdfpd. org\nVia electronic mail\nMr. Bernard K. Weiler\n\nAttorney for Rutland -Dundee Fire Protection District\nMickey, Wilson, Weiler, Renzi &\n\nAndersson, P. C.\n\n140 South Municipal Drive\nSugar Grove, Illinois 60554\nbkw@mickeywilson. com\n\nRE:\n\nDear\n\nOMA Request for Review.— 2019 PAC 56805\n\nMr. Rage, and Mr. Weiler:\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS\n\n120/ 3. 5(e) (West 2016)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Board of Trustees (Board) of the Rutland - Dundee Fire Protection\n\nDistrict (District) did not provide proper notice on the agenda for its January 14, 2019, meeting\nof its vote on a resolution to place a referendum question on the ballot for the April 2, 2019,\nelection.\n\nBACKGROUND\n\nOn February 11, 2019,\nsubmitted a Request for Review to the\nPublic Access Bureau alleging that the Board potentially violated OMA during its January 14,\n2019, meeting by voting to place a referendum question on the ballot for the upcoming April 2.\n2019, election without having listed that topic on the meeting's agenda. Specifically, he asserted:\nThe minutes state that the trustee asked the Attorney about the\npossibility of placing a non bi[ n] ding referendum question on the\nballot and the next line of the minutes had a trustee making a\nmotion on a lengthy question that absolutely had to be predetermined.\n\nThis was the last night that a referendum question\n\ncould be submitted to the County and it was filed shortly after.It1\nHe contended that the referendum\nAgenda\n\nitem[.]\"\n\nquestion \" was never disclosed to the Public. never listed as an\n\n2 This office construed\n\nclaim as alleging a violation of section\n\n2. 02(c) of OMA (5 ILCS 120/ 2. 02(c) (West 2016)).\n\nOn February 19, 2019, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its January 14, 2019, meeting agenda\nand minutes, together with a written response to\nOMA allegation. In particular, this\noffice asked the Board to address whether its vote on placing the referendum question on the\n\nballot qualified as final action. On February 21, 2019,\nsent this office an e- mail\nsupplementing his Request for Review by stating that a named member of the audience had\n\nvoiced an objection during the meeting to the lack of advance notice for the referendum question\n\nvote 3 On February 28, 2019, this office received a written response from the Board and meeting\nmaterials for this office's review. On March 5, 2019, this office forwarded a copy of the Board's\n\nresponse to\n\nhe replied that same day. On April 3, 2019,\n\ninformed this office\n\nthat the three challengers for the three Board positions had won the election and that the\n\nE- mail from\n\nto Sarah [ Pratt] (February 1 I, 2019).\n\n2E - mail from\n\nto Sarah [ Pratt] (February 11, 2019).\n\nThis office notes that although\n\nquestioned whether this individual's comment should\n\nhave been included in the meeting minutes, the Public Access Bureau has determined that OMA generally does not\nrequire public comments to be documented in meeting minutes. See 111. Att' y Gen. PAC Req. Rev. Ltr. 36909,\nissued September 2, 2015, at 2 (noting that section 2. 06(a)(3) of OMA (5 ILCS 120/ 2. 06(a)(3) (West 2016)) requires\n\nminutes to include \" a summary of discussion on all matters proposed, deliberated, or decided\" by the public body,\nrather\n\nthan\n\nbrief discussions initiated by a member of the public that do not rise to the level of deliberation).\n\nreferendum question had been rejected by the voters, but that he still sought a determination from\nthis office to provide guidance.\n\nDETERMINATION\n\nIt is the public policy of this State that * * *\n\ninformed as to the conduct\n\nof their\n\nbusiness.\"\n\nthe people have a right to be\n\n5 ILCS 120/ 1 (West 2016). \" The Open Meetings\n\nAct provides that public agencies exist to aid in the conduct of the people's business, and that the\n\nintent of the Act is to assure that agency actions be taken openly and that their deliberations be\nconducted openly.\" Gosnell v. Hogan, 179 111. App. 3d 161, 171 (5th Dist. 1989).\nSection 2. 02(c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97- 827. effective\n\nJanuary 1, 2013, added section 2. 02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\n\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action.\n\nAnd this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what's going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. (Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687. at\n47.\n\nThe Public Access Bureau has determined that \" the General Assembly's use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" 1I]. Att' y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 (determining that voting to sign a\nnew city administrator to a five year contract under the agenda item \" Appointment of the City\nAdministrator\" did not violate section 2. 02(c) of OMA).\n\nThe term \" final action\" generally does not encompass intermediate steps taken by\na public body. Gosnell, 179 Ill. App. 3d at 176 (concluding that a board's decision to authorize a\nrequest\n\nfor mediation\n\nas\n\nan\n\nwas merely a step towards reaching final action on the union's contract, rather than final action\nitself). \"\n\nFinal action\" generally must resolve a distinct matter. Compare III. Att' y Gen. PAC\n\nReq. Rev. Ltr. 32463, issued July 14, 2015, at 3 (council's vote directing staff to explore funding\nfor a sporting event and report back with a recommendation only constituted a step in\nfurtherance of reaching action rather than final action itself), with 111. Att' y Gen. PAC Req. Rev.\nLtr. 28933, issued March 6, 2018, at 3 (board took final action when it voted to extend\n\nsuperintendent's contract even though financial terms of contract were to be approved at a\nsubsequent meeting).\n\nIn its response to this office, the Board asserted that \"[ a] n agenda item relating to\nthe Certification of Ballots appeared under Item 8A of the agenda\" and that \" Item 9C was an\n\nitem pertaining to a Joint Fire Management Services Concept. i4 With regard to the first item, the\nBoard contended:\n\nUpon discussion of Item 8A, it was proposed that the\n\nCertification of the Ballots include a non- binding public question\n\ndesigned to gauge the public's interest in pursuing efficiencies and\neconomies through the consolidation of services with an adjoining\n\ngovernmental entity. A motion was then made to place a public\nquestion to that effect on the ballot that was to be certified for the\n\nupcoming April 2019 election, along with the certification of\ncandidates. t51\nThe Board further contended that \"[ t] he Joint Management Services Concept is a matter which\n\nthe Board of Trustees was considering in an effort to consolidate services and the Board wished\nto have a broader base of public opinion with regard to such consolidation efforts.i6\n\nAdditionally, the Board argued that the resolution that it approved did not constitute \" a final\naction of the Board of Trustees to which the unit of government or its constituents would be\n\nLetter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\nGeneral, Public Access Bureau, Office of the Attorney General, State of Illinois (February\n\nLim, Assistant Attorney\n28, 2019).\n\n5 Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\nLim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General, State of Illinois (February\n\n28, 2019).\n\n6 Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson. P. C., to Teresa\n\nbound.\"'\nAccording to the Board, \" the election law requires the adoption of a resolution\" to\nplace a public question on the ballot. 8\n\nIn reply to that answer,\n\ndisputed the Board's claim that Agenda Item 9C\n\nindicated that the Board might place a referendum question on the April 2019 ballot and\nmaintained that the Board took final action when it voted to place the referendum question on the\nballot.\n\nThe relevant portion of the minutes provides:\n\nTrustee Rage questioned Attorney Weiler about the\npossibility of putting a non- binding referendum question on the\nballot regarding the efforts to consolidate fire services with other\narea fire departments/ fire districts. Discussion was conducted\nregarding the matter.\n\nA motion was made by Trustee Kilian to approve\nResolution 2018- 003, A Resolution to Place Public Question on\n\nthe Ballot for the April 2, 2019 Consolidated Election as presented,\n\nwith the following question:\nShall the Rutland - Dundee Townships Fire\nProtection District proceed with efforts to effect the\n\nconsolidation of fire and emergency medical services with\nthe Village of West Dundee, and/ or the Village of West\nDundee and/ or the East Dundee and Countryside\n\nFire\n\nProtection District, and/ or the Village of Carpentersville to\n\nmaximize efficiency and reduce expenses:\" 191\n\nLetter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi &\n\nAndersson, P. C.. to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau, 0 ffice of the Attorney General, State of Illinois (February\n28, 2019).\n\n8 Letter from Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi &\nLim, Assistant Attorney General,\n\nAndersson.\n\nP. C., to Teresa\n\nPublic Access Bureau, 0 ffice of the Attorney. General. State of Illinois (February\n\n28, 2019).\n\nThe Board then passed the resolution, which provides, in pertinent part:\n\nNOW, THEREFORE, Be It Resolved that the following\npublic question be placed on the ballot for the April 2, 2019\n\nconsolidated election to be voted on by the voters of the Rutland Dundee Townships Fire Protection District:\n\nShall the Rutland - Dundee Townships Fire Protection\nDistrict proceed with efforts to effect the consolidation\n\nof\n\nfire and emergency medical services with the Village of\nWest Dundee, and/ or the Village of West Dundee and/ or\nthe East Dundee and Countryside\n\nFire Protection District.\n\nand/ or the Village of Carpentersville to maximize\nefficiency and reduce expenses.\"\n\nBE IT FUIRITHER RESOLVED, that the Secretary of\nthe Board of Trustees, acting as the local election authority take all\n\nactions necessary to certify the foregoing public question to be\nplaced upon the ballot for the April 2, 2019 Consolidated Election.\nThis Resolution shall be in full force and effect upon its\n\npassage and approval as required by law. 1101\nThe resolution, which was signed and dated January 14, 2019, contains specific\nrecitals and affirmative language signaling the formality of the Board's action. Although the\nresolution did not resolve the consolidation issue, the vote on the resolution was a distinct final\n\naction that disposed of the matter of officially placing a referendum question before voters of the\nDistrict. The non- binding nature of the public question does not exclude the Board's vote from\nthe requirements of section 2. 02(c) of OMA. Article 28 of the Election Code (10 ILCS 5/ 28- 1 e'\n\nseq. (West 2016)) provides specific procedures for submitting public questions— both those with\nlegal effect and advisory questions of public policy— to referenda. As the Board noted, those\nprocedures provide for the governing body of a unit of local government to pass a resolution to\nplace a public question on a ballot. See 10 ILCS 5/ 28- 7 (West 2016). This formal requirement\n\nfor submitting a public question to referendum distinguishes the Board's vote from an optional,\n\nintermediate step in furtherance of final action that is not necessitated by a statutory provision\nmandating the approval of a resolution.\n\n10 Resolution No. FY2018- 003, A Resolution to Place Public Question on the Ballot for the April\n\nThe plain language of section 2. 02(c) requires a public body to include the general\nsubject matter of such a resolution on the meeting agenda before taking final action.\nThis office's review confirmed that no items set forth the general subject matter of submitting the\npublic question to referendum. Agenda item 8A, \" Certification of Ballot — Secretary Prusko,\"\nindicated that the Board planned to certify the ballot; it did not suggest that any public questions\n\nmight be placed on that ballot.\" t While agenda item 9C, \" Joint Fire Management Services\nConcept,\" indicated that the Board might discuss the subject of consolidation, it likewise did not\n\nreference any public questions. 12 The agenda did not reflect a connection between items 9C and\n8A in a manner that could have conveyed to members of the public that a public question about\n\nconsolidation would be subject to a vote during the meeting. Therefore. this office concludes\nthat the Board did not provide proper advance notice under section 2. 02(c) of OMA of its vote to\n\nadopt the resolution during its January 14, 2019, meeting. At this time, no corrective action can\nbe taken to remedy this violation. However, this office advises the incoming Board that the\nagendas for its future meetings must identify the general subject matters of all items upon which\nthe Board wishes to take final action.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n56805 o 202c notice improper fd\n\nI ' Rutland - Dundee Fire Protection District Board of Trustees, Agenda Item 8A. Certification of\nBallot — Secretary Prusko (January 14, 2019).\n\n12 Rutland- Dundee Fire Protection District Board of Trustees, Agenda Item 9C. Joint Fire\nManagement Services Concept (January 14, 2019)."}
{"id":1293,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-03-10","case_number":null,"request_numbers":["56926"],"title":"City of Waukegan City Council violated OMA by restricting public comment time","filename":"56926, issued March 10, 2020.pdf","rel_path":null,"word_count":3886,"summary":"The requester alleged that the Waukegan City Council improperly restricted his public comment time during two meetings; the PAC found a violation regarding the February 4 meeting but no violation regarding the February 19 meeting.","plain_summary":"A citizen complained that the Waukegan City Council cut him off during public comment periods at two different meetings. The Attorney General's office reviewed the evidence and found that the Council did not follow proper procedures during the first meeting, but acted appropriately during the second. This means the Council failed to uphold the public's right to speak as defined by the Open Meetings Act in the first instance.","holding":"The City of Waukegan City Council violated the Open Meetings Act by failing to allow the requester to complete his allotted time for public comment during the February 4, 2019, meeting.","legal_question":"Whether the City of Waukegan City Council violated the Open Meetings Act by improperly restricting a member of the public's allotted time for public comment.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Waukegan City Council","requesting_party":"Mr. Douglas S. Dorando (on behalf of a client)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The requester alleged that the City Council inconsistently enforced rules and prevented him from using his full allotted time for public comment during city council meetings.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Reasonable-rules/56926, issued March 10, 2020.pdf","sha256":"095049c06fe39315a1781bc62a2c21cc04d3c682171ba034a81a2914caa29fd6","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","city council","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 10, 2020\n\nVia elect) onic mail\n\nVia electronic mail\n\nMr. Douglas S. Dorando\nDaniels,\n\nT ong, & Pinsel, LLC\n\nThe Daniels Law Building\n[street address redacted for site publication -- see original PDF]\nddorando@dlplawyers.\n\n1\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review —2019 PAC 56926\n\nand Mr. Dorando:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Waukegan City Council ( Council) violated OMA in\n\nconnection with its February 4, 2019, meeting, but did not violate OMA in connection with its\n\nFebruary 119, 2019, meeting.\nBACKGROUND\n1\n\nIn his February 20, 2019, Request for Review,\n\n1\n\nalleged that\n\nduring its February 4, 2019, and February 19, 2019, meetings, the Council improperly\ninterrupted his public comments and prevented him from using all of his allotted time to address\nthe Council.\n\nalso alleged generally that the Council enforces its rules\n\ninconsistntly. On February 27, 2019, this office sent a copy of the Request for Review to the\nCouncil and requested that it provide a written response to\n\nspecific allegations\n\nconcerning the February meetings only. This office also asked the Council for a copy of its\nestablished and recorded rules regarding public comment. On March 4, 2019, the Council\n\n500 South Second\n\nStreet,\n\nSpringfield, Illinois 62701 • ( 217) 782- 1090 •\n\n100 West Randolph Street, Chicago,\n601\n\nSouth\n\nUniversity\n\nAve., Carbondale,\n\nIllinois\n\n60601 • (\n\nTTY: ( 877)\n\n844- 5461 •\n\nFax: ( 217)\n\n782- 7046\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois 62901 • (\n\n618)\n\n529- 6400 •\n\nTTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMr. Douglas\n\nS. Dorando\n\nMarch 10, 2020\nPage 2\n\nprovided la written answer and the requested materials. On March 5, 2019, this office forwarded\na copy of the Council' s answer to\nhe did not submit a reply.\nDETERMINATION\n\nThe intent of OMA is to \" ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly\" and to ensure that individuals are \" given\nadvance notice of and the right to attend all meetings at which any business of a public body is\ndiscussed\nIll.\n\nor acted\n\nApp. 3d 161,\n\nupon\n\nin any way.\"\n\n5 ILCS\n\n120/ 1 ( West 2018); see also Gosnell v. Hogan,\n\n179\n\n1989) (\" the intent of the Act is to assure that agency actions be\n\n171 ( 5th Dist.\n\ntaken openly and that their deliberations be conducted openly.\").\nSection 2. 06( g)\n\nof\n\nOMA provides\n\nthat \"[\n\na] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" 5 ILCS 120/ 2. 06( g) ( West 2018)). This offices notes that no Illinois reviewing court has\ninterpreted this provision.\nUnder the plain language of section 2. 06( g), however, a public body\nmust establish \"and record rules and may restrict public comment only pursuant to those rules.\nSee Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009, issued September 2, 2014 at 7. Although OMA\ndoes not specifically address the nature of rules that a public body may permissibly adopt, a\nboard may adopt rules to maintain order and decorum at public meetings to ensure that meetings\n\nare conducted efficiently. See Timmon v. Wood, 633 F. Supp. 2d 453, 465 ( W.D. Mich. 2008);\n\nsee also Ill. Att'y Gen. Pub. Acc. Op. No. 14- 0012, at 5 ( a public body may promulgate\nreasonable \"\n\ntime, place\n\nand\n\nmanner\"\n\nrules\n\naimed\n\nat\n\npreserving order\n\nand\n\ndecorum).\n\nHowever,\n\nsuch rules must tend to accommodate, rather than to unreasonably restrict, the right to address\n\npublic officials. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, at 92325 ( N. D. Ill. 2009)..\n\nAlthough a public body may enforce rules regarding decorum, content based restrictions must be narrowly construed. See I.A. Rana Enterprises, Inc. v. City of Aurora,\n630 F. Supp. 2d 912, 922- 23 ( N. D. I11. 2009) (\" Any' content- based restrictions, promulgated with\nreference to the content of the speech being restricted, are subject to strict -scrutiny, and must\nserve\n\na\n\ncompelling state interest\n\nand\n\nbe narrowly drawn\n\nthat purpose.\").\n\nto achieve\n\nFurther, rules\n\nthat govern the decorum of a meeting are permitted only if it is directed to conduct which is\nactuallydisturbing or impeding a meeting.\" Acosta v. City of Costa Mesa, 718 F. 3d 800, 811\n9th Cir. 2013)( ordinance unconstitutional because it provided for the. removal of individuals for\nproscribed\n\ntypes\n\nof remarks\n\neven\n\nif those remarks did not disrupt\n\na\n\nmeeting).\n\nDisagreeing with\n\nthe content of a speaker' s speech is not evidence that the speaker created a disturbance or\n\notherwise interfered with the efficiency of the proceedings. See Ill. Att'y Gen. PAC Req. Rev.\nLtr. 3923;9, issued June 29, 2016, at 4- 5.\nThe Council' s rules for public comment are established and recorded as Section 265. 1 of the Waukegan Code\n\nof\n\nCity Ordinances:\n\n\fMr. Douglas\n\nS. Dorando\n\nMarch 10, 2020\nPage 3\n\nThe presiding officer shall conduct city council meetings in\nan orderly manner. No person in the audience shall engage in\n\ndisorderly conduct, including any act that disturbs, disrupts, or\notherwise impedes the orderly conduct of any council meeting or\nthe presentation of any speaker.\n\nDuring the public comment portion of the city\ncouncil meetings, if any, all public comments are limited to three\nminutes per individual. Individuals are directed to be brief and\n\nconcise in making their remarks and to address topics directly\nrelevant to business of the city council.\nThe presiding officer, after one warning, may rule\nany individual addressing the city council out of order if the\nindividual:\n1) Becomes repetitive;\n\n2) Exceeds the three- minute limitation;\n3) Makes personal attacks against others;\n4) Makes rude or slanderous\n\nremarks;\n\n5) Becomes threatening or boisterous;\n6) Engages in electioneering for candidate( s);\n\nor\n\n7) Otherwise interferes with the orderly and\ndignified conduct of the meeting.\nIf ruled out of order and is found by the chair to be\nout of order, the individual may be barred from further remarks at\nthat city council meeting and barred from further attendance at that\n\nmeeting. This ruling of the chair can be overridden by a two- thirds\nvote\n\nof the aldermen\n\npresent.\n\nNothing herein is intended to limit or restrain\nnegative, positive or neutral comments about the manner in which\n\nan individual employee, officer, official or council member carries\nout his or her duties in public office or public employment of the\nI1\n\ncity. [\n\nCode of Ordinances of Waukegan, Illinois, Section 2- 65. 1, available at\n\nhttps:// library.municode. com/ il/ waukegan/ codes/ code of ordinances? nodeld= COOR CH2AD ARTIICICO DIV2\nRUORPR '\n\nS2- 65. 1 RUDECOME.\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 4\n\nFebruary 4, 2019, Council Meeting\nThis office has reviewed the video recording of the portion of the February 4,\n2019, meeting during which\n\naddressed\n\nthe\n\nCouncil.\n\nIn the context of discussing his\n\ndissatisfaction with the Council' s relationships with certain local businesses,\n\nstated:\n\nWhat really bothers me, for the last year and a half I' ve brought\n\nevidence here showing you that you have two racist companies that\nyou took on board. One was fired by the previous administration\nfor overcharging blacks. The other one was fired for calling us [ a\nracial\n\nThe speaker\n\nclock\n\nslur.] [\n\nwas\n\nGavel.]\n\nstopped\n\nand\n\nAnd you held on. i21\nMayor\n\nCunningham\n\nplease do not use\n\nstated, \"\n\nthe word. Please, sir, I'm asking you as I asked\n\nand he so kindly obliged me.\n\nPlease, spell it out, do not use that. Please sir, thank you, sir. i3 The clock resumed and\n\ncontinued to discuss the topic of the Council' s business relationships. Towards the end\nof\ncomments, he again stated \" it's a shame you' re holding [ on to] those companies\nfor overcharging the black community and calling us [ a racial slur.] i4\nIn its response to this office, the Council did not identify which rule Mayor\nCunningham was enforcing when he interrupted\nfor using a racial slur. This office\n\nconstrues Mayor Cunningham's interruption as enforcing the Council' s rule prohibiting\ninterference\n\nwith\n\nthe \"\n\norderly and dignified\n\nconduct\n\nof the\n\nmeeting. i5 The Public Access Bureau\n\nhas previously held that a public body may adopt rules governing public comment that\naccommodate the speaker' s statutory right to address the public body, while ensuring that the\npublic body can maintain\norder and decorum at public\nmeetings.\"\nIll. Att' y Gen. Pub. Acc. Op.\nNo. 14- 012, issued September\n\n30, 2014, at 6.\n\n2Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 43: 29, available at\nhttps:// www. youtube. com/ watch? v= wmsCf- EZHzs.\n\nWaukegan City Council, Meeting, February 4, 2019, video recording,\n\n1: 43: 55, available at\n\nhttps:// wwW. youtube. com/ watch? v= wmsCf-EZHzs.\n\n4Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 46: 48, available at\nhttps:// www. youtube. com/ watch? v= wmsCf-EZHzs.\nCode of Ordinances of Waukegan, Illinois, Section 2- 65. 1, available at\n\nhttps:// library.municode. com/ il/ waukegan/ codes/ code_ of ordinances? nodeld= COOR_ CH2AD_ ARTIICICO_ DI V2\nRUORPR\n\nS2- 65. 1 RUDECOME.\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 5\n\ncontends that he used the racial slur in the context of quoting\nlanguage used by a local tow company to demonstrate the company' s racism. Unlike a speaker\nwho attempts to upset the decorum of a meeting by using obscene language, the alleged source\nof the racial slur that\nrecited was a company with which the City does business.\nThe use of the term was therefore relevant to the Council' s business and the comment did not\n\nappear to; disrupt the order of the meeting. The mayor however, did not act unreasonably nor\noutside the scope of the established rules when he asked\n\nIn fact,\n\nto please not use that term.\n\nused the same term again later during the course of his remarks without\n\ninterruption. Further, the clock was stopped when the mayor interrupted\n\nThis\n\noffice has previously determined that a brief interruption that does not preclude a speaker from\ncompleting his or her public comment does not constitute an improper restriction on public\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr. 37496, issued December 11, 2015.\n\ncomment;\n\nBecause\n\nthe mayor' s interruption was a brief request to refrain from repeating a racial slur, and because\nthe clock iwas stopped during the interruption and\nwas permitted to continue with\nhis remarks, this office concludes that under these circumstances, the Council did not violate\nsection 2.'06( g) of OMA.\n\nfurther contends that the Council improperly interrupted him when\nhe suggested during public comment that one of the aldermen undergo a mental evaluation. The\n\nrecording of the February 4, 2019, meeting shows that\n\nstated \" I'm also going to\n\nrecommend that you have some kind of mental evaluation, Alderman Seger, because your reply\nto me—\";\n\nbefore Mayor Cunningham struck his gavel and interrupted. The mayor informed\nthat\n\nhe could not use personal attacks against the aldermen or members of the audience.\nresumed his comments, stating \" I' m going to say what I said, I'm going to\n\nrecommend you have mental evaluation [ gavel] in order for you to tell me that the two\n\ncompanies, did you the same way. What can you do about it? And you' re elected officials and as I\n\nstated, it's a shame before God that you are holding those two racist companies. i6\nIn its response to this office, the Council asserted that Mayor Cunningham\n\ninterrupted\n\nto enforce the Council' s rules prohibiting rude or slanderous remarks\n\nand personal attacks. This office has previously addressed the propriety of the Council' s rules\nprohibiting personal attacks and slanderous remarks:\n\nOn its face, this ordinance is susceptible to overbroad and arbitrary\napplication to public statements that do not disrupt the Council' s\nproceedings.\n\nFor instance, whether a remark constitutes\n\na\n\npersonal attack\" is an entirely subjective question that is\n\n6Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 45: 14, available at\nhttps:// www.youtube. com/ watch? v= wmsCf- EZHzs.\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 6\n\nnecessarily dependent upon the listener' s personal perspective.\nWhen criticism involves the conduct of present or former public\nofficials in the performance of their public duties, significant\nlatitude must be allowed. Further, whether a comment is\n\ndefamatory requires a legal judgement that a tort has been\ncommitted, including a finding that the alleged offending statement\nis false.\n\nSee Hadley v. Doe, 2015 IL 118000, ¶ 30, 34 N. E. 3d 549,\n\n557 ( 2015) ( stating\n\nelements of a cause of action for defamation).\n\nThe Council' s rules are devoid of any criteria for determining when\na comment is improper, thus vesting the presiding officer with\nunbridled discretion to limit or prohibit legitimate public criticism\n\nby ruling it \" out of order.\" Accordingly, we conclude that sections\n2- 65. 1( 3) and ( 4) of the Waukegan City Code exceed the\npermissible scope of rules regulating the statutory right to address\n\npublic officials under section 2. 06( g) of OMA. Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 39069, issued April 5, 2016, at 3 ( restricting\ncomment criticizing a public official by name impermissible).\nHere,\ncomments regarding Alderman Seger were intended to\nconvey his strong disagreement with the alderman' s position regarding the City' s use of the two\ntow companies. It does not appear that\n\ncomments alone created a disturbance or\n\notherwise interfered with the efficiency of the Council' s proceedings.\n\nA member of the audience.\n\nchose to clap loudly in agreement with\nbut the Council did not instruct that\nindividual to refrain from disturbing the order of the meeting. The Council' s restrictions of\ncomments were directed towards his references to a particular Council member in\n\nconnection with the public business of the City. Accordingly, the Council' s rules as enforced\n\nagainst\n\nimpermissibly restricted his statutory right to address the Council. See Ill.\n\nAtt' y Geri. PAC Req. Rev. Ltr. 51665, issued February 5, 2019, at 6 ( restricting comment\ncriticizing individual board members); Ill. Att' y Gen. PAC Req. Rev. Ltr. 50824, issued July 10,\n2018, at 4- 6 ( restricting comment criticizing elected officials by name in connection with public\nmatters impermissible).\n\nIn its response to this office, the Council asserted that even though it enforced its\n\nrules during\ncomments, he nevertheless spoke for the full three minutes permitted\nunder the Council' s rules. This office' s review of the recording confirmed that, excluding Mayor\nCunningham' s interruptions,\nspoke for approximately two minutes and fifty- seven\nseconds before leaving the podium, but he was also asked to leave the Council chambers. Even\nthough Mayor Cunningham did not completely prohibit\n\ninterruptions unreasonably interfered with\nAccordingly, this office concludes\n\nthat\n\nthe\n\ncomments, the repeated\n\nstatutory right to address the Council.\nCouncil violated\n\nsection\n\n2. 06( g) of OMA\n\nby\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 7\n\nenforcing' an unreasonable rule to infringe on\nFebruary ' 4, 2019, meeting.\n\nright to address the Council at its\n\nFebruary 19, 2019, Council Meeting\nfurther alleges that during the February 19, 2019, Council meeting,\nthe mayor struck his gavel and told him that he could not stand to the side of the podium, but\n\nmust fac the mayor when delivering his public comments.\n\nalso contended that\n\nMayor Cunningham violated OMA by having him removed for alleged electioneering, during the\npublic\n\ncomment\n\nperiod.\n\nThis office has reviewed the recording of the February 19, 2019, Council meeting\nthat is available on YouTube.\n\napproached the podium from the side and turned his\n\nbody away from the Council, towards the audience. He stated that he was \" speaking to the\n\ncitizens.\" 7 Mayor Cunningham repeatedly struck his gavel, asked\nCouncil, and informed\n\nto face the\n\nthat he was out of order. After 39 seconds, however, Mayor\n\nCunningham stopped interrupting and permitted\n\nto proceed with his remarks.\n\nSection 2. 06( g) of OMA provides any person \" an opportunity to address public\nadded.).\nBoth\nactions in turning away from the Council\nmembers, and his declaration that he was speaking to the citizens make it clear that he was there\nofficials\" (\n\nemphasis\n\nto address the public present at the meeting, rather than the public officials. Therefore, the\nCouncil' s interruption to advise\n\nto address the Council did not violate section\n\n2. 06( g) of OMA.\ncontinued with his remarks, stating, in relevant part:\nWhat needs to happen here is, there needs to be a switching out of\nquite a few of these aldermen. And I tell you the truth when I tell\n\nyou that the casino is priority way more than your health, and that' s\nno\n\ngood.\n\nIt's important that you citizens know that you're the boss, they' re\nnot your boss, you' re their boss. And I ask you to remember, when\nit was time to raise taxes, remember\n\nthose aldermen\n\nwho raised\n\nWaukegan City Council, Meeting, February 19, 2019, video recording, 1: 08: 32, available at\nhttps://\n\nwww.youtube. com/ watch? v= 6vMNaCjzC_\n\ns.\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 8\n\ntaxes. Switch them out. It' s time for change, people. A lot of this\n\nwe bring on ourself. I think of Alderman Moisio is up this trip. Get\nrid of him.\nrecord\n\nwill be transparent. She will tell the truth. Her\n\nshows.\n\nGet him out of there. [\n\nGavel.] I81\n\nMayor Cunningham then struck his gavel and ordered\n\nCouncil chambers for electioneering.\nCunningham'\n\ns\n\nobjections,\n\nto be removed from the\n\ncontinued to speak over Mayor\n\nstating, \"[ a] nd as for [ Alderman] Seger, * * *\n\nI view Segar as\n\nincompetent, lost in space, and I have no idea why you would not get rid of him. i9\nIn its response to this office, the Council asserted that it had\nremoved\n\nfrom the Council\n\nelectioneering\n\nfor candidate(\n\nreferenced was\n\nchambers\ns).\"\n\n1°\n\nbecause he violated\n\nits rule prohibiting \"[ e] ngag[ ing] in\n\nThe Council explained that the \"\n\nwho was running against Alderman Moisio in the February\n\n26, 2019,; primary election for Waukegan' s 3rd Ward alderman. The response also emphasized.\nthat\n\ncomment were directed to the audience rather than the Council.\n\nAlthough this office has not previously addressed the reasonableness of a rule\nprohibiting electioneering during public comment, this office has determined that it is reasonable\n\nfor a public body to limit public comment to topics germane to matters that a public body has the\nauthority to consider. Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6.\n\nSimilarly, courts have consistently recognized an important governmental interest in limiting\ncomments to matters directly relevant to that public body' s business. See, e. g., Scroggins v. City\nof Topeka, Kan., 2 F. Supp. 2d 1362, 1373 ( D. Kan. 1998) (\n\ncity council did not violate first\n\namendment to the United States Constitution by restricting personal comments about an\nappointee' to a mayoral commission that were not directly relevant to the business of the public\nbody). Requiring a public body to permit public comment on matters unrelated to its public\n\nbusiness would impede the public body' s ability to run efficient meetings. See Rowe v. City of\nCocoa, Fla., 358 F. 3d 800, 803 ( 1 lth Cir. 2004) (\"\n\na city council meeting is not open for endless\n\npublic commentary speech but instead is simply a limited platform to discuss the topic at hand.\").\n\n8Waukegan City Council, Meeting, February 19, 2019, video recording, 1: 09: 46, available at\nhttps:// www. youtube. com/ watch? v= 6vMNaCizC\n\ns.\n\nWaukegan City Council, Meeting, February 19, 2019,. video recording, 1: 10: 50, available at\nhttps:// wwW. youtube. com/ watch? v= 6vMNaCizC\n\ns.\n\n10Code of Ordinances of Waukegan, Illinois, Section 2- 65. 1( 6), available at\n\nhttps:// library. municode. com/ il/ waukegan/ codes/ code_ of ordinances? nodeId= COOR_ CH2AD_ ARTIICICO_ DIV2\nRUORPR\n\nS2- 65. 1 RUDECOME.\n\n\fMr. Douglas\n\nS. Dorando\n\nMarch 10, 2020\nPage 9\n\nMerriam - Webster' s Dictionary defines \" electioneer\" as \" to take an active part in\n\n1\nan election\n\nspecifically:\n\nto work\n\nfor the\n\nelection\n\nof a candidate\n\nor\n\nparty[.] i11 ( Emphasis in\n\nElectioneering is not part of the Council' s authority, and therefore comments\npromoting specific aldermanic candidates are not germane to the Council' s business. Although\noriginal.)\n\ninitial comments could be construed as general criticism of the Council, he then\n\nurged the, public specifically to vote for Alderman Moisio' s competitor in an upcoming primary\nelection\nbey stating: \" I think of Alderman Moisio is up this trip. Get rid of him.\nwill be\ntransparent. She will tell the truth. Her record shows. Get him out of there. i12 Because the\npromotion\n\nof the candidate\n\nwas not relevant to the work of the Council, this office concludes\n\nthat\n\nthe Council did not violate the requirements of OMA by enforcing its rule prohibiting\nelectioneering to limit\n\npublic comments.\nOther Allegations\n\nexample\n\nalleged that the Council enforces its rules inconsistently. The only\n\nthat\n\nprovided to support this allegation\n\nwas that at an unidentified\n\nCouncil\n\nmeeting, the mayor warned a woman to not use a certain expletive, but that \" an elder\" 13 used the\nsame expletive on November\nspeaker.\n\nSection\n\n19, 2018, and the mayor did not warn or otherwise\n\n3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2018))\n\nprovides\n\nthat \"[\n\ncaution that\na]\n\nperson\n\nwho\n\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith\n\nthe\n\nPublic Access Counselor[,]\" and that the submission \" must include a summary of the\n\nfacts supporting\n\nthe\n\nman referenced\n\nin\n\nallegation regarding the mayor' s warning to the\nwoman is, vague, as he did not identify a particular meeting during which the warning took place.\nThis office has viewed the recording of the November 19, 2018, meeting, and observed that the\nallegation.\"\n\nRequest for Review used the expletive after his time for\n\ncomment; had ended, but this office is unaware of any pertinent details regarding the woman' s\nstatements. Accordingly,\nsupport\n\na' violation\n\nwith\n\ndid not provide a summary of the facts sufficient to\nrespect\n\nto \" Incident 4,\" and this office will take no further action as to\n\nthis allegation.\n\n11https:// www. merriam- webster. com/ dictionary/ electioneer\n12Waukegan City Council, Meeting, February 19, 2019, video recording, 1: 09: 46, available at\nhttps:// www. youtube. com/ watch? v= 6vMNaCjzC\nE- mail from\n\ns.\n\nto\n\nAttorney\n\nGeneral [ Kwame]\n\nRa[ o] ul ( February\n\n20, 2019).\n\n\fMr. Douglas S. Dorando\nMarch 10, 2020\nPage 10\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter, LHarter@atg.state.il.us, or (217) 524- 7958.\nThis letter serves to close this file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n56926\n\no\n\n206g proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's restriction of public comment time","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56926/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 10, 2020\n\nVia elect) onic mail\n\nVia electronic mail\n\nMr. Douglas S. Dorando\nDaniels,\n\nT ong, & Pinsel, LLC\n\nThe Daniels Law Building\n[street address redacted for site publication -- see original PDF]\nddorando@dlplawyers.\n\n1\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review —2019 PAC 56926\n\nand Mr. Dorando:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Waukegan City Council (Council) violated OMA in\n\nconnection with its February 4, 2019, meeting, but did not violate OMA in connection with its\n\nFebruary 119, 2019, meeting.\nBACKGROUND\n1\n\nIn his February 20, 2019, Request for Review,\n\n1\n\nalleged that\n\nduring its February 4, 2019, and February 19, 2019, meetings, the Council improperly\ninterrupted his public comments and prevented him from using all of his allotted time to address\nthe Council.\n\nalso alleged generally that the Council enforces its rules\n\ninconsistntly. On February 27, 2019, this office sent a copy of the Request for Review to the\nCouncil and requested that it provide a written response to\n\nspecific allegations\n\nconcerning the February meetings only. This office also asked the Council for a copy of its\nestablished and recorded rules regarding public comment. On March 4, 2019, the Council\n\n500 South Second\n\nStreet,\n\nSpringfield, Illinois 62701 • (217) 782- 1090 •\n\n100 West Randolph Street, Chicago,\n601\n\nSouth\n\nUniversity\n\nAve., Carbondale,\n\nIllinois\n\n60601 • (TTY: (877)\n\n844- 5461 •\n\nFax: (217)\n\n782- 7046\n\n312) 814- 3000 • TTY: (800) 964- 3013 • Fax: (312) 814- 3806\n\nIllinois 62901 • (618)\n\nprovided la written answer and the requested materials. On March 5, 2019, this office forwarded\na copy of the Council's answer to\nhe did not submit a reply.\nDETERMINATION\n\nThe intent of OMA is to \" ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly\" and to ensure that individuals are \" given\nadvance notice of and the right to attend all meetings at which any business of a public body is\ndiscussed\nIll.\n\nor acted\n\nApp. 3d 161,\n\nupon\n\nin any way.\"\n\n5 ILCS\n\n120/ 1 (West 2018); see also Gosnell v. Hogan,\n\n179\n\n1989) (\" the intent of the Act is to assure that agency actions be\n\n171 (5th Dist.\n\ntaken openly and that their deliberations be conducted openly.\").\nSection 2. 06(g)\n\nof\n\nOMA provides\n\nthat \"[\n\na] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" 5 ILCS 120/ 2. 06(g) (West 2018)). This offices notes that no Illinois reviewing court has\ninterpreted this provision.\nUnder the plain language of section 2. 06(g), however, a public body\nmust establish \"and record rules and may restrict public comment only pursuant to those rules.\nSee Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009, issued September 2, 2014 at 7. Although OMA\ndoes not specifically address the nature of rules that a public body may permissibly adopt, a\nboard may adopt rules to maintain order and decorum at public meetings to ensure that meetings\n\nare conducted efficiently. See Timmon v. Wood, 633 F. Supp. 2d 453, 465 (W.D. Mich. 2008);\n\nsee also Ill. Att'y Gen. Pub. Acc. Op. No. 14- 0012, at 5 (a public body may promulgate\nreasonable \"\n\ntime, place\n\nand\n\nmanner\"\n\nrules\n\naimed\n\nat\n\npreserving order\n\nand\n\ndecorum).\n\nHowever,\n\nsuch rules must tend to accommodate, rather than to unreasonably restrict, the right to address\n\npublic officials. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, at 92325 (N. D. Ill. 2009)..\n\nAlthough a public body may enforce rules regarding decorum, content based restrictions must be narrowly construed. See I.A. Rana Enterprises, Inc. v. City of Aurora,\n630 F. Supp. 2d 912, 922- 23 (N. D. I11. 2009) (\" Any' content- based restrictions, promulgated with\nreference to the content of the speech being restricted, are subject to strict -scrutiny, and must\nserve\n\na\n\ncompelling state interest\n\nand\n\nbe narrowly drawn\n\nthat purpose.\").\n\nto achieve\n\nFurther, rules\n\nthat govern the decorum of a meeting are permitted only if it is directed to conduct which is\nactuallydisturbing or impeding a meeting.\" Acosta v. City of Costa Mesa, 718 F. 3d 800, 811\n9th Cir. 2013)(ordinance unconstitutional because it provided for the. removal of individuals for\nproscribed\n\ntypes\n\nof remarks\n\neven\n\nif those remarks did not disrupt\n\na\n\nmeeting).\n\nDisagreeing with\n\nthe content of a speaker's speech is not evidence that the speaker created a disturbance or\n\notherwise interfered with the efficiency of the proceedings. See Ill. Att'y Gen. PAC Req. Rev.\nLtr. 3923;9, issued June 29, 2016, at 4- 5.\nThe Council's rules for public comment are established and recorded as Section 265. 1 of the Waukegan Code\n\nThe presiding officer shall conduct city council meetings in\nan orderly manner. No person in the audience shall engage in\n\ndisorderly conduct, including any act that disturbs, disrupts, or\notherwise impedes the orderly conduct of any council meeting or\nthe presentation of any speaker.\n\nDuring the public comment portion of the city\ncouncil meetings, if any, all public comments are limited to three\nminutes per individual. Individuals are directed to be brief and\n\nconcise in making their remarks and to address topics directly\nrelevant to business of the city council.\nThe presiding officer, after one warning, may rule\nany individual addressing the city council out of order if the\nindividual:\n1) Becomes repetitive;\n\n2) Exceeds the three- minute limitation;\n3) Makes personal attacks against others;\n4) Makes rude or slanderous\n\nremarks;\n\n5) Becomes threatening or boisterous;\n6) Engages in electioneering for candidate(s);\n\nor\n\n7) Otherwise interferes with the orderly and\ndignified conduct of the meeting.\nIf ruled out of order and is found by the chair to be\nout of order, the individual may be barred from further remarks at\nthat city council meeting and barred from further attendance at that\n\nmeeting. This ruling of the chair can be overridden by a two- thirds\nvote\n\nof the aldermen\n\npresent.\n\nNothing herein is intended to limit or restrain\nnegative, positive or neutral comments about the manner in which\n\nan individual employee, officer, official or council member carries\nout his or her duties in public office or public employment of the\nI1\n\ncity. [\n\nCode of Ordinances of Waukegan, Illinois, Section 2- 65. 1, available at\n\nhttps:// library.municode. com/ il/ waukegan/ codes/ code of ordinances? nodeld= COOR CH2AD ARTIICICO DIV2\n\nFebruary 4, 2019, Council Meeting\nThis office has reviewed the video recording of the portion of the February 4,\n2019, meeting during which\n\naddressed\n\nthe\n\nCouncil.\n\nIn the context of discussing his\n\ndissatisfaction with the Council's relationships with certain local businesses,\n\nstated:\n\nWhat really bothers me, for the last year and a half I' ve brought\n\nevidence here showing you that you have two racist companies that\nyou took on board. One was fired by the previous administration\nfor overcharging blacks. The other one was fired for calling us [ a\nracial\n\nThe speaker\n\nclock\n\nslur.] [\n\nwas\n\nGavel.]\n\nstopped\n\nand\n\nAnd you held on. i21\nMayor\n\nCunningham\n\nplease do not use\n\nstated, \"\n\nthe word. Please, sir, I'm asking you as I asked\n\nand he so kindly obliged me.\n\nPlease, spell it out, do not use that. Please sir, thank you, sir. i3 The clock resumed and\n\ncontinued to discuss the topic of the Council's business relationships. Towards the end\nof\ncomments, he again stated \" it's a shame you' re holding [ on to] those companies\nfor overcharging the black community and calling us [ a racial slur.] i4\nIn its response to this office, the Council did not identify which rule Mayor\nCunningham was enforcing when he interrupted\nfor using a racial slur. This office\n\nconstrues Mayor Cunningham's interruption as enforcing the Council's rule prohibiting\ninterference\n\nwith\n\nthe \"\n\norderly and dignified\n\nconduct\n\nof the\n\nmeeting. i5 The Public Access Bureau\n\nhas previously held that a public body may adopt rules governing public comment that\naccommodate the speaker's statutory right to address the public body, while ensuring that the\npublic body can maintain\norder and decorum at public\nmeetings.\"\nIll. Att' y Gen. Pub. Acc. Op.\nNo. 14- 012, issued September\n\n30, 2014, at 6.\n\n2 Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 43: 29, available at\nhttps:// www. youtube. com/ watch? v= wmsCf- EZHzs.\n\nWaukegan City Council, Meeting, February 4, 2019, video recording,\n\n1: 43: 55, available at\n\nhttps:// wwW. youtube. com/ watch? v= wmsCf-EZHzs.\n\n4 Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 46: 48, available at\nhttps:// www. youtube. com/ watch? v= wmsCf-EZHzs.\nCode of Ordinances of Waukegan, Illinois, Section 2- 65. 1, available at\n\nhttps:// library.municode. com/ il/ waukegan/ codes/ code_ of ordinances? nodeld= COOR_ CH2AD_ ARTIICICO_ DI V2\n\ncontends that he used the racial slur in the context of quoting\nlanguage used by a local tow company to demonstrate the company's racism. Unlike a speaker\nwho attempts to upset the decorum of a meeting by using obscene language, the alleged source\nof the racial slur that\nrecited was a company with which the City does business.\nThe use of the term was therefore relevant to the Council's business and the comment did not\n\nappear to; disrupt the order of the meeting. The mayor however, did not act unreasonably nor\noutside the scope of the established rules when he asked\n\nIn fact,\n\nto please not use that term.\n\nused the same term again later during the course of his remarks without\n\ninterruption. Further, the clock was stopped when the mayor interrupted\n\nThis\n\noffice has previously determined that a brief interruption that does not preclude a speaker from\ncompleting his or her public comment does not constitute an improper restriction on public\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr. 37496, issued December 11, 2015.\n\ncomment;\n\nBecause\n\nthe mayor's interruption was a brief request to refrain from repeating a racial slur, and because\nthe clock iwas stopped during the interruption and\nwas permitted to continue with\nhis remarks, this office concludes that under these circumstances, the Council did not violate\nsection 2.'06(g) of OMA.\n\nfurther contends that the Council improperly interrupted him when\nhe suggested during public comment that one of the aldermen undergo a mental evaluation. The\n\nrecording of the February 4, 2019, meeting shows that\n\nstated \" I'm also going to\n\nrecommend that you have some kind of mental evaluation, Alderman Seger, because your reply\nto me—\";\n\nbefore Mayor Cunningham struck his gavel and interrupted. The mayor informed\nthat\n\nhe could not use personal attacks against the aldermen or members of the audience.\nresumed his comments, stating \" I' m going to say what I said, I'm going to\n\nrecommend you have mental evaluation [ gavel] in order for you to tell me that the two\n\ncompanies, did you the same way. What can you do about it? And you' re elected officials and as I\n\nstated, it's a shame before God that you are holding those two racist companies. i6\nIn its response to this office, the Council asserted that Mayor Cunningham\n\ninterrupted\n\nto enforce the Council's rules prohibiting rude or slanderous remarks\n\nand personal attacks. This office has previously addressed the propriety of the Council's rules\nprohibiting personal attacks and slanderous remarks:\n\nOn its face, this ordinance is susceptible to overbroad and arbitrary\napplication to public statements that do not disrupt the Council's\nproceedings.\n\nFor instance, whether a remark constitutes\n\na\n\npersonal attack\" is an entirely subjective question that is\n\n6 Waukegan City Council, Meeting, February 4, 2019, video recording, 1: 45: 14, available at\n\nnecessarily dependent upon the listener's personal perspective.\nWhen criticism involves the conduct of present or former public\nofficials in the performance of their public duties, significant\nlatitude must be allowed. Further, whether a comment is\n\ndefamatory requires a legal judgement that a tort has been\ncommitted, including a finding that the alleged offending statement\nis false.\n\nSee Hadley v. Doe, 2015 IL 118000, ¶ 30, 34 N. E. 3d 549,\n\n557 (2015) (stating\n\nelements of a cause of action for defamation).\n\nThe Council's rules are devoid of any criteria for determining when\na comment is improper, thus vesting the presiding officer with\nunbridled discretion to limit or prohibit legitimate public criticism\n\nby ruling it \" out of order.\" Accordingly, we conclude that sections\n2- 65. 1(3) and (4) of the Waukegan City Code exceed the\npermissible scope of rules regulating the statutory right to address\n\npublic officials under section 2. 06(g) of OMA. Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 39069, issued April 5, 2016, at 3 (restricting\ncomment criticizing a public official by name impermissible).\nHere,\ncomments regarding Alderman Seger were intended to\nconvey his strong disagreement with the alderman's position regarding the City's use of the two\ntow companies. It does not appear that\n\ncomments alone created a disturbance or\n\notherwise interfered with the efficiency of the Council's proceedings.\n\nA member of the audience.\n\nchose to clap loudly in agreement with\nbut the Council did not instruct that\nindividual to refrain from disturbing the order of the meeting. The Council's restrictions of\ncomments were directed towards his references to a particular Council member in\n\nconnection with the public business of the City. Accordingly, the Council's rules as enforced\n\nagainst\n\nimpermissibly restricted his statutory right to address the Council. See Ill.\n\nAtt' y Geri. PAC Req. Rev. Ltr. 51665, issued February 5, 2019, at 6 (restricting comment\ncriticizing individual board members); Ill. Att' y Gen. PAC Req. Rev. Ltr. 50824, issued July 10,\n2018, at 4- 6 (restricting comment criticizing elected officials by name in connection with public\nmatters impermissible).\n\nIn its response to this office, the Council asserted that even though it enforced its\n\nrules during\ncomments, he nevertheless spoke for the full three minutes permitted\nunder the Council's rules. This office's review of the recording confirmed that, excluding Mayor\nCunningham's interruptions,\nspoke for approximately two minutes and fifty- seven\nseconds before leaving the podium, but he was also asked to leave the Council chambers. Even\nthough Mayor Cunningham did not completely prohibit\n\ninterruptions unreasonably interfered with\nAccordingly, this office concludes\n\nthat\n\nthe\n\ncomments, the repeated\n\nenforcing' an unreasonable rule to infringe on\nFebruary ' 4, 2019, meeting.\n\nright to address the Council at its\n\nFebruary 19, 2019, Council Meeting\nfurther alleges that during the February 19, 2019, Council meeting,\nthe mayor struck his gavel and told him that he could not stand to the side of the podium, but\n\nmust fac the mayor when delivering his public comments.\n\nalso contended that\n\nMayor Cunningham violated OMA by having him removed for alleged electioneering, during the\npublic\n\ncomment\n\nperiod.\n\nThis office has reviewed the recording of the February 19, 2019, Council meeting\nthat is available on YouTube.\n\napproached the podium from the side and turned his\n\nbody away from the Council, towards the audience. He stated that he was \" speaking to the\n\ncitizens.\" 7 Mayor Cunningham repeatedly struck his gavel, asked\nCouncil, and informed\n\nto face the\n\nthat he was out of order. After 39 seconds, however, Mayor\n\nCunningham stopped interrupting and permitted\n\nto proceed with his remarks.\n\nSection 2. 06(g) of OMA provides any person \" an opportunity to address public\nadded.).\nBoth\nactions in turning away from the Council\nmembers, and his declaration that he was speaking to the citizens make it clear that he was there\nofficials\" (emphasis\n\nto address the public present at the meeting, rather than the public officials. Therefore, the\nCouncil's interruption to advise\n\nto address the Council did not violate section\n\n2. 06(g) of OMA.\ncontinued with his remarks, stating, in relevant part:\nWhat needs to happen here is, there needs to be a switching out of\nquite a few of these aldermen. And I tell you the truth when I tell\n\nyou that the casino is priority way more than your health, and that's\nno\n\ngood.\n\nIt's important that you citizens know that you're the boss, they' re\nnot your boss, you' re their boss. And I ask you to remember, when\nit was time to raise taxes, remember\n\nthose aldermen\n\nwho raised\n\nWaukegan City Council, Meeting, February 19, 2019, video recording, 1: 08: 32, available at\n\ntaxes. Switch them out. It's time for change, people. A lot of this\n\nwe bring on ourself. I think of Alderman Moisio is up this trip. Get\nrid of him.\nrecord\n\nwill be transparent. She will tell the truth. Her\n\nshows.\n\nGet him out of there. [\n\nGavel.] I81\n\nMayor Cunningham then struck his gavel and ordered\n\nCouncil chambers for electioneering.\nCunningham's\n\nobjections,\n\nto be removed from the\n\ncontinued to speak over Mayor\n\nstating, \"[ a] nd as for [ Alderman] Seger, * * *\n\nI view Segar as\n\nincompetent, lost in space, and I have no idea why you would not get rid of him. i9\nIn its response to this office, the Council asserted that it had\nremoved\n\nfrom the Council\n\nelectioneering\n\nfor candidate(referenced was\n\nchambers\ns).\"\n\n1°\n\nbecause he violated\n\nits rule prohibiting \"[ e] ngag[ ing] in\n\nThe Council explained that the \"\n\nwho was running against Alderman Moisio in the February\n\n26, 2019,; primary election for Waukegan's 3rd Ward alderman. The response also emphasized.\nthat\n\ncomment were directed to the audience rather than the Council.\n\nAlthough this office has not previously addressed the reasonableness of a rule\nprohibiting electioneering during public comment, this office has determined that it is reasonable\n\nfor a public body to limit public comment to topics germane to matters that a public body has the\nauthority to consider. Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6.\n\nSimilarly, courts have consistently recognized an important governmental interest in limiting\ncomments to matters directly relevant to that public body's business. See, e. g., Scroggins v. City\nof Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did not violate first\n\namendment to the United States Constitution by restricting personal comments about an\nappointee' to a mayoral commission that were not directly relevant to the business of the public\nbody). Requiring a public body to permit public comment on matters unrelated to its public\n\nbusiness would impede the public body's ability to run efficient meetings. See Rowe v. City of\nCocoa, Fla., 358 F. 3d 800, 803 (1 lth Cir. 2004) (\"\n\na city council meeting is not open for endless\n\npublic commentary speech but instead is simply a limited platform to discuss the topic at hand.\").\n\n8 Waukegan City Council, Meeting, February 19, 2019, video recording, 1: 09: 46, available at\nhttps:// www. youtube. com/ watch? v= 6vMNaCizC\n\ns.\n\nWaukegan City Council, Meeting, February 19, 2019,. video recording, 1: 10: 50, available at\nhttps:// wwW. youtube. com/ watch? v= 6vMNaCizC\n\ns.\n\n10 Code of Ordinances of Waukegan, Illinois, Section 2- 65. 1(6), available at\n\nhttps:// library. municode. com/ il/ waukegan/ codes/ code_ of ordinances? nodeId= COOR_ CH2AD_ ARTIICICO_ DIV2\n\nMerriam - Webster's Dictionary defines \" electioneer\" as \" to take an active part in\n\n1\nan election\n\nspecifically:\n\nto work\n\nfor the\n\nelection\n\nof a candidate\n\nor\n\nparty[.] i11 (Emphasis in\n\nElectioneering is not part of the Council's authority, and therefore comments\npromoting specific aldermanic candidates are not germane to the Council's business. Although\noriginal.)\n\ninitial comments could be construed as general criticism of the Council, he then\n\nurged the, public specifically to vote for Alderman Moisio's competitor in an upcoming primary\nelection\nbey stating: \" I think of Alderman Moisio is up this trip. Get rid of him.\nwill be\ntransparent. She will tell the truth. Her record shows. Get him out of there. i12 Because the\npromotion\n\nof the candidate\n\nwas not relevant to the work of the Council, this office concludes\n\nthat\n\nthe Council did not violate the requirements of OMA by enforcing its rule prohibiting\nelectioneering to limit\n\npublic comments.\nOther Allegations\n\nexample\n\nalleged that the Council enforces its rules inconsistently. The only\n\nthat\n\nprovided to support this allegation\n\nwas that at an unidentified\n\nCouncil\n\nmeeting, the mayor warned a woman to not use a certain expletive, but that \" an elder\" 13 used the\nsame expletive on November\nspeaker.\n\nSection\n\n19, 2018, and the mayor did not warn or otherwise\n\n3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2018))\n\nprovides\n\nthat \"[\n\ncaution that\na]\n\nperson\n\nwho\n\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith\n\nthe\n\nPublic Access Counselor[,]\" and that the submission \" must include a summary of the\n\nfacts supporting\n\nthe\n\nman referenced\n\nin\n\nallegation regarding the mayor's warning to the\nwoman is, vague, as he did not identify a particular meeting during which the warning took place.\nThis office has viewed the recording of the November 19, 2018, meeting, and observed that the\nallegation.\"\n\nRequest for Review used the expletive after his time for\n\ncomment; had ended, but this office is unaware of any pertinent details regarding the woman's\nstatements. Accordingly,\nsupport\n\na' violation\n\nwith\n\ndid not provide a summary of the facts sufficient to\nrespect\n\nto \" Incident 4,\" and this office will take no further action as to\n\nthis allegation.\n\n11https:// www. merriam- webster. com/ dictionary/ electioneer\n12 Waukegan City Council, Meeting, February 19, 2019, video recording, 1: 09: 46, available at\nhttps:// www. youtube. com/ watch? v= 6vMNaCjzC\nE- mail from\n\ns.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter, LHarter@atg.state.il.us, or (217) 524- 7958.\nThis letter serves to close this file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n56926\n\no\n\n206g proper improper mun"}
{"id":1295,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-03-07","case_number":null,"request_numbers":["57090"],"title":"City of Elmhurst Fire and Police Board complaint rejected as untimely under OMA","filename":"57090, issued March 7, 2019.pdf","rel_path":null,"word_count":629,"summary":"The requester alleged that the City of Elmhurst Board of Fire and Police Commissioners violated the Open Meetings Act during a December 17, 2018, meeting, but the PAC determined the request was filed after the statutory deadline.","plain_summary":"A citizen tried to file a complaint against the Elmhurst Board of Fire and Police Commissioners for an alleged Open Meetings Act violation. The Attorney General's office rejected the complaint because it was filed too late. Under Illinois law, you generally have 60 days to report an alleged violation, and this request missed that deadline.","holding":"The PAC declined to review the allegations because the Request for Review was not filed within the 60-day statutory period required by OMA.","legal_question":"Whether a Request for Review filed under section 3.5(a) of the Open Meetings Act was submitted within the required 60-day statutory timeframe.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Elmhurst Board of Fire and Police Commissioners","requesting_party":null,"pac_outcome":"Closed due to untimely filing","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester challenged the conduct of a special meeting held by the Board of Fire and Police Commissioners.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/Reasonable-diligence-if-did-not-discover-violation-within-60-days/57090, issued March 7, 2019.pdf","sha256":"e63484249ad56d91664c40ffb2fa3b1760270e0195930285ba58d1abe0044677","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["statute of limitations","filing deadline","Open Meetings Act","procedural dismissal"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 7, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review —2019 PAC 57090\nDear\n\nOn March 2, 2019, the Public Access Bureau received your Request for Review\n\nin which you allege that the City of Elmhurst Board of Fire and Police Commissioners ( Board)\nviolated the Open Meetings Act ( OMA) (5 ILCS 120/ 1 et. seq. ( West 2016)) in connection with\nits December 17, 2018, special meeting.\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60 -day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\n\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. ( Emphasis added.)\nUnder the plain language of section 3. 5( a), a person must submit a Request for\nReview within 60 days after an alleged violation unless the person did not discover facts\n\nconcerning the alleged violation within those 60 days despite utilizing reasonable diligence.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814. 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale,\n\nIllinois\n\n62901 • (\n\n618)\n\n529- 6400 •\n\nTTY: ( 877)\n\n675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMarch 7, 2019\nPage 2\n\nYou e- mailed your Request for Review to this office on March 2, 2019, which is\n\nmore than 60 days after you allege that the Board improperly took final action on matters that\nwere not adequately identified on the agenda for its December 17, 2018, special meeting. Your\nRequest for Review states that the minutes were made publicly available shortly after the Board\napproved them at its February 4, 2019, meeting, and asserts that \"[ a] person utilizing reasonable\ndiligence would have discovered the alleged violation on or shortly after February 4, 2019. I am\n\nfiling my Request for Review within 60 days of that date. Therefore, I believe the Request for\nReview is filed in a timely manner.\" l\nWe disagree. February 4, 2019, was 11 days before the initial 60 -day period for\nfiling a Request for Review expired. A person who would have discovered facts concerning a\nviolation within the initial 60 -day period by using reasonable diligence may not avail himself or\nherself of the extended period for filing a Request for Review under the plain language of section\n3. 5( a) of OMA. Because you did not submit your Request for Review before the statutory period\n\nfor doing so expired, this office lacks authority to review your allegations concerning the Board' s\nDecember 17, 2018, special meeting.\n\nAccordingly, this file is closed. If you have any questions, you may contact me at\nthe Chicago address on the first page of this letter or at ( 312) 814- 6437.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n57090 o no fi war mun\n\ncc:\n\nMr. Emil D. Haddad\n\nChairman, Board of Police and Fire Commissioners\n\nCity of Elmhurst\n209 North York Street\nElmhurst, Illinois 60126\n\nE- mail from\n2019).\n\nto Public Access [ Bureau, Office of the Attorney General ( March 2,\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A special meeting of a fire and police commission board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57090/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 7, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review —2019 PAC 57090\nDear\n\nOn March 2, 2019, the Public Access Bureau received your Request for Review\n\nin which you allege that the City of Elmhurst Board of Fire and Police Commissioners (Board)\nviolated the Open Meetings Act (OMA) (5 ILCS 120/ 1 et. seq. (West 2016)) in connection with\nits December 17, 2018, special meeting.\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2016)) provides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60 -day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\n\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. (Emphasis added.)\nUnder the plain language of section 3. 5(a), a person must submit a Request for\nReview within 60 days after an alleged violation unless the person did not discover facts\n\nconcerning the alleged violation within those 60 days despite utilizing reasonable diligence.\n\nYou e- mailed your Request for Review to this office on March 2, 2019, which is\n\nmore than 60 days after you allege that the Board improperly took final action on matters that\nwere not adequately identified on the agenda for its December 17, 2018, special meeting. Your\nRequest for Review states that the minutes were made publicly available shortly after the Board\napproved them at its February 4, 2019, meeting, and asserts that \"[ a] person utilizing reasonable\ndiligence would have discovered the alleged violation on or shortly after February 4, 2019. I am\n\nfiling my Request for Review within 60 days of that date. Therefore, I believe the Request for\nReview is filed in a timely manner.\" l\nWe disagree. February 4, 2019, was 11 days before the initial 60 -day period for\nfiling a Request for Review expired. A person who would have discovered facts concerning a\nviolation within the initial 60 -day period by using reasonable diligence may not avail himself or\nherself of the extended period for filing a Request for Review under the plain language of section\n3. 5(a) of OMA. Because you did not submit your Request for Review before the statutory period\n\nfor doing so expired, this office lacks authority to review your allegations concerning the Board's\nDecember 17, 2018, special meeting.\n\nAccordingly, this file is closed. If you have any questions, you may contact me at\nthe Chicago address on the first page of this letter or at (312) 814- 6437.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n57090 o no fi war mun\n\ncc:\n\nMr. Emil D. Haddad\n\nChairman, Board of Police and Fire Commissioners\n\nCity of Elmhurst\n209 North York Street\nElmhurst, Illinois 60126\n\nE- mail from\n2019).\n\nto Public Access [ Bureau, Office of the Attorney General (March 2,"}
{"id":1296,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-04-29","case_number":null,"request_numbers":["57245"],"title":"Waukegan School Board violated OMA by discussing board conduct in closed session","filename":"57245, issued April 29, 2019.pdf","rel_path":null,"word_count":1776,"summary":"The PAC determined that the Waukegan Community Unit School District No. 60 Board of Education violated the Open Meetings Act by discussing matters in a closed session that did not fall under the cited exceptions.","plain_summary":"A reporter alleged that a school board improperly discussed topics in a private meeting that should have been held in public. The Attorney General's office agreed, finding that the board discussed issues not covered by the legal exceptions they claimed. The board was asked to release the audio recording of those specific parts of the meeting to the public.","holding":"The Board violated the Open Meetings Act by discussing the conduct and performance of Board members and potential policy changes in a closed session that was not authorized by the cited exception.","legal_question":"Whether the Waukegan Community Unit School District No. 60 Board of Education violated the Open Meetings Act by discussing the conduct of board members and policy changes during a closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Waukegan Community Unit School District No. 60 Board of Education","requesting_party":"Ms. Emily Coleman, Lake County News-Sun","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board held a closed session to discuss the conduct and performance of board members and potential policy changes.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/57245, issued April 29, 2019.pdf","sha256":"0059e42fac68dc1050e5cd534b82fa4ff5cc1fdb1e4536011c8b13b82ab1841d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","open meetings act","verbatim recording"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 29, 2019\n\nVia electronic mail\n\nMs. Emily Coleman, Reporter\nLake County News -Sun\n\nChicago Tribune Media Group\nemcoleman@tribpub.\n\ncom\n\nVia electronic mail\nMr. Thomas A. Morris, Jr.\nWaukegan Public Schools\n\nLincoln Center for Educational Services\n[street address redacted for site publication -- see original PDF]\ntmorris@wps60. org\nRE: OMA Request for Review — 2019 PAC 57245\nDear Ms. Coleman and Mr. Morris:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Waukegan Community Unit School District No. 60 ( District) Board of\nEducation ( Board) violated OMA during its March 4, 2019, meeting by discussing a specific\nmatter in closed session that was outside the scope of the exceptions, to the general requirement\n\nthat public bodies conduct business openly, that the Board relied on to close the meeting.\nBACKGROUND\n\nOn March 13, 2019, this office received Ms. Emily Coleman' s Request for\n\nReview, submitted on behalf of the Lake County News -Sun, alleging that at its March 4, 2019,\nclosed session meeting, the Board violated OMA by improperly discussing matters related to the\nDistrict' s actions in response to one of its employees being arrested. To support her allegation,\nMs. Coleman referenced comments by Board members during the open session portion of the\nmeeting that she believed indicated that improper discussion had taken place in the closed\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416.\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nApril 29, 2019\nPage 2\n\nsession portion of the meeting.\n\nOn March 18, 2019, this office sent a copy of the Request for\n\nReview to the Board and requested that it provide a written response to Ms. Coleman' s\n\nallegation. This office requested copies of the meeting agenda, open and closed session minutes,\nand the verbatim recording of the closed session discussion. On March 26, 2019, this office\nreceived the requested materials and the Board' s answer, which was asserted to be confidential:\nThe Board also provided this office with an analysis of the closed session discussion, portions of\nwhich were asserted to be confidential.\n\nOn March 27, 2019, this office sent Ms. Coleman a non -\n\nconfidential version of the analysis the Board provided to this office. On March 28, 2019, this\n\noffice received Ms. Coleman' s reply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 111. App. 3d\n161,\n\n171 ( 5th Dist. 1989).\n\nClosed Session Discussion\n\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018) provides that all meetings of a public body shall be open to\n\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n\n2( c) of OMA ( 5 ILCS 120/ 2( c) ( West 2017 Supp.), as amended by Public Act 100- 646, effective\nJuly 31, 2018). The section 2( c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\"\n\n5 ILCS 120/ 2( b) ( West 2017 Supp.), as amended by Public\n\nAct 100- 646, effective July 31, 2018; see also Henry v. Anderson, 356 I11. App. 3d 952, 996- 97\n4th Dist. 2005) ( strictly construing section 2( c)( 1) of OMA ( 5 ILCS 120/ 2( c)( 1) ( West 2002)).\nThe draft minutes provided by the Board of the open portion of its March 4, 2019,\nmeeting indicate that the Board voted to enter closed session citing, among other sections,\nsection 2( c)( 1) of OMA ( 5 ILCS 120/ 2( c)( 1) ( West 2017 Supp.), as amended by Public Act 100646, effective July 31, 2018). That provision permits a public body to discuss in closed session\ndhe appointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body.\" In construing section 2( c)( 1)\nof OMA, the Attorney General has concluded that \" the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\nsession pursuant\nto section 2( c)( 1).\"\nI11. Att' y Gen. Pub. Acc. Op. No. 16- 013, issued December\n\n23, 2016, at 4. Rather, \" section 2( c)( 1) of OMA 'is intanded to permit public bodies to candidly\ndiscuss the relative merits\nAtt' y Gen. Pub. Acc.\n\nof\n\nindividual employees,\n\nOp. No. 16- 013,\n\nat\n\nor\n\n5 ( quoting I11.\n\nthe conduct\n\nof\n\nindividual\n\nemployees.\"'\n\nAtt' y Gen. Pub. Acc. Op. No. 12- 011,\n\n111.\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\n\nApril 29, 2019\nPage 3_\n\nissued July 11, 2012, at 3) . The Public Access Bureau has previously determined that \"[ t] he use\nof the term ' specific employees' in section 2( c)( 1) significantly limits the scope of the exception\"\nto \" the hiring merits, performance, conduct or terms of employment of individual employees.\"\n111. Att' y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.\nThe Board stated, in the non -confidential portion of its analysis of the closed\nsession discussion, that its discussion concerned the performance of a particular employee who\nwas charged with sexual abuse of a minor and \" the performance of specific individuals in\nmanaging communications with the Board of Educatioh related to the ' arrest' and criminal\nsometime\nafter he left Lincoln Center * * *\nallegedly filed against [ that employee]\n\ncharges\n\nTuesday\n\nafternoon,\n\nFebruary\n\n19, 2019, in the company\n\nof two\n\nChicago police\n\nofficers.\"'\n\non\n\nThe\n\nBoard' s analysis described the discussions as \" critiques by certain Board members about the job\nperformance of specific individuals ( in\nrelationship to [ the arrested individual]).\" 2 In her reply,\nMs. Coleman disputes that the term \" performance\" for.purposes of section 2( c)( 1) should be\n\nbroadly construed to encompass closed session discussions in which a public body reviews\nemployees' policy decisions.\n\nBased on this office' s review of the verbatim recording of the March 4, 2019,\nmeeting, most of the Board's discussion concerned the performance of the employee who was\n\ncharged and how other specific employees of the District exercised judgment in performing their\nduties after the employee left the District office with police. Questions were posed to employees\n\nand related discussions ensued which primarily evaluated specific employees' conduct. We\nagree with the Board' s characterization of the discussions as critiques ofjob performance—\n\ndiscussions evaluating specific employees' exercise of judgment directly concerns those\nemployees' performance.\n\nAt no time, with the exception of a single comment at the 12: 40 mark\n\nthat is addressed below, did the Board discuss or otherwise assess District policies. Thus, the\nportions of the Board' s closed session discussion that critiqued the performance of District\nemployees were authorized by the section 2( c)( 1) exception.\n\nThe Board, however, did not entirely limit its closed session discussion to\npersonnel matters encompassed by section 2( c)( 1) of OMA. In one instance, as acknowledged\n\nby the Board, at the 12: 40 mark of the verbatim recording of the first closed session an individual\n\npresent in the closed session asked whether the Board should consider implementing a policy\nchange. Before deliberations could begin on that topic, two individuals stated that discussion of\nthat question was not a proper topic for closed session.\n\nAnalysis of Closed Session Discussion, Redacted Version for Release to Requester, from Thomas\nA. Morris, Jr., General Counsel, Waukegan Community Unit School District No, 60 ( undated), at I .\nAnalysis of Closed Session Discussion, Redacted Version for Release to Requester, from Thomas\nCommunity Unit School District No. 60 ( undated), at 2.\n\nA. Morris, Jr., General Counsel, Waukegan\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nApril 29, 2019\nPage 4\n\nMore significantly, at various points between the 32: 00 and 38: 10 marks of the\nverbatim recording, the Board discussed in detail the conduct and performance of particular\n\nBoard members. The conduct and performance of specific Board members is not within the\nscope of section 2( c)( 1) of OMA. I11. Att' y Gen. Pub. Acc. Op. No. 17- 013, issued November\n21, 2017, at 4 ( concluding that trustees of a village hold public office and are not employees of\n\nthe village). Although section 2( c)( 3) of OMA ( 5 ILCS 120/ 2( c)( 3) ( West 2017 Supp.), as\namended by Public Act 100- 646, effective July 31, 2018) authorizes a public body to discuss in\nclosed session matters relating to the performance of an occupant of public office, that discussion\n\nis permitted only \" when the public body is given power to remove the occupant under law or\n\nordinance.\" Article 10 of the School Code ( 105 ILCS ;5/ 10- 1 et seq. ( West 2016)), which lists\nthe powers of school boards, does not grant a school board the power to remove a school board\n\nmember. Even if the Board did have such authority, it did not cite the section 2( c)( 3) exception\nas a basis for entering closed session. Accordingly, this office concludes that the portions of the\nBoard' s closed session discussion concerning the conduct and performance of Board members\nand the suggested policy change were not authorized by the section2( c)( 1) exception that the\n\nBoard relied upon to close the meeting. To remedy this violation, this office requests that the\n\nBoard publicly release those portions of the closed session verbatim recording\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at ( 217) 782- 9054, mhartman@atg. state. il. us, or the Springfield\naddress on the first page of this letter.\n\nVery truly you s,\n\nAssistant Attorney General\nPublic Access Bureau\n57245\n\no\n\n2c1\n\nproper\n\nimproper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of board member conduct and policy changes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57245/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nApril 29, 2019\n\nVia electronic mail\n\nMs. Emily Coleman, Reporter\nLake County News -Sun\n\nChicago Tribune Media Group\nemcoleman@tribpub.\n\ncom\n\nVia electronic mail\nMr. Thomas A. Morris, Jr.\nWaukegan Public Schools\n\nLincoln Center for Educational Services\n[street address redacted for site publication -- see original PDF]\ntmorris@wps60. org\nRE: OMA Request for Review — 2019 PAC 57245\nDear Ms. Coleman and Mr. Morris:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Waukegan Community Unit School District No. 60 (District) Board of\nEducation (Board) violated OMA during its March 4, 2019, meeting by discussing a specific\nmatter in closed session that was outside the scope of the exceptions, to the general requirement\n\nthat public bodies conduct business openly, that the Board relied on to close the meeting.\nBACKGROUND\n\nOn March 13, 2019, this office received Ms. Emily Coleman's Request for\n\nReview, submitted on behalf of the Lake County News -Sun, alleging that at its March 4, 2019,\nclosed session meeting, the Board violated OMA by improperly discussing matters related to the\nDistrict's actions in response to one of its employees being arrested. To support her allegation,\nMs. Coleman referenced comments by Board members during the open session portion of the\nmeeting that she believed indicated that improper discussion had taken place in the closed\n\nsession portion of the meeting.\n\nOn March 18, 2019, this office sent a copy of the Request for\n\nReview to the Board and requested that it provide a written response to Ms. Coleman's\n\nallegation. This office requested copies of the meeting agenda, open and closed session minutes,\nand the verbatim recording of the closed session discussion. On March 26, 2019, this office\nreceived the requested materials and the Board's answer, which was asserted to be confidential:\nThe Board also provided this office with an analysis of the closed session discussion, portions of\nwhich were asserted to be confidential.\n\nOn March 27, 2019, this office sent Ms. Coleman a non -\n\nconfidential version of the analysis the Board provided to this office. On March 28, 2019, this\n\noffice received Ms. Coleman's reply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 111. App. 3d\n161,\n\n171 (5th Dist. 1989).\n\nClosed Session Discussion\n\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2017 Supp.), as amended by Public\nAct 100- 646, effective July 31, 2018) provides that all meetings of a public body shall be open to\n\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n\n2(c) of OMA (5 ILCS 120/ 2(c) (West 2017 Supp.), as amended by Public Act 100- 646, effective\nJuly 31, 2018). The section 2(c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\"\n\n5 ILCS 120/ 2(b) (West 2017 Supp.), as amended by Public\n\nAct 100- 646, effective July 31, 2018; see also Henry v. Anderson, 356 I11. App. 3d 952, 996- 97\n4th Dist. 2005) (strictly construing section 2(c)(1) of OMA (5 ILCS 120/ 2(c)(1) (West 2002)).\nThe draft minutes provided by the Board of the open portion of its March 4, 2019,\nmeeting indicate that the Board voted to enter closed session citing, among other sections,\nsection 2(c)(1) of OMA (5 ILCS 120/ 2(c)(1) (West 2017 Supp.), as amended by Public Act 100646, effective July 31, 2018). That provision permits a public body to discuss in closed session\ndhe appointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body.\" In construing section 2(c)(1)\nof OMA, the Attorney General has concluded that \" the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\nsession pursuant\nto section 2(c)(1).\"\nI11. Att' y Gen. Pub. Acc. Op. No. 16- 013, issued December\n\n23, 2016, at 4. Rather, \" section 2(c)(1) of OMA 'is intanded to permit public bodies to candidly\ndiscuss the relative merits\nAtt' y Gen. Pub. Acc.\n\nof\n\nindividual employees,\n\nOp. No. 16- 013,\n\nat\n\nor\n\n5 (quoting I11.\n\nthe conduct\n\nof\n\nindividual\n\nemployees.\"'\n\nAtt' y Gen. Pub. Acc. Op. No. 12- 011,\n\n111.\n\nMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\n\nApril 29, 2019\nPage 3_\n\nissued July 11, 2012, at 3). The Public Access Bureau has previously determined that \"[ t] he use\nof the term ' specific employees' in section 2(c)(1) significantly limits the scope of the exception\"\nto \" the hiring merits, performance, conduct or terms of employment of individual employees.\"\n111. Att' y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.\nThe Board stated, in the non -confidential portion of its analysis of the closed\nsession discussion, that its discussion concerned the performance of a particular employee who\nwas charged with sexual abuse of a minor and \" the performance of specific individuals in\nmanaging communications with the Board of Educatioh related to the ' arrest' and criminal\nsometime\nafter he left Lincoln Center * * *\nallegedly filed against [ that employee]\n\ncharges\n\nTuesday\n\nafternoon,\n\nFebruary\n\n19, 2019, in the company\n\nof two\n\nChicago police\n\nofficers.\"'\n\non\n\nThe\n\nBoard's analysis described the discussions as \" critiques by certain Board members about the job\nperformance of specific individuals (in\nrelationship to [ the arrested individual]).\" 2 In her reply,\nMs. Coleman disputes that the term \" performance\" for.purposes of section 2(c)(1) should be\n\nbroadly construed to encompass closed session discussions in which a public body reviews\nemployees' policy decisions.\n\nBased on this office's review of the verbatim recording of the March 4, 2019,\nmeeting, most of the Board's discussion concerned the performance of the employee who was\n\ncharged and how other specific employees of the District exercised judgment in performing their\nduties after the employee left the District office with police. Questions were posed to employees\n\nand related discussions ensued which primarily evaluated specific employees' conduct. We\nagree with the Board's characterization of the discussions as critiques ofjob performance—\n\ndiscussions evaluating specific employees' exercise of judgment directly concerns those\nemployees' performance.\n\nAt no time, with the exception of a single comment at the 12: 40 mark\n\nthat is addressed below, did the Board discuss or otherwise assess District policies. Thus, the\nportions of the Board's closed session discussion that critiqued the performance of District\nemployees were authorized by the section 2(c)(1) exception.\n\nThe Board, however, did not entirely limit its closed session discussion to\npersonnel matters encompassed by section 2(c)(1) of OMA. In one instance, as acknowledged\n\nby the Board, at the 12: 40 mark of the verbatim recording of the first closed session an individual\n\npresent in the closed session asked whether the Board should consider implementing a policy\nchange. Before deliberations could begin on that topic, two individuals stated that discussion of\nthat question was not a proper topic for closed session.\n\nAnalysis of Closed Session Discussion, Redacted Version for Release to Requester, from Thomas\nA. Morris, Jr., General Counsel, Waukegan Community Unit School District No, 60 (undated), at I.\nAnalysis of Closed Session Discussion, Redacted Version for Release to Requester, from Thomas\n\nMore significantly, at various points between the 32: 00 and 38: 10 marks of the\nverbatim recording, the Board discussed in detail the conduct and performance of particular\n\nBoard members. The conduct and performance of specific Board members is not within the\nscope of section 2(c)(1) of OMA. I11. Att' y Gen. Pub. Acc. Op. No. 17- 013, issued November\n21, 2017, at 4 (concluding that trustees of a village hold public office and are not employees of\n\nthe village). Although section 2(c)(3) of OMA (5 ILCS 120/ 2(c)(3) (West 2017 Supp.), as\namended by Public Act 100- 646, effective July 31, 2018) authorizes a public body to discuss in\nclosed session matters relating to the performance of an occupant of public office, that discussion\n\nis permitted only \" when the public body is given power to remove the occupant under law or\n\nordinance.\" Article 10 of the School Code (105 ILCS;5/ 10- 1 et seq. (West 2016)), which lists\nthe powers of school boards, does not grant a school board the power to remove a school board\n\nmember. Even if the Board did have such authority, it did not cite the section 2(c)(3) exception\nas a basis for entering closed session. Accordingly, this office concludes that the portions of the\nBoard's closed session discussion concerning the conduct and performance of Board members\nand the suggested policy change were not authorized by the section2(c)(1) exception that the\n\nBoard relied upon to close the meeting. To remedy this violation, this office requests that the\n\nBoard publicly release those portions of the closed session verbatim recording\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 782- 9054, mhartman@atg. state. il. us, or the Springfield\naddress on the first page of this letter.\n\nVery truly you s,\n\nAssistant Attorney General\nPublic Access Bureau\n57245\n\no\n\n2c1\n\nproper\n\nimproper sd"}
{"id":1297,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-05-02","case_number":null,"request_numbers":["57843"],"title":"Centralia City Council private bar meetings not subject to Open Meetings Act","filename":"57843, issued May 2, 2019.pdf","rel_path":null,"word_count":948,"summary":"A requester alleged that the Centralia City Council violated the Open Meetings Act by holding private meetings at local establishments to discuss public business and election strategy. The PAC determined that the allegations involved political gatherings rather than the transaction of public business, and therefore no further action was warranted.","plain_summary":"A citizen complained that members of the Centralia City Council were meeting privately at local bars to discuss city business and election strategies. The Attorney General's office reviewed the claim and decided not to take further action, explaining that private political gatherings do not violate the Open Meetings Act unless they involve the transaction of official public business. This means the PAC found no evidence of an illegal meeting of the public body.","holding":"The PAC concluded that no further action was warranted because the alleged private gatherings did not constitute meetings held to transact public business under the Open Meetings Act.","legal_question":"Whether informal gatherings of public officials for political purposes or outside of official business constitute 'meetings' subject to the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Centralia City Council","requesting_party":null,"pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"Alleged private meetings of city council members at local establishments to discuss public business and election strategy.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/exclusion-of-purely-political-gatherings/57843, issued May 2, 2019.pdf","sha256":"ae07848e88fa2b830256cbf0c755d192912f1e8df69618c7a56fd80795af5a68","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","political gathering","public business","quorum"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 2, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review - 2019 PAC 57843\nDear-:\nThis determination letter is issued pursuant to section 3.5(b) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(b) (West 2016)). For the reasons set forth below, the Public Access\nBureau concludes that no further action in this matter is warranted.\nIn your Request for Review, received April 24, 2019, you alleged that the\nCentralia City Council (Council) routinely violates OMA by holding private meetings at the\nCentralia House before official Council meetings and at McGuire's Tavern after those official\nmeetings. You attached a picture of what you indicated was a quorum of Council members at\nMcGuire's, and alleged that the \"[t]opic of discussion was the upcoming elections in April and\nStrategy to stay in power.\" 1 In follow-up correspondence on April 26, 2019, you alleged that\n\"[!]here are zero council agenda items\" with respect to three elected officials running as a trio,\nand that \"[t]his is more evidence of these 3 working together out of the public eyes.\" 2\nSection 3.5(a) of OMA (5 ILCS 120/3.S(a) (West 2016)) authorizes this office to\ntake further action when a Request for Review alleging a potential violation of OMA meets the\nfollowing requirements:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n1\n\nLetter from\n\nto the Public Access Counselor (April 24, 20 I 9).\n\n'E-mail from- to [Sarah] Pratt (April 26, 2019).\n\n500 Soulh Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\nJOO West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fMay 2, 2019\nPage 2\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. The request for review * * •\nmust include a summary of the facts supporting the allegation.\n(Emphasis added.)\nAs a threshold matter, your Request for Review neither indicated when the\nquorum ofCouncil members gathered at McGuire's as depicted in the photograph you provided,\nnor identified any other dates on which the Council allegedly held an improper private meeting\nat the Centralia House or McGuire's. Because section 3.S(a) of OMA requires a Request for\nReview to be submitted within 60 days after an alleged violation occurred unless facts\nconcerning the alleged violation were not discovered within those 60 days by a person using\nreasonable diligence, the date (or approximate date, ifthe exact date is unknowable) on which\nany alleged violation occurred is a necessary fact to set forth in a Request for Review in order to\nwarrant further action by this office.\nFurthermore, with respect to your specific allegation that the Council members\ndiscussed an upcoming election and staying in power, the definition of \"meeting\" in OMA is\nlimited to gatherings ofthe members ofa public body that are \"held for the purpose ofdiscussing\npublic business[.]\" 5 ILCS 120/1.02 (West 2016). The Illinois Supreme Court has advised that\nOMA \"is not intended to prohibit bona fide social gatherings ofpublic officials, or truly political\nmeetings at which party business is discussed. Rather, the Act is designed to prohibit secret\ndeliberation and action on business which properly should be discussed in a public forum due to\nits potential impact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191,202 (1980).\nAccordingly, the Public Access Bureau has determined that private social and political\ngatherings ofthe members ofa public body do not violate the openness requirements ofOMA, 3\nas long as the members of the public body do not deliberate about public business. See, for\ninstance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 13792, issued July 6, 2011, at 2 (attendance of\nschool board members at campaign-related social gathering was not a meeting subject to OMA).\nThe information you set forth in your Request for Review is insufficient to\nindicate that the gathering at McGuire's was held for the purpose ofdiscussing public business\nand therefore constituted a \"meeting\" subject to the requirements ofOMA. Likewise, the alleged\nabsence ofagenda items concerning three elected officials running as a trio and the notion that\nthose three have worked together on electoral matters in private does not indicate that the\nCouncil violated OMA because of the legal distinction between political gatherings and meetings\n'Section 2(a) of OMA (5 ILCS 120/2(a) (West 2017 Supp.), as amended by Public Act 100-646,\neffective July 27, 2018) provides that \"all meetings of public bodies shall be open to the public unless excepted in\nsubsection (c) and closed in accordance with Section 2a.\"\n\n\f_,..\nPage 3\n\nheld to transact public business. Accordingly, the Public Access Bureau has determined that no\nfurther inquiry is warranted in this matter.\nThis letter serves to close this matter. If you have any questions, please contact\nme at (217) 782-1699, ldraws@atg.state.il.us, or the Springfield address on the bottom of the\nfirst page of this letter.\nVery truly yours,\n\nLEO DRAWS\nAssistant Attorney General\nPublic Access Bureau\n57843 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Tom Ashby\nMayor\nCity of Centralia\n101 South Locust Street\nCentralia, Illinois 62801\ntashby@cityofcentralia.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Private meetings of city council members at local establishments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57843/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 2, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review - 2019 PAC 57843\nDear-:\nThis determination letter is issued pursuant to section 3.5(b) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(b) (West 2016)). For the reasons set forth below, the Public Access\nBureau concludes that no further action in this matter is warranted.\nIn your Request for Review, received April 24, 2019, you alleged that the\nCentralia City Council (Council) routinely violates OMA by holding private meetings at the\nCentralia House before official Council meetings and at McGuire's Tavern after those official\nmeetings. You attached a picture of what you indicated was a quorum of Council members at\nMcGuire's, and alleged that the \"[t]opic of discussion was the upcoming elections in April and\nStrategy to stay in power.\" 1 In follow-up correspondence on April 26, 2019, you alleged that\n\"[!]here are zero council agenda items\" with respect to three elected officials running as a trio,\nand that \"[t]his is more evidence of these 3 working together out of the public eyes.\" 2\nSection 3.5(a) of OMA (5 ILCS 120/3.S(a) (West 2016)) authorizes this office to\ntake further action when a Request for Review alleging a potential violation of OMA meets the\nfollowing requirements:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n1\n\nLetter from\n\nto the Public Access Counselor (April 24, 20 I 9).\n\n'E-mail from- to [Sarah] Pratt (April 26, 2019).\n\n500 Soulh Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\nJOO West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. The request for review * * •\nmust include a summary of the facts supporting the allegation.\n(Emphasis added.)\nAs a threshold matter, your Request for Review neither indicated when the\nquorum ofCouncil members gathered at McGuire's as depicted in the photograph you provided,\nnor identified any other dates on which the Council allegedly held an improper private meeting\nat the Centralia House or McGuire's. Because section 3.S(a) of OMA requires a Request for\nReview to be submitted within 60 days after an alleged violation occurred unless facts\nconcerning the alleged violation were not discovered within those 60 days by a person using\nreasonable diligence, the date (or approximate date, ifthe exact date is unknowable) on which\nany alleged violation occurred is a necessary fact to set forth in a Request for Review in order to\nwarrant further action by this office.\nFurthermore, with respect to your specific allegation that the Council members\ndiscussed an upcoming election and staying in power, the definition of \"meeting\" in OMA is\nlimited to gatherings ofthe members ofa public body that are \"held for the purpose ofdiscussing\npublic business[.]\" 5 ILCS 120/1.02 (West 2016). The Illinois Supreme Court has advised that\nOMA \"is not intended to prohibit bona fide social gatherings ofpublic officials, or truly political\nmeetings at which party business is discussed. Rather, the Act is designed to prohibit secret\ndeliberation and action on business which properly should be discussed in a public forum due to\nits potential impact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191,202 (1980).\nAccordingly, the Public Access Bureau has determined that private social and political\ngatherings ofthe members ofa public body do not violate the openness requirements ofOMA, 3\nas long as the members of the public body do not deliberate about public business. See, for\ninstance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 13792, issued July 6, 2011, at 2 (attendance of\nschool board members at campaign-related social gathering was not a meeting subject to OMA).\nThe information you set forth in your Request for Review is insufficient to\nindicate that the gathering at McGuire's was held for the purpose ofdiscussing public business\nand therefore constituted a \"meeting\" subject to the requirements ofOMA. Likewise, the alleged\nabsence ofagenda items concerning three elected officials running as a trio and the notion that\nthose three have worked together on electoral matters in private does not indicate that the\nCouncil violated OMA because of the legal distinction between political gatherings and meetings\n'Section 2(a) of OMA (5 ILCS 120/2(a) (West 2017 Supp.), as amended by Public Act 100-646,\neffective July 27, 2018) provides that \"all meetings of public bodies shall be open to the public unless excepted in\nsubsection (c) and closed in accordance with Section 2a.\"\n\n_,..\nPage 3\n\nheld to transact public business. Accordingly, the Public Access Bureau has determined that no\nfurther inquiry is warranted in this matter.\nThis letter serves to close this matter. If you have any questions, please contact\nme at (217) 782-1699, ldraws@atg.state.il.us, or the Springfield address on the bottom of the\nfirst page of this letter.\nVery truly yours,\n\nLEO DRAWS\nAssistant Attorney General\nPublic Access Bureau\n57843 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Tom Ashby\nMayor\nCity of Centralia\n101 South Locust Street\nCentralia, Illinois 62801\ntashby@cityofcentralia.org"}
{"id":1298,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-09-17","case_number":null,"request_numbers":["57900","57903","57916"],"title":"Chicago City Council committees violated OMA by failing to compile and approve proper meeting minutes","filename":"57900 57903 57916, issued September 17, 2019.pdf","rel_path":null,"word_count":1332,"summary":"The requester alleged that various City of Chicago City Council committees failed to vote on meeting minutes during open meetings and failed to post those minutes online. The PAC determined that the committees are not required to post minutes on the website and that the committees provided sufficient information regarding their approval processes.","plain_summary":"A citizen complained that Chicago City Council committees were not voting on meeting minutes in public or posting them online. The Attorney General's office found that the committees' monthly reports lacked required details like a summary of discussion and were not approved by the committees as separate public bodies, violating the Open Meetings Act. The office asked the committees to compile proper minutes for future meetings and to approve them on time, though it noted that the law does not require committees to post minutes on the city website. The files were closed after the city indicated it was taking corrective steps.","holding":"The Public Access Counselor concluded that the committees violated section 2.06 of the Open Meetings Act by failing to compile and approve meeting minutes that contain all required information.","legal_question":"Whether City Council committees are required by the Open Meetings Act to post meeting minutes on a website and whether they must vote to approve minutes during open meetings.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Chicago City Council Committees","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The requester challenged the procedures for approving and publishing meeting minutes for various City of Chicago committees.","ocr_status":"ok","ocr_quality":98,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_a/57900 57903 57916, issued September 17, 2019.pdf","sha256":"47a8e45814bd9c8f89c9bf407ba8c4ef74759b6295fede40c7af7f987801f801","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","city council","open meetings act","website posting"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember 17, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Scott Spears\nAssistant Corporation\n\nCounsel\n\nCity of Chicago Law Department\n30 North LaSalle Street, # 700\nChicago, Illinois 60602\n\nScott. spears@cityofchicago. org\nRE: OMA Request for Review — 2019 PAC 57900; 57903; 57916\n\nDear\n\nand Mr. Spears:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\n5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nBetween April 30, 2019, and May 1, 2019,\n\nsubmitted three\n\nRequests for Review alleging that the City of Chicago City Council' s ( City Council) Committee\non Finance, Committee on Housing and Real Estate, and Committee on Committees, Rules and\n\nEthics ( Committees) violated OMA in connection with those Committees' meeting minutes.\n\nSpecifically,\n\nalleged that the Committees did not include votes to approve meeting\n\nminutes on any agendas in the previous twelve months. She questioned whether the Committees\n\napproved or kept meeting minutes, and alleged that they failed to make meeting minutes\navailable to the public on the City Council' s website or in its Journal of Proceedings.\n\nOn May 9, 2019, this office sent copies of the Requests for Review to each of the\nCommittees and asked them to provide copies of agendas for the Committees' last five meetings\nand minutes of any of those meetings that have been compiled and finalized.\n\nWe also asked the\n\nCommittees to explain their processes for compiling and finalizing minutes, and to clarify\n\nwhether the Committees vote to approve minutes during open meetings. On May 31, 2019, the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n100 West Randolph\n\nFax: ( 217) 782- 7046\n\nStreet, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Scott Spears\nSeptember 17, 2019\nPage 2\n\nCity' s Law Department provided written responses on behalf of each of the Committees together\nwith copies of agendas and monthly reports of Committee proceedings that are required to be\n\nsubmitted to the City Council under its rules of order and procedures. Apart from requesting\ncopies of those agendas and reports,'\n\ndid not reply.\nDETERMINATION\n\nSection 2. 06( a) of OMA ( 5 ILCS 120/ 2. 06( a) ( West 2018)) provides\"\na)\n\ntheir meetings,\n\nAll public bodies shall keep written minutes of all\nwhether\n\nopen or closed,\n\nand a verbatim\n\nrecord\n\nof\n\nall their closed meetings in the form of an audio or video\n\nrecording. Minutes shall include, but need not be limited to:\n1)\n2)\n\nthe date, time and place of the meeting;\nthe members of the public body recorded as either\n\npresent or absent and whether the members were physically\npresent or present by means of video or audio conference; and\n3)\na summary of discussion on all matters proposed,\n\ndeliberated, or decided, and a record of any votes taken.\nSection 2. 06( b) of OMA ( 5 ILCS 120/ 2. 06( b) ( West 2018)) further requires each public body to\napprove the minutes of its open meeting within 30 days after that meeting or at the public body's\nsecond\n\nsubsequent regular meeting,\n\nwhichever\n\nis later[,]\"\n\nand to make minutes \" available for\n\npublic inspection within 10 days after the approval of such minutes by the public body.\"\nThe Committees' responses to this office asserted that they complied with the\n\nabove provisions by preparing monthly reports detailing their activities which are approved by\nthe City Council and incorporated into its Journal of Proceedings.\n\nThe responses stated that the\n\nreports consist of a description of each item considered, a statement showing the number of\nCommittee members voting for or against the item, and a recommendation for action to be taken\n\nby the City Council. The responses added that the City Council recently amended its rules to\nrequire the City Clerk to post the reports online, and stated that the City's Law Department has\nrecommended all committees approve reports of their meetings. The responses also stated that\n\nthe Law Department is working with chairs of City Council committees to improve the reports\nand their content.\n\nSection 3. 5( g) of OMA ( 5 ILCS 120/ 3. 5( g) ( West 2018)) provides that \"[ r] ecords that are\n\nobtained by the Public Access Counselor from a public body for purposes of addressing a request for review under\nthis Section 3. 5 may not be disclosed to the public, including the requester, by the Public Access Counselor.\"\nTherefore, this office\n\nwas unable to provide\n\nwith the\n\nagendas and reports.\n\n\fMr. Scott Spears\n\nSeptember 17, 2019\nPage 3\n\nThis office has reviewed copies of the Committees' monthly reports that were\nsubmitted for our review and determined that they do not contain all of the information that\n\nsection 2. 06( 6) of OMA requires for meeting minutes. Although the reports generally indicate\n\nwhether action items passed, failed, or were held over, the reports do not include a summary of\ndiscussion on all matters proposed, deliberated, or decided as expressly required by section\n2. 06( a) of OMA. Some of the reports issued by the Committee on Committees, Rules and Ethics\ndo indicate that aldermen discussed or made comments on certain agenda items, but the reports\n\ndo not summarize the discussion or comments. Further, the reports were not approved by the\nCommittees, which constitute public bodies that are separate from the City Council.' The plain\nlanguage of section 2. 06( b) of OMA requires a public body that holds a meeting to approve the\nminutes of that meeting. Because the reports do not constitute meeting minutes approved by the\nCommittees or contain the requisite detail for meeting minutes, this office concludes that the\nCommittees violated section 2. 06 of OMA. 3\nTo remedy these violations, this office requests that the Committees compile\n\nminutes of future meetings which contain all details required by section 2. 06( a) of OMA, and\napprove them in accordance with the time frame set out in section 2. 06( b) of OMA. It appears\nthat the Committees may already be doing so. In a September 13, 2019, telephone call with an\nAssistant Attorney General in the Public Access Bureau, an Assistant Corporation Counsel in the\n\nCity's Law Department stated that City Council committees are now including the approval of\nmonthly reports as agenda items and providing details of the committees' discussions in those\nreports.\n\nSection 1. 02 defines ( 5 ILCS 120/ 1. 02 ( West 2015)) defines \" public body\" to include \" all\nlegislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages,\nincorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or\ncommissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees\nand subcommittees which are supported in whole or in part by tax revenue[.]\n\nWith respect to\n\nassertion that the Committees' meeting minutes should be posted\n\nonline, section 2. 06( b) of OMA provides \" a public body that has a website that the full- time staff of the public body\nmaintains shall post the minutes of a regular meeting of its governing body open to the public on the public body's\nwebsite.\" (\nEmphasis added.) Because the City Council is the City' s governing body, the committees may— but are\nnot required—\n\nto post minutes on the\n\nCity' s website.\n\n\fMr. Scott Spears\nSeptember\n\n17, 2019\n\nPage 4\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. These files are closed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n57900 57903 57916 0 206 minutes improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Procedures for approving and publishing committee meeting minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57900/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember 17, 2019\n\nVia electronic mail\n\nVia electronic mail\nMr. Scott Spears\nAssistant Corporation\n\nCounsel\n\nCity of Chicago Law Department\n30 North LaSalle Street, # 700\nChicago, Illinois 60602\n\nScott. spears@cityofchicago. org\nRE: OMA Request for Review — 2019 PAC 57900; 57903; 57916\n\nDear\n\nand Mr. Spears:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\n5 ILCS 120/ 3. 5(e) (West 2018)).\n\nBetween April 30, 2019, and May 1, 2019,\n\nsubmitted three\n\nRequests for Review alleging that the City of Chicago City Council's (City Council) Committee\non Finance, Committee on Housing and Real Estate, and Committee on Committees, Rules and\n\nEthics (Committees) violated OMA in connection with those Committees' meeting minutes.\n\nSpecifically,\n\nalleged that the Committees did not include votes to approve meeting\n\nminutes on any agendas in the previous twelve months. She questioned whether the Committees\n\napproved or kept meeting minutes, and alleged that they failed to make meeting minutes\navailable to the public on the City Council's website or in its Journal of Proceedings.\n\nOn May 9, 2019, this office sent copies of the Requests for Review to each of the\nCommittees and asked them to provide copies of agendas for the Committees' last five meetings\nand minutes of any of those meetings that have been compiled and finalized.\n\nWe also asked the\n\nCommittees to explain their processes for compiling and finalizing minutes, and to clarify\n\nwhether the Committees vote to approve minutes during open meetings. On May 31, 2019, the\n\nCity's Law Department provided written responses on behalf of each of the Committees together\nwith copies of agendas and monthly reports of Committee proceedings that are required to be\n\nsubmitted to the City Council under its rules of order and procedures. Apart from requesting\ncopies of those agendas and reports,'\n\ndid not reply.\nDETERMINATION\n\nSection 2. 06(a) of OMA (5 ILCS 120/ 2. 06(a) (West 2018)) provides\"\na)\n\ntheir meetings,\n\nAll public bodies shall keep written minutes of all\nwhether\n\nopen or closed,\n\nand a verbatim\n\nrecord\n\nof\n\nall their closed meetings in the form of an audio or video\n\nrecording. Minutes shall include, but need not be limited to:\n1)\n2)\n\nthe date, time and place of the meeting;\nthe members of the public body recorded as either\n\npresent or absent and whether the members were physically\npresent or present by means of video or audio conference; and\n3)\na summary of discussion on all matters proposed,\n\ndeliberated, or decided, and a record of any votes taken.\nSection 2. 06(b) of OMA (5 ILCS 120/ 2. 06(b) (West 2018)) further requires each public body to\napprove the minutes of its open meeting within 30 days after that meeting or at the public body's\nsecond\n\nsubsequent regular meeting,\n\nwhichever\n\nis later[,]\"\n\nand to make minutes \" available for\n\npublic inspection within 10 days after the approval of such minutes by the public body.\"\nThe Committees' responses to this office asserted that they complied with the\n\nabove provisions by preparing monthly reports detailing their activities which are approved by\nthe City Council and incorporated into its Journal of Proceedings.\n\nThe responses stated that the\n\nreports consist of a description of each item considered, a statement showing the number of\nCommittee members voting for or against the item, and a recommendation for action to be taken\n\nby the City Council. The responses added that the City Council recently amended its rules to\nrequire the City Clerk to post the reports online, and stated that the City's Law Department has\nrecommended all committees approve reports of their meetings. The responses also stated that\n\nthe Law Department is working with chairs of City Council committees to improve the reports\nand their content.\n\nSection 3. 5(g) of OMA (5 ILCS 120/ 3. 5(g) (West 2018)) provides that \"[ r] ecords that are\n\nobtained by the Public Access Counselor from a public body for purposes of addressing a request for review under\nthis Section 3. 5 may not be disclosed to the public, including the requester, by the Public Access Counselor.\"\n\nThis office has reviewed copies of the Committees' monthly reports that were\nsubmitted for our review and determined that they do not contain all of the information that\n\nsection 2. 06(6) of OMA requires for meeting minutes. Although the reports generally indicate\n\nwhether action items passed, failed, or were held over, the reports do not include a summary of\ndiscussion on all matters proposed, deliberated, or decided as expressly required by section\n2. 06(a) of OMA. Some of the reports issued by the Committee on Committees, Rules and Ethics\ndo indicate that aldermen discussed or made comments on certain agenda items, but the reports\n\ndo not summarize the discussion or comments. Further, the reports were not approved by the\nCommittees, which constitute public bodies that are separate from the City Council.' The plain\nlanguage of section 2. 06(b) of OMA requires a public body that holds a meeting to approve the\nminutes of that meeting. Because the reports do not constitute meeting minutes approved by the\nCommittees or contain the requisite detail for meeting minutes, this office concludes that the\nCommittees violated section 2. 06 of OMA. 3\nTo remedy these violations, this office requests that the Committees compile\n\nminutes of future meetings which contain all details required by section 2. 06(a) of OMA, and\napprove them in accordance with the time frame set out in section 2. 06(b) of OMA. It appears\nthat the Committees may already be doing so. In a September 13, 2019, telephone call with an\nAssistant Attorney General in the Public Access Bureau, an Assistant Corporation Counsel in the\n\nCity's Law Department stated that City Council committees are now including the approval of\nmonthly reports as agenda items and providing details of the committees' discussions in those\nreports.\n\nSection 1. 02 defines (5 ILCS 120/ 1. 02 (West 2015)) defines \" public body\" to include \" all\nlegislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages,\nincorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or\ncommissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees\nand subcommittees which are supported in whole or in part by tax revenue[.]\n\nWith respect to\n\nassertion that the Committees' meeting minutes should be posted\n\nonline, section 2. 06(b) of OMA provides \" a public body that has a website that the full- time staff of the public body\nmaintains shall post the minutes of a regular meeting of its governing body open to the public on the public body's\nwebsite.\" (Emphasis added.) Because the City Council is the City's governing body, the committees may— but are\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. These files are closed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n57900 57903 57916 0 206 minutes improper mun"}
{"id":1299,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-10-02","case_number":null,"request_numbers":["58228"],"title":"City of Evanston did not violate OMA for community meeting without agenda","filename":"58228, issued October 2, 2019.pdf","rel_path":null,"word_count":2187,"summary":"A requester alleged that the Evanston City Council violated the Open Meetings Act by cancelling a regular meeting to hold a special meeting regarding the Robert Crown Community Center, but the PAC found no evidence of a quorum or deliberation at the event.","plain_summary":"A resident complained that the Evanston City Council violated the Open Meetings Act by holding a community meeting on May 20, 2019, about the Robert Crown Community Center without posting an agenda or following OMA requirements. The Illinois Attorney General's Public Access Bureau investigated and found that although a majority of a quorum of council members attended, they did not engage in deliberative discussion of public business. Therefore, the event did not constitute a City Council meeting, and no violation occurred.","holding":"The City of Evanston did not violate the Open Meetings Act because the community meeting did not constitute a meeting of the City Council, as the attending council members did not engage in deliberative discussion of public business.","legal_question":"Whether a community meeting attended by only one City Council member constitutes a 'meeting' under the Open Meetings Act requiring public notice and adherence to OMA procedures.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Evanston City Council","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting definition","subject_description":"The requester alleged that a community meeting regarding the Robert Crown Community Center was an improperly conducted City Council meeting.","ocr_status":"ok","ocr_quality":93,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/58228, issued October 2, 2019.pdf","sha256":"7d79bdc82bffdb7084f19e67034d872808e76f856768dea9fc37864cdaaac957","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","quorum","public meeting","city council"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATIORNEY GENERAL\n\nOctober 2, 2019\n\nVia electronic mail\nMs. Alexandra B. Ruggie\nAssistant City Attorney\nCity of Evanston\n2100Ridge Avenue\nEvanston, Illinois 60201\naruggie@cityofevanston.org\nRE:\n\nOMARequest forReview -2019 PAC 58228\n\nDea�and Ms.Ruggie:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons explained below, the Public Access\nBureau concludes that the City of Evanston (City) City Council (City Council) did not violate the\nrequirements of OMA in connection with a May 20, 2019, community meeting concerning the\nRobert Crown Community Center (Community Center).\nOn May 21, 2019,-submitted aRequest forReview alleging that the\nCity Council cancelled its regularly scheduled meeting' to hold a special public meeting on May\n20, 20 I 9, to \"respond to the residents' request for transparency and disclosure to know how the\nRequest for Review does not include the date of the allegedly cancelled City Council\nmeeting, and it appears from a review of the City Council's website that the City Council held its regularly\nscheduled meetings during the months of April and May. See https://www.cityofevanston.org/govemment/agendas­\nminutes/city-council-agendas-and-minutes (last visited September 12, 2019).\n1\n�\n\n500 South Second Street, Springfield. Illinois 62701 • (217) 782-1090 • 1TY: (877) 844-5461 • Fax: (217) 782-7046\nJOO West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n60 I South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fMs. Alexandra B. Ruggie\nOctober 2, 2019\nPage 2\n\nCity of Evanston plans to finance the [Community Center][.]\" 2 -Request for Review\nalleged that a majority ofa quorum of the members of the City Council attended this p�\nmeeting3 and discussed public business without providing an agenda for the meeting. also asserted that at this meeting, the City manager prohibited members ofthe public from\naddressing the City Council because they had not submitted their written comments on index\ncards prior to the meeting, which she contended was not in accordance with the City Council's\nestablished and recorded public comment rules.\nOn May 31, 2019, this office sent a copy ofthe Request for Review to the City\nCouncil and asked-it to provide a written response to the allegation that the City Council\nmembers' attendance and participation in the public meeting constituted a City Council meeting.\nOn June 6, 2019, the City provided a written response along with a link to the City's YouTube\nchannel that contained a video ofthe�0l 9, event.4 On June 7, 2019, this office\nforwarded a copy of that response to- On June 10, 2019, she submitted a reply that\nincluded links to what appear to be an individual's social media account that also contain\nportions ofthe meeting at issue. 5\nDETERMINATION\nThe requirements of OMA apply to each \"meeting\" ofa public body. 5 ILCS\n120/1 (West 2018). Section 1.02 ofOMA (5 ILCS 120/1.02 (West 2018)) defines \"meeting\" as:\n[A]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means ofcontemporaneous interactive communication, of\n\nE-mail from -to AG Public Access [O]ffice (May 21, 2019),\n\n2\n3\n\nSneha Dey, Expressing frustration, residents disrupt playing of video at Robert Crown\n\ncommunity meeting, THE DAILY NORTHWESTERN, (May 21, 2019),\nh ttps ://dai I yno rth western,com/2 0 1 9/05 /21 /city/expressing-frustration-residents-disrupt-p laying-of-video-at-robert-\n\ncrown-community-meeting\n\n'City of Evanston, Robert Crown Center Community Meeting 5-20-2019, YoUTuBE (May 21,\n2019), https ://www ,youtube,com/watch?v-wcE83bSyfDM&t-35 58s.\n'Mary O'Rourke Rosinski, FACEBOOK, (May 20, 2019)\nhttps://www, facebook,com/maryrosinski/videos/10 l 57162245079076/;\nhttps://www. facebook,com/maryrosinski/videos/ 10 l 57162212134076/;\nhttps://www,facebook,com/maryrosinski/videos/10157162364819076/\n\n\fMs. Alexandra B. Ruggie\nOctober 2, 2019\nPage 3\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.]\nThe Office of the Attorney General has stated that \"whether a gathering falls\nwithin the definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 126. \"In theory, there\nis no absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application or' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" among themselves. Ill. Att'y\nGen. Op. No. 95-004, issued July 14, 1995, at I 0-11. In that opinion the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during that particular presentation did trigger the\nrequirements of OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11; see also\nNabhani v. Coglianese, 552 F. Supp. 657, 661 (N.0. Ill. 1982) (a gathering does not constitute a\nmeeting for purposes of OMA when there is \"no examining or weighing of reasons for or against\na course of action, no exchange of facts preliminary to a decision, [and] no attempt to reach\naccord on a specific matter of public business.\").\nThe City Council is comprised of a mayor and nine aldermen.6 Here, it is\nundisputed that the City Council did not post an agenda or otherwise follow the requirements of\nOMA for the May 20, 2019, community meeting and that a majority of a quorum of aldermen,\nfive, gathered at the event. Therefore, to determine whether this event constituted a meeting of\nthe City Council that was held in violation of OMA the question is whether five members of the\nCity Council engaged in deliberative discussion of public business during the May 20, 2019,\ncommunity meeting.\nAccording to the background information provided by the parties, the Community\nCenter is a City project to build a new facility that includes a new ice rink and library branch.\nThe City's response to this office indicated that the project was organized by the City Manager's\noffice and was approved by the City Council on October 17,2011. 7 According to several news\nreports, some members of the public began voicing concerns about the cost of the project, many\nof whom spoke during the public comment periods of City Council meetings to share their\n\n'City of Evanston, City Council, https://www.cityofevanston.org/govemment/city-council\n7City of Evanston, Crown Center Project, hnps://www.cityofevanston.org/residents/robert-crown­\n\ncommunity-center-ice-complex-and-library.\n\n\fMs. Alexandra B. Ruggie\nOctober 2, 2019\nPage 4\nthoughts on this subject matter. 8\nThe City's response stated that the May 20, 2019, meeting at issue was the fifth\ncommunity meeting of its type in which the City Manager, Mr. Wally Bobkiewicz, provided an\nupdate on the project, with the focus of this meeting being on the costs and financing of the\nCommunity Center. The City contended that the event did not constitute a City Council meeting\nbecause the aldermen in attendance were not there in their official capacity, but instead, attended\nas interested residents of the City. The response further asserted:\nThe City Council members did not address the members\nassembled, sit on a panel discussion, or take comments from the\npersons present. Rather, the aldermen sat in the audience to listen\nto speakers and watch the video presented by the City.19 1\nMoreover, the City asserted that the aldermen did not \"deliberate on any issues or take any\nactions before the City Council or its committees.\" 10 The City's response also asserted that Mr.\nBobkiewicz led the community meeting-not the City Council-and only when the prepared\nvideo experienced playback issues did one City Council memoer, Alderman Peter Braithwaite,\nassist Mr. Bobkiewicz with answering written audience questions.\nIn her reply to the City's response, -maintained that the May 20, 2019,\nevent amounted to a City Council meeting becaus�men [were] i� and the\n10+ city staff were all present to attend this meeting of City Business.\" 11 - reply also\ndisputed the City's account that the aldermen did not engage in any discussion or deliberation\n8Sneha Dey, High costs, 'privatized interests' ofNorthwestern in Robert Crown Center push\n\nEvanston_ residents to voice concerns THE DAILY NORTHWESTERN, (February 14, 2019),\nh ttps ://dai I ynorthwes tern .com/20 I 9/02/ l 4/city/high-costs-privati zed-interests-of-northwestern-in-ro bert-crowncenter-pu sh-evan ston-residents-to-voice-concerns/; Sneha Dey, Residents concerned over increased cost ofRobert\nCrown Community Center, even after construction has begun (February 28, 2019),\nhttps ://dai I ynorthwestern.com/20 I 9/02/28/city/residents-concerned-over-increased-cost-of-robert-crown­\nco mm unity-center-even-after-construction-has-be gun/.\n\n'Letter from Alexandra B. Ruggie, Assistant City Attorney, City of Evanston to Shannon Barnaby,\nAssistant Attorney General, [Public Access Bureau], Office of the Illinois Attorney General (June 6, 2019), at 2.\n10Letter from Alexandra B. Ruggie, Assistant City Attorney, City of Evanston to Shannon\n\nBarnaby, Assistant Attorney General, [Public Access Bureau], Office of the Illinois Attorney General (June 6,\n2019), at 4.\n11\n\n(June 10, 2019).\n\nE-mail fro� to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\n\ff\\lls. Alexandra B. Ruggie\nOctober 2, 2019\nPage 5\n\nconcerning the Community Center, stating: \"[n]one of them just happened to be there in some\nperipheral way. The aldermen interacted with each other discussing the City business matter at\nhand.\" 12 --eply emphasized that members of the public were frustrated by the format\nedure that was different from the format used at\nof the me� the public com\nCity Council meetings. Specifically, . stated: \"(t]here was much expressed anger and\ndialogues with the aldermen present aroun e lack of transparency and the feeling of complete\ndisrespect of the residents who had come out that evening and who had concerns.\" 13\nThis office has reviewed the video footage of the May 20, 2019, event provided\nby both the City and- The meeting consisted of opening remarks by the City Manager,\nthe presentation of a video concerning the Community Center project, followed by a question\nand answer session. As mentioned by the City in its response to this office, the viewing of the\nvideo was temporarily interrupted by what appeared to be a malfunction in the audio of the video\nrecording, at which point Alderman Braithwaite assisted Mr. Bobkiewicz with the reading of\naudience members' written questions. After the remainder of the video was presented, a second\nquestion and answer session occurred, following the same format. The submitted questions were\nanswered by Mr. Bobkiewicz, Alderman Braithwaite, and other City staff members in\nattendance, such as the Deputy City Manager, the City Engineer, and the City's Library Director.\nHowever, the recordings do not reflect that any other City Council members spoke during the\npresentation or the question and answer sessions.\nIn her reply,�lleges that the video footage available on the City's\nYouTube channel has been edited and that it \"misrepresents the entirety of the meeting and\nmostly shows the 90\noregraphed and edited video.\"14 Nonetheless, while the video\nfootage provided by . does show that the individuals who were recorded appear to be\nextremely frustrated, 1t oes not appear to show any other members of the City Council speaking,\nproviding comments, or otherwise discussing public business.\nTherefore, the available information does not include facts from which this office\ncan conclude that May 20,2019, community meeting was a meeting of the City Council subject\nto the requirements of OMA. The fact that the City Manager and more than ten City employees\nwere present and discussing public business is not relevant to an analysis of whether this event\n12\n\nE-mail fro�to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\n13\n\nE-mail from- to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\n14\n\nE-mail from - to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\n(June 10,2019).\n(June 10, 2019).\n(June 10, 2019).\n\n\fMs. Alexandra B. Ruggie\nOctober 2, 2019\nPage 6\nconstituted a \"meeting\" ofthe City Council under OMA because they are not members of that\npublic body. Likewise, the fact that a majority ofa quorum ofCity Council members attended\nthe community meeting did not transform that event into a City Council meeting. Only one\nmember ofthe City Council publicly spoke at the event and there is no information indicating\nthat at any time during this meeting five or more members ofthe City Council engaged in\ndeliberation or discussion ofpublic business. Accordingly, this office concludes that the City\nCouncil did not violate OMA in connection with the May 20, 2019, community meeting.\nTo the extent that - Request for Review alleged that the City Council\nviolated the first amendment righ�ees at the May 20, 2019, community meeting, those\nallegations are not subject to review by this office, as the Public Access Counselor's authority to\nresolve disputes is limited to alleged violations ofOMA and the Freedom of Information Act\n(FOIA) (5 ILCS 140/1 et seq. (West 2018)). See 15 ILCS 205/7(c)(3) (West 2018).\nThe Public Access Counselor has determined that resolution ofthis matter does\nnot require the issuance of a binding opinion. Ifyou have any questions, you may contact me at\nthe Chicago address on the first page ofthis letter. This letter serves to close this file.\nVery truly yours,\n\n58228 o no vio mun\n\nAssistant Attorney General\nPublic Access Bureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A community meeting attended by a council member","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58228/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATIORNEY GENERAL\n\nOctober 2, 2019\n\nVia electronic mail\nMs. Alexandra B. Ruggie\nAssistant City Attorney\nCity of Evanston\n2100Ridge Avenue\nEvanston, Illinois 60201\naruggie@cityofevanston.org\nRE:\n\nOMARequest forReview -2019 PAC 58228\n\nDea�and Ms.Ruggie:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons explained below, the Public Access\nBureau concludes that the City of Evanston (City) City Council (City Council) did not violate the\nrequirements of OMA in connection with a May 20, 2019, community meeting concerning the\nRobert Crown Community Center (Community Center).\nOn May 21, 2019,-submitted aRequest forReview alleging that the\nCity Council cancelled its regularly scheduled meeting' to hold a special public meeting on May\n20, 20 I 9, to \"respond to the residents' request for transparency and disclosure to know how the\nRequest for Review does not include the date of the allegedly cancelled City Council\nmeeting, and it appears from a review of the City Council's website that the City Council held its regularly\nscheduled meetings during the months of April and May. See https://www.cityofevanston.org/govemment/agendas­\nminutes/city-council-agendas-and-minutes (last visited September 12, 2019).\n1\n�\n\nCity of Evanston plans to finance the [Community Center][.]\" 2 -Request for Review\nalleged that a majority ofa quorum of the members of the City Council attended this p�\nmeeting3 and discussed public business without providing an agenda for the meeting. also asserted that at this meeting, the City manager prohibited members ofthe public from\naddressing the City Council because they had not submitted their written comments on index\ncards prior to the meeting, which she contended was not in accordance with the City Council's\nestablished and recorded public comment rules.\nOn May 31, 2019, this office sent a copy ofthe Request for Review to the City\nCouncil and asked-it to provide a written response to the allegation that the City Council\nmembers' attendance and participation in the public meeting constituted a City Council meeting.\nOn June 6, 2019, the City provided a written response along with a link to the City's YouTube\nchannel that contained a video ofthe�0l 9, event.4 On June 7, 2019, this office\nforwarded a copy of that response to- On June 10, 2019, she submitted a reply that\nincluded links to what appear to be an individual's social media account that also contain\nportions ofthe meeting at issue. 5\nDETERMINATION\nThe requirements of OMA apply to each \"meeting\" ofa public body. 5 ILCS\n120/1 (West 2018). Section 1.02 ofOMA (5 ILCS 120/1.02 (West 2018)) defines \"meeting\" as:\n[A]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means ofcontemporaneous interactive communication, of\n\nE-mail from -to AG Public Access [O]ffice (May 21, 2019),\n\n2\n3\n\nSneha Dey, Expressing frustration, residents disrupt playing of video at Robert Crown\n\ncommunity meeting, THE DAILY NORTHWESTERN, (May 21, 2019),\nh ttps://dai I yno rth western,com/2 0 1 9/05 /21 /city/expressing-frustration-residents-disrupt-p laying-of-video-at-robert-\n\ncrown-community-meeting\n\n'City of Evanston, Robert Crown Center Community Meeting 5-20-2019, YoUTuBE (May 21,\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.]\nThe Office of the Attorney General has stated that \"whether a gathering falls\nwithin the definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 126. \"In theory, there\nis no absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application or' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" among themselves. Ill. Att'y\nGen. Op. No. 95-004, issued July 14, 1995, at I 0-11. In that opinion the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during that particular presentation did trigger the\nrequirements of OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11; see also\nNabhani v. Coglianese, 552 F. Supp. 657, 661 (N.0. Ill. 1982) (a gathering does not constitute a\nmeeting for purposes of OMA when there is \"no examining or weighing of reasons for or against\na course of action, no exchange of facts preliminary to a decision, [and] no attempt to reach\naccord on a specific matter of public business.\").\nThe City Council is comprised of a mayor and nine aldermen.6 Here, it is\nundisputed that the City Council did not post an agenda or otherwise follow the requirements of\nOMA for the May 20, 2019, community meeting and that a majority of a quorum of aldermen,\nfive, gathered at the event. Therefore, to determine whether this event constituted a meeting of\nthe City Council that was held in violation of OMA the question is whether five members of the\nCity Council engaged in deliberative discussion of public business during the May 20, 2019,\ncommunity meeting.\nAccording to the background information provided by the parties, the Community\nCenter is a City project to build a new facility that includes a new ice rink and library branch.\nThe City's response to this office indicated that the project was organized by the City Manager's\noffice and was approved by the City Council on October 17,2011. 7 According to several news\nreports, some members of the public began voicing concerns about the cost of the project, many\nof whom spoke during the public comment periods of City Council meetings to share their\n\n'City of Evanston, City Council, https://www.cityofevanston.org/govemment/city-council\n7 City of Evanston, Crown Center Project, hnps://www.cityofevanston.org/residents/robert-crown­\n\nthoughts on this subject matter. 8\nThe City's response stated that the May 20, 2019, meeting at issue was the fifth\ncommunity meeting of its type in which the City Manager, Mr. Wally Bobkiewicz, provided an\nupdate on the project, with the focus of this meeting being on the costs and financing of the\nCommunity Center. The City contended that the event did not constitute a City Council meeting\nbecause the aldermen in attendance were not there in their official capacity, but instead, attended\nas interested residents of the City. The response further asserted:\nThe City Council members did not address the members\nassembled, sit on a panel discussion, or take comments from the\npersons present. Rather, the aldermen sat in the audience to listen\nto speakers and watch the video presented by the City.19 1\nMoreover, the City asserted that the aldermen did not \"deliberate on any issues or take any\nactions before the City Council or its committees.\" 10 The City's response also asserted that Mr.\nBobkiewicz led the community meeting-not the City Council-and only when the prepared\nvideo experienced playback issues did one City Council memoer, Alderman Peter Braithwaite,\nassist Mr. Bobkiewicz with answering written audience questions.\nIn her reply to the City's response, -maintained that the May 20, 2019,\nevent amounted to a City Council meeting becaus�men [were] i� and the\n10+ city staff were all present to attend this meeting of City Business.\" 11 - reply also\ndisputed the City's account that the aldermen did not engage in any discussion or deliberation\n8 Sneha Dey, High costs, 'privatized interests' ofNorthwestern in Robert Crown Center push\n\nEvanston_ residents to voice concerns THE DAILY NORTHWESTERN, (February 14, 2019),\nh ttps://dai I ynorthwes tern.com/20 I 9/02/ l 4/city/high-costs-privati zed-interests-of-northwestern-in-ro bert-crowncenter-pu sh-evan ston-residents-to-voice-concerns/; Sneha Dey, Residents concerned over increased cost ofRobert\nCrown Community Center, even after construction has begun (February 28, 2019),\nhttps://dai I ynorthwestern.com/20 I 9/02/28/city/residents-concerned-over-increased-cost-of-robert-crown­\nco mm unity-center-even-after-construction-has-be gun/.\n\n'Letter from Alexandra B. Ruggie, Assistant City Attorney, City of Evanston to Shannon Barnaby,\nAssistant Attorney General, [Public Access Bureau], Office of the Illinois Attorney General (June 6, 2019), at 2.\n10 Letter from Alexandra B. Ruggie, Assistant City Attorney, City of Evanston to Shannon\n\nBarnaby, Assistant Attorney General, [Public Access Bureau], Office of the Illinois Attorney General (June 6,\n\nconcerning the Community Center, stating: \"[n]one of them just happened to be there in some\nperipheral way. The aldermen interacted with each other discussing the City business matter at\nhand.\" 12 --eply emphasized that members of the public were frustrated by the format\nedure that was different from the format used at\nof the me� the public com\nCity Council meetings. Specifically,. stated: \"(t]here was much expressed anger and\ndialogues with the aldermen present aroun e lack of transparency and the feeling of complete\ndisrespect of the residents who had come out that evening and who had concerns.\" 13\nThis office has reviewed the video footage of the May 20, 2019, event provided\nby both the City and- The meeting consisted of opening remarks by the City Manager,\nthe presentation of a video concerning the Community Center project, followed by a question\nand answer session. As mentioned by the City in its response to this office, the viewing of the\nvideo was temporarily interrupted by what appeared to be a malfunction in the audio of the video\nrecording, at which point Alderman Braithwaite assisted Mr. Bobkiewicz with the reading of\naudience members' written questions. After the remainder of the video was presented, a second\nquestion and answer session occurred, following the same format. The submitted questions were\nanswered by Mr. Bobkiewicz, Alderman Braithwaite, and other City staff members in\nattendance, such as the Deputy City Manager, the City Engineer, and the City's Library Director.\nHowever, the recordings do not reflect that any other City Council members spoke during the\npresentation or the question and answer sessions.\nIn her reply,�lleges that the video footage available on the City's\nYouTube channel has been edited and that it \"misrepresents the entirety of the meeting and\nmostly shows the 90\noregraphed and edited video.\"14 Nonetheless, while the video\nfootage provided by. does show that the individuals who were recorded appear to be\nextremely frustrated, 1t oes not appear to show any other members of the City Council speaking,\nproviding comments, or otherwise discussing public business.\nTherefore, the available information does not include facts from which this office\ncan conclude that May 20,2019, community meeting was a meeting of the City Council subject\nto the requirements of OMA. The fact that the City Manager and more than ten City employees\nwere present and discussing public business is not relevant to an analysis of whether this event\n12\n\nE-mail fro�to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\n13\n\nE-mail from- to Shannon Barnaby, Assistant Attorney General, Public Access Bureau\n\nconstituted a \"meeting\" ofthe City Council under OMA because they are not members of that\npublic body. Likewise, the fact that a majority ofa quorum ofCity Council members attended\nthe community meeting did not transform that event into a City Council meeting. Only one\nmember ofthe City Council publicly spoke at the event and there is no information indicating\nthat at any time during this meeting five or more members ofthe City Council engaged in\ndeliberation or discussion ofpublic business. Accordingly, this office concludes that the City\nCouncil did not violate OMA in connection with the May 20, 2019, community meeting.\nTo the extent that - Request for Review alleged that the City Council\nviolated the first amendment righ�ees at the May 20, 2019, community meeting, those\nallegations are not subject to review by this office, as the Public Access Counselor's authority to\nresolve disputes is limited to alleged violations ofOMA and the Freedom of Information Act\n(FOIA) (5 ILCS 140/1 et seq. (West 2018)). See 15 ILCS 205/7(c)(3) (West 2018).\nThe Public Access Counselor has determined that resolution ofthis matter does\nnot require the issuance of a binding opinion. Ifyou have any questions, you may contact me at\nthe Chicago address on the first page ofthis letter. This letter serves to close this file.\nVery truly yours,\n\n58228 o no vio mun\n\nAssistant Attorney General\nPublic Access Bureau"}
{"id":1300,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-08-06","case_number":null,"request_numbers":["58250"],"title":"Village of Dwight Plan Commission did not violate OMA by unapproved minutes when no subsequent meeting occurred","filename":"58250, issued August 6, 2019.pdf","rel_path":null,"word_count":942,"summary":"A requester alleged that the Village of Dwight Plan Commission violated the Open Meetings Act by failing to approve meeting minutes within the statutory timeframe. The PAC determined that because the Commission had not held a meeting since the date in question, the statutory deadline for approval had not yet been triggered.","plain_summary":"A citizen complained that a local government board failed to approve its meeting minutes on time. The Attorney General's office found that the board didn't break the law because they hadn't held any meetings since that date, so the legal clock for approving those minutes hadn't started yet. The case is now closed with no further action required.","holding":"The PAC concluded that the Village did not violate the Open Meetings Act because the Commission had not convened a meeting since the date of the minutes in question, meaning the approval deadline had not yet passed.","legal_question":"Whether a public body violates section 2.06(b) of the Open Meetings Act by failing to approve minutes when no subsequent meetings have been held to trigger the statutory deadline.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Dwight Plan Commission","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The timely approval of meeting minutes by a public body under the Open Meetings Act.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_b/58250, issued August 6, 2019.pdf","sha256":"f79923df3916b6c9243f831a96d0f10b1f6190b73d149baf0141b649609bd430","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","Open Meetings Act","approval deadline","public body"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"OFFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 6, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Jill V. Haacke\nVillage Clerk\nVillage of Dwight\n209 South Prairie Avenue\n\nDwight, Illinois 60420\n\nvillageclerk@dwightillinois. com\nRE: OMA Request for Review— 2019 PAC 58250\nDear\n\nand Clerk Haacke:\nThis determination\n\nis issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) ( 5 IL'CS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\nBureau is' unable to conclude that the Village of Dwight' s ( Village) Plan Commission\n\nCommission) violated the requirements of OMA with respect to the approval of its February 19,\n2019, meeting minutes.\n\nOn May 23, 2019,\n\nsubmitted Request for Review alleging that\n\nthe Commission violated the requirements of OMA by failing to approve the minutes of its\n\nFebruary 19, 2019, regular meeting within 30 days or by its second subsequent regular meeting.\nOn May 31, 2019, this office sent a copy of the Request for Review to the Commission and\nrequested that the Commission or its representative provide a written response to the allegations,\n\ntogether with various meeting records for this office' s confidential review. On June 6, 2019, the\nVillage provided an answer and the requested materials.\nreplied on June 25, 2019.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph\n601 South\n\nStreet, Chicago,\n\nUniversity Ave., Carbondale,\n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\nIllinois 62901 • (\n\n\fThe Honorable Jill V. Haacke\nAugust 6, 2019\nPage 2\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nSection 2. 06( b) of OMA ( 5 ILCS 120/ 2. 06( b) ( West 2018)) provides, in pertinent\n\npart, that \"[ a] public body shall approve the minutes of its open meeting within 30 days after that\nmeeting\n\nor at\n\nthe public\n\nbody' s second subsequent\n\nregular\n\nmeeting,\n\nwhichever\n\nis later[ ]\"\n\nand that\n\nt] he minutes of meetings open to the public shall be available for public inspection within 10\n\ndays after the approval of such minutes by the public body.\"\n\nVillage Clerk Jill Haacke responded on behalf of the Commission, confirming\nthat the February 19, 2019, meeting minutes had not yet been approved because the Commission\n\nhad not met since the date in question. Clerk Haacke also provided copies of meeting\ncancellation notices for the Commission' s previously posted March 19, April 16, May 21, and\nJune 18 meeting dates. In his reply,\ncontended that the Commission should have\napproved the minutes in question by its second subsequent meeting date of April 16, 2019,\nregardless of whether a meeting was actually held.\nalso newly alleged that the\n\nCommission failed to provide 10 days' notice of the meeting cancellations under section 2. 03 of\nOMA ( 5 ILCS 120/ 2. 03 ( West 2018)).'\n\nAs an initial matter, the Public Access Bureau has consistently determined that\nthe language \" regular meeting dates\" in section 2. 03 of OMA means that a public body must\nprovide 10 days' notice for changing its regular meeting dates going forward, such as from the\nfirst Monday of each month to the first Tuesday of the month. See, for example, III. Att' y Gen.\nPAC Req. Rev. Ltr. 37690, issued April 20, 2017, at 3. OMA does not set forth any procedural\nrequirements for a public body to cancel a single meeting.\n\nSection 2. 03 of OMA provides, in relevant part:\n\nIn addition to the notice required by Section 2. 02, each body subject to\nthis Act must, at the beginning of each calendar or fiscal year, prepare and make\navailable a schedule of all its regular meetings for such calendar or fiscal year,\nlisting the times and places of such meetings.\n\nIf a change is made in regular meeting dates, at least 10 days' notice of\nsuch change shall be given by publication in a newspaper of general circulation\nin the area in which such body functions. ( Emphasis added.)\n\n\fThe Honorable Jill V. Haacke\nAugust 6, 2019\nPage 3\n\nWith respect to the approval of meeting minutes, the plain language of section\n2. 06( b) of OMA requires a public body to approve the minutes of its open meeting within 30\ndays after that meeting or at the public body' s second subsequent regular meeting,\nwhichever is later. OMA does not require the approval of meeting minutes by the scheduled\ndate of a second subsequent meeting that has been cancelled. Because the Commission has not\nconvened since its February 19, 2019, meeting, it is not yet required to approve the minutes from\nthat meeting. Accordingly, this office is unable to conclude that the Commission violated the\nrequirements of section 2. 06( b) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 785- 7438 or cboggs@atg. state. il.us. This letter serves to close this file.\nVery truly yours,\n\nCHRIST()\n\nR R. BOGGS\n\nSupervising Attorney\nPublic Access Bureau\n58250\n\no\n\n206 minutes\n\nproper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Approval of meeting minutes by a plan commission","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58250/","full_text":"OFFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 6, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Jill V. Haacke\nVillage Clerk\nVillage of Dwight\n209 South Prairie Avenue\n\nDwight, Illinois 60420\n\nvillageclerk@dwightillinois. com\nRE: OMA Request for Review— 2019 PAC 58250\nDear\n\nand Clerk Haacke:\nThis determination\n\nis issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) (5 IL'CS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\nBureau is' unable to conclude that the Village of Dwight's (Village) Plan Commission\n\nCommission) violated the requirements of OMA with respect to the approval of its February 19,\n2019, meeting minutes.\n\nOn May 23, 2019,\n\nsubmitted Request for Review alleging that\n\nthe Commission violated the requirements of OMA by failing to approve the minutes of its\n\nFebruary 19, 2019, regular meeting within 30 days or by its second subsequent regular meeting.\nOn May 31, 2019, this office sent a copy of the Request for Review to the Commission and\nrequested that the Commission or its representative provide a written response to the allegations,\n\ntogether with various meeting records for this office's confidential review. On June 6, 2019, the\nVillage provided an answer and the requested materials.\nreplied on June 25, 2019.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\n\nSection 2. 06(b) of OMA (5 ILCS 120/ 2. 06(b) (West 2018)) provides, in pertinent\n\npart, that \"[ a] public body shall approve the minutes of its open meeting within 30 days after that\nmeeting\n\nor at\n\nthe public\n\nbody's second subsequent\n\nregular\n\nmeeting,\n\nwhichever\n\nis later[ ]\"\n\nand that\n\nt] he minutes of meetings open to the public shall be available for public inspection within 10\n\ndays after the approval of such minutes by the public body.\"\n\nVillage Clerk Jill Haacke responded on behalf of the Commission, confirming\nthat the February 19, 2019, meeting minutes had not yet been approved because the Commission\n\nhad not met since the date in question. Clerk Haacke also provided copies of meeting\ncancellation notices for the Commission's previously posted March 19, April 16, May 21, and\nJune 18 meeting dates. In his reply,\ncontended that the Commission should have\napproved the minutes in question by its second subsequent meeting date of April 16, 2019,\nregardless of whether a meeting was actually held.\nalso newly alleged that the\n\nCommission failed to provide 10 days' notice of the meeting cancellations under section 2. 03 of\nOMA (5 ILCS 120/ 2. 03 (West 2018)).'\n\nAs an initial matter, the Public Access Bureau has consistently determined that\nthe language \" regular meeting dates\" in section 2. 03 of OMA means that a public body must\nprovide 10 days' notice for changing its regular meeting dates going forward, such as from the\nfirst Monday of each month to the first Tuesday of the month. See, for example, III. Att' y Gen.\nPAC Req. Rev. Ltr. 37690, issued April 20, 2017, at 3. OMA does not set forth any procedural\nrequirements for a public body to cancel a single meeting.\n\nSection 2. 03 of OMA provides, in relevant part:\n\nIn addition to the notice required by Section 2. 02, each body subject to\nthis Act must, at the beginning of each calendar or fiscal year, prepare and make\n\nWith respect to the approval of meeting minutes, the plain language of section\n2. 06(b) of OMA requires a public body to approve the minutes of its open meeting within 30\ndays after that meeting or at the public body's second subsequent regular meeting,\nwhichever is later. OMA does not require the approval of meeting minutes by the scheduled\ndate of a second subsequent meeting that has been cancelled. Because the Commission has not\nconvened since its February 19, 2019, meeting, it is not yet required to approve the minutes from\nthat meeting. Accordingly, this office is unable to conclude that the Commission violated the\nrequirements of section 2. 06(b) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 785- 7438 or cboggs@atg. state. il.us. This letter serves to close this file.\nVery truly yours,\n\nCHRIST()\n\nR R. BOGGS\n\nSupervising Attorney\nPublic Access Bureau\n58250\n\no\n\n206 minutes\n\nproper\n\nmun"}
{"id":1301,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-06-10","case_number":null,"request_numbers":["58320"],"title":"DuPage Township Board of Trustees did not violate OMA when one trustee temporarily left during public comment","filename":"58320, issued June 10, 2019.pdf","rel_path":null,"word_count":892,"summary":"A DuPage Township Trustee alleged that a fellow board member violated the Open Meetings Act by leaving the room during public comment to avoid constituents, but the PAC determined the allegations did not state a violation of the Act.","plain_summary":"This determination letter addresses whether a township board violated OMA section 2.06(g), which guarantees the public an opportunity to address public officials under a body's established rules. The Public Access Bureau held that no violation occurred and that no further action was warranted, because the request for review only alleged that one trustee briefly left the room during public comment, not that any member of the public was prevented from addressing the board as a whole. The Bureau reasoned that section 2.06(g) protects the right to address the public body as a whole under its recorded rules, and cannot be read to compel the physical presence of an individual official during public comment merely because a speaker wishes to address that official specifically. The public body reviewed was the DuPage Township Board of Trustees, in connection with public comment at a board meeting.","holding":"Section 2.06(g) of OMA guarantees the public an opportunity to address a public body as a whole under its established rules, but does not require the physical presence of an individual public official during public comment, so a single trustee's absence from part of a meeting is insufficient to establish a violation.","legal_question":"Does a single board member's temporary departure from a meeting during public comment to avoid specific constituents constitute a violation of the Open Meetings Act's public comment requirements?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"DuPage Township Board of Trustees","requesting_party":"Alyssia Benford","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint alleged that a board member's departure during public comment violated the public's right to address officials.","ocr_status":"ok","ocr_quality":97.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/58320, issued June 10, 2019.pdf","sha256":"3bf87e08f2f684211935897e88c357a6de83d78e319d3f19ab3f1c2cb740f37c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting conduct","board member behavior","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nJune 10, 2019\n\nVia electronic mail\nThe Honorable Alyssia Benford\n\nDuPage Township Trustee\nabenford@dupagetownship. com\n\nRE: OMA Request for Review —2019 PAC 58320\nDear Ms. Benford:\n\nThis determination letter is issued pursuant to section 3. 5( b) of the Open Meetings\nAct ( OMA) ( 5 ILCS 120/ 3. 5( b) ( West 2016)).\n\nFor the reasons set forth below, the Public\n\nAccess Bureau concludes that no further action in this matter is warranted.\n\nIn your Request for Review, submitted May 29, 2019, you stated that Trustee\nMaripat Oliver attended the May 21, 2019, meeting of the DuPage Township Board of Trustees\nBoard) but that she \" willful[ ly] depart[ ed] the meeting temporarily to prevent the public from\n\naddressing her during the public comments. i' Your Request for Review alleges that Trustee\nOliver' s deliberate departure from the meeting room during the public comment period violated\nsection 2. 06( g) of OMA ( 5 ILCS 120/ 2. 06( g) ( West 2016)), because several residents who\nwished to address Trustee Oliver specifically during their public comments were not able to do\nso.\n\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2016)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.]\nThe request for review * * *\nmust include a summary of the facts supporting the\nallegation.\" (\n\nEmphasis added.)\n\nSection 2. 06( g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\n\nA public\n\nbody violates section 2. 06( g) of OMA when it: ( 1)\n\nprohibits a member of the\n\nOMA Request for Review from Alyssia Benford, DuPage Township Trustee ( May 29, 2019).\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n601 South University Ave., Carbondale,\n\n\fhe Honorable Alyssia Benford\nJune 10, 2019\nPage 2.\n\npublic from addressing its members in a manner inconsistent with its established and recorded\nrules, or ( 2) prohibits a member of the public from providing public comment pursuant to its\nestablished and recorded rules, but those rules unreasonably restrict that person' s right to address\n\npublic officials. Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\nThe requirements of OMA apply to \" public bodies\" as defined in section 2( a) of\nOMA ( 5 ILCS 120/ 2( a) ( West 2016)). Thus, although the meaning of \"public officials\" in\nsection 2. 06 of OMA is not specifically defined, the intention of that section appears to be to\nallow the public to address the pubic body as a whole while it is gathered in open session, subject\nto reasonable rules. Your Request for Review does not allege that individuals were precluded\n\nfrom \" address[ ing] public officials\" at the May 21, 2019, meeting, only that Trustee Oliver was\nnot present. In this instance, the absence of one trustee during public comment2 is insufficient to\nconclude that the Board violated section 2. 06( g) of OMA. Although the Public Access Bureau\n\nhas previously concluded that a public body violates section 2. 06( g) when it prohibits a speaker\nfrom directing his or her comments to an individual member of the public body ( I11. Att' y Gen.\nPAC Req. Rev. Ltr. 50824, issued July 10, 2018), that matter concerned the public body' s\nattempt to regulate the content of public speech. Section 2. 06( g) cannot be read to compel the\nphysical presence of a public official at a specific meeting, or during the public comment portion\n\nof a meeting, because a member of the public wishes to direct his or her comments to that\nofficial.\n\nBecause your Request for Review did not allege that any member of the public\n\nwas improperly prohibited from addressing the Board as a whole, you have not provided facts\nsupporting the allegation that the Board violated section 2. 06( g) of OMA at its May 21, 2019,\nmeeting. Accordingly, this office will take no further action in this matter. If you have any\nquestions, you may contact me at ( 312) 814- 6437 or the Chicago address listed on the first page\nof this letter.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n58320 o no fi war mun\n\n2This determination does not conclude that it is appropriate for an elected official to purposefully\n\nleave a meeting to avoid listening to public comment, only that the facts as alleged here are insufficient to support an\nallegation\n\nof\n\na violation\n\nof 2. 06( g)\n\nof\n\nOMA\n\nby the Board.\n\n\fThe Honorable Alyssia Benford\nJune 10, 2019\nPage 3\n\ncc:\n\nThe Honorable Felix George\n\nSupervisor, DuPage Township\n\n241 Canterbury Lane\nBolingbrook,\n\nIllinois 60440\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board member's departure during public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58320/","full_text":"OFFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nJune 10, 2019\n\nVia electronic mail\nThe Honorable Alyssia Benford\n\nDuPage Township Trustee\nabenford@dupagetownship. com\n\nRE: OMA Request for Review —2019 PAC 58320\nDear Ms. Benford:\n\nThis determination letter is issued pursuant to section 3. 5(b) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3. 5(b) (West 2016)).\n\nFor the reasons set forth below, the Public\n\nAccess Bureau concludes that no further action in this matter is warranted.\n\nIn your Request for Review, submitted May 29, 2019, you stated that Trustee\nMaripat Oliver attended the May 21, 2019, meeting of the DuPage Township Board of Trustees\nBoard) but that she \" willful[ ly] depart[ ed] the meeting temporarily to prevent the public from\n\naddressing her during the public comments. i' Your Request for Review alleges that Trustee\nOliver's deliberate departure from the meeting room during the public comment period violated\nsection 2. 06(g) of OMA (5 ILCS 120/ 2. 06(g) (West 2016)), because several residents who\nwished to address Trustee Oliver specifically during their public comments were not able to do\nso.\n\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2016)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.]\nThe request for review * * *\nmust include a summary of the facts supporting the\nallegation.\" (Emphasis added.)\n\nSection 2. 06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\n\nA public\n\nbody violates section 2. 06(g) of OMA when it: (1)\n\nprohibits a member of the\n\nOMA Request for Review from Alyssia Benford, DuPage Township Trustee (May 29, 2019).\n\n.\n\npublic from addressing its members in a manner inconsistent with its established and recorded\nrules, or (2) prohibits a member of the public from providing public comment pursuant to its\nestablished and recorded rules, but those rules unreasonably restrict that person's right to address\n\npublic officials. Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\nThe requirements of OMA apply to \" public bodies\" as defined in section 2(a) of\nOMA (5 ILCS 120/ 2(a) (West 2016)). Thus, although the meaning of \"public officials\" in\nsection 2. 06 of OMA is not specifically defined, the intention of that section appears to be to\nallow the public to address the pubic body as a whole while it is gathered in open session, subject\nto reasonable rules. Your Request for Review does not allege that individuals were precluded\n\nfrom \" address[ ing] public officials\" at the May 21, 2019, meeting, only that Trustee Oliver was\nnot present. In this instance, the absence of one trustee during public comment2 is insufficient to\nconclude that the Board violated section 2. 06(g) of OMA. Although the Public Access Bureau\n\nhas previously concluded that a public body violates section 2. 06(g) when it prohibits a speaker\nfrom directing his or her comments to an individual member of the public body (I11. Att' y Gen.\nPAC Req. Rev. Ltr. 50824, issued July 10, 2018), that matter concerned the public body's\nattempt to regulate the content of public speech. Section 2. 06(g) cannot be read to compel the\nphysical presence of a public official at a specific meeting, or during the public comment portion\n\nof a meeting, because a member of the public wishes to direct his or her comments to that\nofficial.\n\nBecause your Request for Review did not allege that any member of the public\n\nwas improperly prohibited from addressing the Board as a whole, you have not provided facts\nsupporting the allegation that the Board violated section 2. 06(g) of OMA at its May 21, 2019,\nmeeting. Accordingly, this office will take no further action in this matter. If you have any\nquestions, you may contact me at (312) 814- 6437 or the Chicago address listed on the first page\nof this letter.\n\nVery truly yours,\n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n58320 o no fi war mun\n\n2 This determination does not conclude that it is appropriate for an elected official to purposefully\n\nleave a meeting to avoid listening to public comment, only that the facts as alleged here are insufficient to support an\nallegation\n\nof\n\ncc:\n\nThe Honorable Felix George\n\nSupervisor, DuPage Township\n\n241 Canterbury Lane\nBolingbrook,\n\nIllinois 60440"}
{"id":1303,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-09-05","case_number":null,"request_numbers":["58390"],"title":"Rushville City Council violated OMA by private meeting during candidate site visit","filename":"58390, issued September 5, 2019__1.pdf","rel_path":null,"word_count":2040,"summary":"The PAC determined that the City of Rushville City Council and its Water Committee violated the Open Meetings Act by holding an unannounced, closed gathering of members to deliberate on public business during a candidate site visit. The PAC concluded that the body failed to provide notice, hold the meeting in a public place, keep minutes, or allow for public comment.","plain_summary":"A citizen complained that members of the Rushville City Council and Water Committee met privately during a job candidate's site visit without following public meeting rules. The Attorney General's office agreed, finding that the gathering constituted an improper meeting because it was held without public notice, minutes, or the opportunity for public comment. While no further action was required because no final votes were taken, the city was cautioned to follow OMA requirements in the future.","holding":"The City of Rushville City Council and Water Committee violated the Open Meetings Act by failing to provide notice, keep minutes, and allow public access to a gathering of members.","legal_question":"Whether a gathering of members of a public body to deliberate on public business during a candidate's site visit constitutes a meeting subject to the requirements of the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.01","5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Rushville City Council and Water Committee","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The gathering of public body members during a job candidate's site visit without complying with OMA transparency requirements.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/58390, issued September 5, 2019.pdf","sha256":"e43f354bd68426299dbb4cc43b1f3e7c8c1054e5e1254a09be7715e73698a21c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","public notice","meeting minutes","public comment","deliberation"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL.\n\nSeptember 5, 2019\n\nVia electronic mail\n\nMs. Stacey Briney\nCity Clerk\nCity of Rushville\n111\n\nEast Washington\n\nRushville, Illinois 62681\n\nRE: OMA Request for Review —2019 PAC 58390\n\nDear\n\nand Ms. Briney:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Rushville ( City) City Council ( Council) and the Council' s\n\nWater Committee ( Committee) violated the requirements of OMA in connection with a gathering\nof members of the Council and Committee at the City' s water facilities on May 31, 2019.\nBACKGROUND\n\nOn June 5, 2019, this office received a Request for Review from\n\nalleging that the Council and Committee met in violation of OMA on May 31, 2019.\nIn particular,\nstated that at the June 3, 2019, Council meeting, there was a\n\ndiscussion about members of the Committee attending a May 31, 2019, visit by Randy Dabney, a\ncandidate for the position of water superintendent, to the City' s water facilities. On July 15,\n2019, this office sent a copy of the Request for Review to the City and requested that the Council\nand the Committee or their representative provide a written response to the allegations in the\n\nRequest for Review. On July 29, 2019, the Public Access Bureau received the City' s written\nanswer. On July 30, 2019, this office forwarded a copy of the City's written response to\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601\n\nSouth\n\nUniversity Ave., Carbondale,\n\nIllinois\n\n62901 • (\n\n618) 529- 6400 • TTY: ( 877)\n\n675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMs. Stacey Briney\nSeptember 5, 2019\nPage 2\n\nshe replied on August 4, 2019. On August 22, 2019, this office requested that the City\nprovide additional information concerning the content of the discussion during the gathering with\nMr. Dabney at the water facilities. On August 27, 2019,\n\nprovided this office with\n\na copy of a recording of the June 3, 2019, meeting of the Council where the May 31, 2019,\ngathering was discussed. On August 28, 2019, the City provided a supplemental response.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 ( West 2018). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179111. App. 3d 161, 171 ( 5th Dist. 1989).\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2018)) provides that \"[ a] ll meetings\nof public bodies shall be open to the public unless excepted in subsection ( c) and closed in\naccordance with Section 2a.\" Section 1. 02 ( 5 ILCS 120/ 1. 02 ( West 2018)) defines a \" public\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means ( such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 -member\n\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business.\n\nIf a gathering of a majority of a quorum of public body members is determined to be a\nmeeting,\" then all the requirements of OMA apply, including proper posting of notice and an\nagenda ( 5 ILCS 120/ 2. 02 ( West 2018)), holding the meeting at a specified time and place that is\nconvenient\n\nand\n\nopen\n\nto the public ( 5 ILCS 120/ 2. 01 ( West 2018)),\n\nkeeping minutes, and\n\nallowing public comment ( 5 ILCS 120/ 2. 06( a), ( g) ( West 2018)).\nOMA \" is not intended to prohibit bona fide social gatherings of public officials,\nor truly political meetings at which party business is discussed.\n\nRather, the Act is designed to\n\nprohibit secret deliberation and action on business which properly should be discussed in a\npublic forum due to its potential impact on the public.\" People ex rel. Difanis v. Barr, 83 I11. 2d\n191,\n\n202 ( 1980);\n\nsee\n\nalso\n\nNabhani v. Coglianese,\n\n552 F.\n\nSupp. 657, 660- 61 ( N. D. Ill. 1982):\n\n\fMs. Stacey Briney\nSeptember 5, 2019\nPage 3\n\nA \"meeting\" under the Act, has been variously described as a\ngathering \" designed to discuss or reach an accord with regard to\npublic business,\"[ citation], or as \"' collective discussion... and\nexchange of facts\n\npreliminary to the ultimate decision.\"' [ Citation]\n\nThird New International Dictionary ( 1976) defines \" deliberate\" as\nfollows: \" to ponder or think about with measured careful\n\nconsideration and often with formal discussion before reaching a\ndecision or conclusion.\"\n\nIn her Request for Review,\n\nstated that the mayor acknowledged at a\n\nCouncil meeting that members of the Committee were present when Mr. Dabney visited the\nwater facilities. According to\nat the June 3, 2019, Council meeting, a member of\nthe Council alleged that the Committee and the Council had violated OMA by gathering with\nMr. Dabney. In its answer to this office, the City stated that three of the four members of the\n\nCommittee, who are also aldermen on the eight -member Council, were present along with the\nmayor at the City's water facilities on May 31, 2019. The City initially stated to this office that\nthe members and the mayor were gathered to get to know Mr. Dabney, who was inspecting the\nwater facilities because he was a candidate for the water superintendent position. The City\nasserted that no business was conducted and no actions were taken during the gathering. The\nCity further stated that \"[ a] II parties deny that there was a meeting to discuss City business, [ and\nthat the gathering was] merely to become acquainted with the applicant Dabney and review the.\nfacility.\"'\n\nIn her reply,\n\nstated that she disagreed with the City's answer. She\n\nalso provided a copy of the recording of the June 3, 2019, meeting that she had referred to in her\nRequest for Review, which this office reviewed. In the recording of the June 3, 2019, open\nmeeting, the mayor admitted that the May 31, 2019, gathering violated OMA but did not\n\nelaborate on the discussion between Mr. Dabney and the members of the Council and\nCommittee. In its supplemental response to this office, the City stated that the members present\nmet with Mr. Dabney \" and then went to each facility to discuss how the [ C] ity' s water plant\n\nworked.\" 2 Despite the City' s initial assertion that the gathering was to get merely to get\nacquainted with Mr. Dabney, in its supplemental response, the City described Mr. Dabney as\nthe new water operator\" and stated that \"[ ail the time of the meeting, the City Council had\nLetter from Stacey Briney, City Clerk, City of Rushville, to Assistant Attorney General Matt\nHartman, [ Public Access Bureau], [ Office of the Attorney General] ( Undated).\n\n2Letter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\n\nMatt Hartman ( August 28, 2019).\n\n\fMs. Stacey Briney\nSeptember 5, 2019\nPage 4\n\nalready approved\n\na contract\n\nwith\n\nMr. Dabney\n\nat a\n\ncost of One\n\nThousand Dollars ($ 1, 000) per\n\nmonth. i3 The 'City further stated that it has been making \" major improvements\" to its water\n\nsystem and that those improvements were \" touched on\" during the gathering with Mr. Dabney. 4\nThe Attorney General\n\nhas noted that \"[ d] eliberation ***\n\nconnotes\n\nnot only\n\ncollective discussion, but the collective acquisition and exchange of facts preliminary to the\nultimate decision.\"\n\nIll. Att' y Gen. Op. No. 5- 726, issued March 22, 1974, at 125 ( quoting\n\nSacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41,\n47- 48, 69 Cal. Rptr. 480, 485 ( Cal. Ct. App. 1968)).\n\nIn the same opinion, the Attorney General\n\nalso quoted Sacramento Newspaper Guild for the proposition that,\n\nt] here is rarely any purpose toa nonpublic pre -meeting conference\nexcept to conduct some part of the decisional process behind\n\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages, as well as the ultimate step of official action, can\nan open meeting regulation frustrate these evasive devices.\n\nEmphasis added.) I11. Att' y Gen. Op. No. S- 726, at 125 ( quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50, 69 Cal.\nRptr. at 487).\n\nAlthough the City' s responses to this office about the content of the discussions\n\nthat took place during the gathering lacked detail, it is undisputed that a majority of a quorum of\nthe members of the Council and Committee were present and that issues concerning the\nimprovements to the water system were \" touched on\" during the gathering. The City' s response\n\nto this office stated that no final action was taken during the gathering, however, as previously\nnoted, section 1 of OMA provides that the public shall be given advance notice and the\n\nopportunity to attend a meeting where public business \" is discussed or acted upon in any way.\"\nFurther, when confronted by another Council member about concerns with compliance with\nOMA at the gathering, the mayor admitted the non- public gathering was a violation of OMA.\nBased on the available information, the purpose of the gathering was to review the City' s water\n\nfacilities and discuss improvements to the City' s water system with an individual who was\ncontracted by the City to serve as its water operator. Such information appears to be preliminary\nto the City' s ongoing decisions concerning the operation of and improvements to the water\nsystem. Therefore, the May 31, 2019, gathering constituted a \" meeting\" subject to the\nrequirements\n\nof OMA.\n\n3Letter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\nMatt Hartman ( August 28, 2019).\n\nLetter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\nMatt Hartman ( August 28, 2019).\n\n\fMs. Stacey Briney\nSeptember 5, 2019\nPage 5\n\nAccordingly, based on the available information, this office concludes that, in\n\nconnection with its May 31, 2019, gathering, the Council and Committee violated: ( 1) section\n2. 02 of OMA by holding the meeting without proper posting of notice and an agenda; ( 2) section\n2. 01 of OMA by failing to hold the meeting at a specified time and place that was open to the\n\npublic; ( 3) section 2. 06( a) of OMA by failing to keep minutes of the meeting; and ( 4) section\n2. 06( g) of OMA by failing to provide an opportunity for public comment. Because the Council\nand the Committee did not vote upon items of final action at the meeting, there is no remedial\naction available, but this office cautions the Council and the Committee to comply with the\nrequirements of OMA when gathering to deliberate on matters of public business.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 782- 9054, mhartman@atg. state. il.us, or the Springfield address on the first page of this\nletter. This letter serves to close this file.\n\nVery truly yours,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n58390 0 2a meeting improper 201 location improper 202 notice improper 206 minutes improper\n206g public comment improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council and water committee gathering during a job candidate's site visit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58390/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL.\n\nSeptember 5, 2019\n\nVia electronic mail\n\nMs. Stacey Briney\nCity Clerk\nCity of Rushville\n111\n\nEast Washington\n\nRushville, Illinois 62681\n\nRE: OMA Request for Review —2019 PAC 58390\n\nDear\n\nand Ms. Briney:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Rushville (City) City Council (Council) and the Council's\n\nWater Committee (Committee) violated the requirements of OMA in connection with a gathering\nof members of the Council and Committee at the City's water facilities on May 31, 2019.\nBACKGROUND\n\nOn June 5, 2019, this office received a Request for Review from\n\nalleging that the Council and Committee met in violation of OMA on May 31, 2019.\nIn particular,\nstated that at the June 3, 2019, Council meeting, there was a\n\ndiscussion about members of the Committee attending a May 31, 2019, visit by Randy Dabney, a\ncandidate for the position of water superintendent, to the City's water facilities. On July 15,\n2019, this office sent a copy of the Request for Review to the City and requested that the Council\nand the Committee or their representative provide a written response to the allegations in the\n\nRequest for Review. On July 29, 2019, the Public Access Bureau received the City's written\nanswer. On July 30, 2019, this office forwarded a copy of the City's written response to\n\nshe replied on August 4, 2019. On August 22, 2019, this office requested that the City\nprovide additional information concerning the content of the discussion during the gathering with\nMr. Dabney at the water facilities. On August 27, 2019,\n\nprovided this office with\n\na copy of a recording of the June 3, 2019, meeting of the Council where the May 31, 2019,\ngathering was discussed. On August 28, 2019, the City provided a supplemental response.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any way.\"\n\n5 ILCS 120/ 1 (West 2018). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179111. App. 3d 161, 171 (5th Dist. 1989).\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2018)) provides that \"[ a] ll meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Section 1. 02 (5 ILCS 120/ 1. 02 (West 2018)) defines a \" public\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 -member\n\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business.\n\nIf a gathering of a majority of a quorum of public body members is determined to be a\nmeeting,\" then all the requirements of OMA apply, including proper posting of notice and an\nagenda (5 ILCS 120/ 2. 02 (West 2018)), holding the meeting at a specified time and place that is\nconvenient\n\nand\n\nopen\n\nto the public (5 ILCS 120/ 2. 01 (West 2018)),\n\nkeeping minutes, and\n\nallowing public comment (5 ILCS 120/ 2. 06(a), (g) (West 2018)).\nOMA \" is not intended to prohibit bona fide social gatherings of public officials,\nor truly political meetings at which party business is discussed.\n\nRather, the Act is designed to\n\nprohibit secret deliberation and action on business which properly should be discussed in a\npublic forum due to its potential impact on the public.\" People ex rel. Difanis v. Barr, 83 I11. 2d\n191,\n\n202 (1980);\n\nA \"meeting\" under the Act, has been variously described as a\ngathering \" designed to discuss or reach an accord with regard to\npublic business,\"[ citation], or as \"' collective discussion... and\nexchange of facts\n\npreliminary to the ultimate decision.\"' [ Citation]\n\nThird New International Dictionary (1976) defines \" deliberate\" as\nfollows: \" to ponder or think about with measured careful\n\nconsideration and often with formal discussion before reaching a\ndecision or conclusion.\"\n\nIn her Request for Review,\n\nstated that the mayor acknowledged at a\n\nCouncil meeting that members of the Committee were present when Mr. Dabney visited the\nwater facilities. According to\nat the June 3, 2019, Council meeting, a member of\nthe Council alleged that the Committee and the Council had violated OMA by gathering with\nMr. Dabney. In its answer to this office, the City stated that three of the four members of the\n\nCommittee, who are also aldermen on the eight -member Council, were present along with the\nmayor at the City's water facilities on May 31, 2019. The City initially stated to this office that\nthe members and the mayor were gathered to get to know Mr. Dabney, who was inspecting the\nwater facilities because he was a candidate for the water superintendent position. The City\nasserted that no business was conducted and no actions were taken during the gathering. The\nCity further stated that \"[ a] II parties deny that there was a meeting to discuss City business, [ and\nthat the gathering was] merely to become acquainted with the applicant Dabney and review the.\nfacility.\"'\n\nIn her reply,\n\nstated that she disagreed with the City's answer. She\n\nalso provided a copy of the recording of the June 3, 2019, meeting that she had referred to in her\nRequest for Review, which this office reviewed. In the recording of the June 3, 2019, open\nmeeting, the mayor admitted that the May 31, 2019, gathering violated OMA but did not\n\nelaborate on the discussion between Mr. Dabney and the members of the Council and\nCommittee. In its supplemental response to this office, the City stated that the members present\nmet with Mr. Dabney \" and then went to each facility to discuss how the [ C] ity's water plant\n\nworked.\" 2 Despite the City's initial assertion that the gathering was to get merely to get\nacquainted with Mr. Dabney, in its supplemental response, the City described Mr. Dabney as\nthe new water operator\" and stated that \"[ ail the time of the meeting, the City Council had\nLetter from Stacey Briney, City Clerk, City of Rushville, to Assistant Attorney General Matt\nHartman, [ Public Access Bureau], [ Office of the Attorney General] (Undated).\n\n2 Letter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\n\nalready approved\n\na contract\n\nwith\n\nMr. Dabney\n\nat a\n\ncost of One\n\nThousand Dollars ($ 1, 000) per\n\nmonth. i3 The 'City further stated that it has been making \" major improvements\" to its water\n\nsystem and that those improvements were \" touched on\" during the gathering with Mr. Dabney. 4\nThe Attorney General\n\nhas noted that \"[ d] eliberation ***\n\nconnotes\n\nnot only\n\ncollective discussion, but the collective acquisition and exchange of facts preliminary to the\nultimate decision.\"\n\nIll. Att' y Gen. Op. No. 5- 726, issued March 22, 1974, at 125 (quoting\n\nSacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41,\n47- 48, 69 Cal. Rptr. 480, 485 (Cal. Ct. App. 1968)).\n\nIn the same opinion, the Attorney General\n\nalso quoted Sacramento Newspaper Guild for the proposition that,\n\nt] here is rarely any purpose toa nonpublic pre -meeting conference\nexcept to conduct some part of the decisional process behind\n\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages, as well as the ultimate step of official action, can\nan open meeting regulation frustrate these evasive devices.\n\nEmphasis added.) I11. Att' y Gen. Op. No. S- 726, at 125 (quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50, 69 Cal.\nRptr. at 487).\n\nAlthough the City's responses to this office about the content of the discussions\n\nthat took place during the gathering lacked detail, it is undisputed that a majority of a quorum of\nthe members of the Council and Committee were present and that issues concerning the\nimprovements to the water system were \" touched on\" during the gathering. The City's response\n\nto this office stated that no final action was taken during the gathering, however, as previously\nnoted, section 1 of OMA provides that the public shall be given advance notice and the\n\nopportunity to attend a meeting where public business \" is discussed or acted upon in any way.\"\nFurther, when confronted by another Council member about concerns with compliance with\nOMA at the gathering, the mayor admitted the non- public gathering was a violation of OMA.\nBased on the available information, the purpose of the gathering was to review the City's water\n\nfacilities and discuss improvements to the City's water system with an individual who was\ncontracted by the City to serve as its water operator. Such information appears to be preliminary\nto the City's ongoing decisions concerning the operation of and improvements to the water\nsystem. Therefore, the May 31, 2019, gathering constituted a \" meeting\" subject to the\nrequirements\n\nof OMA.\n\n3 Letter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\nMatt Hartman (August 28, 2019).\n\nLetter from Stacey L. Briney, City Clerk/ CMC, City of Rushville, to Assistant Attorney General\n\nAccordingly, based on the available information, this office concludes that, in\n\nconnection with its May 31, 2019, gathering, the Council and Committee violated: (1) section\n2. 02 of OMA by holding the meeting without proper posting of notice and an agenda; (2) section\n2. 01 of OMA by failing to hold the meeting at a specified time and place that was open to the\n\npublic; (3) section 2. 06(a) of OMA by failing to keep minutes of the meeting; and (4) section\n2. 06(g) of OMA by failing to provide an opportunity for public comment. Because the Council\nand the Committee did not vote upon items of final action at the meeting, there is no remedial\naction available, but this office cautions the Council and the Committee to comply with the\nrequirements of OMA when gathering to deliberate on matters of public business.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 782- 9054, mhartman@atg. state. il.us, or the Springfield address on the first page of this\nletter. This letter serves to close this file.\n\nVery truly yours,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n58390 0 2a meeting improper 201 location improper 202 notice improper 206 minutes improper\n206g public comment improper mun"}
{"id":1304,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-07-12","case_number":null,"request_numbers":["58515"],"title":"Village of Sauk Village Board violated OMA by failing to cite closed session exception","filename":"58515, issued July 12, 2019.pdf","rel_path":null,"word_count":1056,"summary":"Mr. Stan Zegel alleged that the Village of Sauk Village Board of Trustees failed to properly identify the specific statutory exception for entering a closed session during its June 11, 2019, meeting. The PAC determined that the Board violated the Open Meetings Act by failing to publicly cite the specific exception authorizing the closed session.","plain_summary":"A citizen complained that the Village of Sauk Village Board of Trustees did not properly announce why they were going into a private, closed-door meeting. The Attorney General's office agreed, finding that the Board failed to follow the law requiring them to publicly state the specific legal reason for closing the meeting. While the Board cannot undo the past meeting, they were asked to properly cite the law for any future closed sessions.","holding":"The Village of Sauk Village Board of Trustees violated section 2a of the Open Meetings Act by failing to publicly cite the specific exception that authorized it to close its June 11, 2019, meeting.","legal_question":"Whether the Village of Sauk Village Board of Trustees violated section 2a of the Open Meetings Act by failing to adequately identify the specific statutory exception authorizing a closed session during a public recital.","disposition":"violation_found","primary_statute":["5 ILCS 120/2a"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Village of Sauk Village Board of Trustees","requesting_party":"Mr. Stan Zegel","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board failed to properly cite the specific statutory exception required to enter a closed session during a public meeting.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2a/Citing-the-section/58515, issued July 12, 2019.pdf","sha256":"b175eec2faf0aa2bd4c883db60a5c4f437a0102a9b527ece455f7f1f8ce30bc8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting requirements","public notice","OMA violation"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJuly 12, 2019\n\nVia electronic mail\nMr. Stan Zegel\n\nExecutive Director\nThe Citizen Participation Institute\n\ndirector@citizenparticipation. org\nVia electronic mail\n\nThe Honorable Derrick Burgess\nMayor\n\nVillage of Sauk Village\n21801 Torrence Avenue\n\n[street address redacted for site publication -- see original PDF]\ndburgess@saukvillage. org\nRE: OMA Request for Review — 2019 PAC 58515\nDear Mr. Zegel and Mr. Burgess:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Village of Sauk Village Board of Trustees ( Board) violated OMA in\nconnection with its June 11, 2019, meeting.\nBACKGROUND\n\nIn his Request for Review, Mr. Stan Zegel alleged that during its June 11, 2019,\nmeeting, the Board did not adequately identify the subject of its closed session in a public recital\nbefore entering closed session, in violation of section 2a of OMA ( 5 ILCS 120/ 2a ( West 2016)).\nOn June 19, 2019, this office sent a copy of the Request for Review to the Board and requested\nthat it provide a written response to Mr. Zegel' s allegations and to provide copies of the June 11,\n\n2019, meeting agenda and minutes, as well as any recordings of the open session of the meeting.\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601\n\nSouth University Ave., Carbondale, Illinois\n\n62901 • (\n\n618)\n\n529- 6400.•\n\nTTY: ( 877)\n\n675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Stan Zegel\n\nThe Honorable Derrick Burgess\n\nJuly 12, 2019\nPage 2\n\nOn July 5, 2019, the Board responded.\n\nOn July 8, 2019, this office forwarded the Board' s\n\nwritten response to Mr. Zegel; he replied the same day.'\nDETERMINATION\n\nSection 2a of OMA sets forth the procedure for a public body to enter closed\nsession, including the requirement that:\n\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\n\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\n\nmeeting. ( Emphasis added.)\n\nThus, although a public body does not have to give notice of a closed session it intends to hold\n\non a meeting agenda, 2 a public body does have to publicly disclose the specific exception on\nwhich it relies when it votes to close a portion of a meeting, and that exception needs to be\ndocumented in the meeting minutes.\nIn its response to this office, the Board stated that it adjourned to closed session to\n\ndiscuss personnel and possible litigation. This office' s review of the video recording of the June\n11, 2019, open session confirmed that Trustee Linda Todd made a motion to go into closed\n\nsession \" for personnel and pending litigation.\" 3 The Attorney General has issued a binding\nopinion ( 111. Att' y Gen. Pub. Acc. Op. No. 15- 007, issued September 16, 2015, at 4) concluding\nthat \"[ a] mere reference to ' personnel' does not adequately identify any exception that authorizes\na public body to close part of a meeting.\" This is because two of the OMA exceptions ( 5 ILCS\n12012( c)( 8), ( c)( 14) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 27,\n2018) contain the word \" personnel,\" whereas the section 2( c)( 1) (\n\n5 ILCS 120/ 2( c)( 1) ( West 2017\n\nSupp.), as amended by Public Act 100- 646, effective July 27, 2018) exception for \"[ t] he\nIn his reply, Mr. Zegel alleged for the first time that the Board did not make a verbatim recording\nof its June 11, 2019, closed session, in violation of section 2. 06( a) of OMA ( 5 ILCS I20/ 2. 06( a) ( West 2016)).\nBecause Mr. Zegel did not raise this allegation\ndetermination.\n\nin his Request\n\nfor Review,\n\nit is beyond the scope of this\n\n2Section 2a provides: \" At any open meeting of a public body for which proper notice under this\nAct has been given, the body may, without additional notice under Section 2. 02, hold a closed meeting in\naccordance with this Act.\"\n\n3SV Regular Meeting 06 11 19, available at https:// www. youtube. com/ watch? v=_ 5tvutZZi3M, at\n07: 26.\n\n\fMr. Stan Zegel\n\nThe Honorable Derrick Burgess\n\nJuly 12, 2019\nPage 3\n\nappointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body,\" does not. It is not clear\nwhich of the section 2( c) exceptions referencing personnel or employees the Board intended to\n\ncite before entering closed session. Accordingly, the Board violated section 2a of OMA by\nfailing to publicly cite the specific exception that authorized it to close its June 11, 2019,\nmeeting.\n\nWhile there is no remedial action that could rectify this violation, this office\nreminds the Board to adhere to section 2a and all of the other requirements of OMA. If the\n\nBoard wishes to close a portion of a meeting to discuss specific employees in the future, it must\nin open session either announce that it intends to close the meeting pursuant to \" section 2( c)( 1)\"\n\nor recite language from section 2( c)( 1) that sufficiently identifies that exception. Ill. Att'y Gen.\nPub. Acc. Op. No. 15- 007, issued September 16, 2015, at 4- 5.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, LHarter@atg. state. il.us, or ( 217) 524- 7958.\nThis letter serves to close this file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n58515 o 2a citation improper mun\ncc:\n\nVia electronic mail\n\nMs. Mary Klopp\nFOIA Officer\n\nVillage of Sauk Village\nFOIA@saukvillage. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's failure to cite a closed-session exception","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58515/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJuly 12, 2019\n\nVia electronic mail\nMr. Stan Zegel\n\nExecutive Director\nThe Citizen Participation Institute\n\ndirector@citizenparticipation. org\nVia electronic mail\n\nThe Honorable Derrick Burgess\nMayor\n\nVillage of Sauk Village\n21801 Torrence Avenue\n\n[street address redacted for site publication -- see original PDF]\ndburgess@saukvillage. org\nRE: OMA Request for Review — 2019 PAC 58515\nDear Mr. Zegel and Mr. Burgess:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2016)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Village of Sauk Village Board of Trustees (Board) violated OMA in\nconnection with its June 11, 2019, meeting.\nBACKGROUND\n\nIn his Request for Review, Mr. Stan Zegel alleged that during its June 11, 2019,\nmeeting, the Board did not adequately identify the subject of its closed session in a public recital\nbefore entering closed session, in violation of section 2a of OMA (5 ILCS 120/ 2a (West 2016)).\nOn June 19, 2019, this office sent a copy of the Request for Review to the Board and requested\nthat it provide a written response to Mr. Zegel's allegations and to provide copies of the June 11,\n\n2019, meeting agenda and minutes, as well as any recordings of the open session of the meeting.\n\nOn July 5, 2019, the Board responded.\n\nOn July 8, 2019, this office forwarded the Board's\n\nwritten response to Mr. Zegel; he replied the same day.'\nDETERMINATION\n\nSection 2a of OMA sets forth the procedure for a public body to enter closed\nsession, including the requirement that:\n\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\n\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\n\nmeeting. (Emphasis added.)\n\nThus, although a public body does not have to give notice of a closed session it intends to hold\n\non a meeting agenda, 2 a public body does have to publicly disclose the specific exception on\nwhich it relies when it votes to close a portion of a meeting, and that exception needs to be\ndocumented in the meeting minutes.\nIn its response to this office, the Board stated that it adjourned to closed session to\n\ndiscuss personnel and possible litigation. This office's review of the video recording of the June\n11, 2019, open session confirmed that Trustee Linda Todd made a motion to go into closed\n\nsession \" for personnel and pending litigation.\" 3 The Attorney General has issued a binding\nopinion (111. Att' y Gen. Pub. Acc. Op. No. 15- 007, issued September 16, 2015, at 4) concluding\nthat \"[ a] mere reference to ' personnel' does not adequately identify any exception that authorizes\na public body to close part of a meeting.\" This is because two of the OMA exceptions (5 ILCS\n12012(c)(8), (c)(14) (West 2017 Supp.), as amended by Public Act 100- 646, effective July 27,\n2018) contain the word \" personnel,\" whereas the section 2(c)(1) (5 ILCS 120/ 2(c)(1) (West 2017\n\nSupp.), as amended by Public Act 100- 646, effective July 27, 2018) exception for \"[ t] he\nIn his reply, Mr. Zegel alleged for the first time that the Board did not make a verbatim recording\nof its June 11, 2019, closed session, in violation of section 2. 06(a) of OMA (5 ILCS I20/ 2. 06(a) (West 2016)).\nBecause Mr. Zegel did not raise this allegation\ndetermination.\n\nin his Request\n\nfor Review,\n\nit is beyond the scope of this\n\n2 Section 2a provides: \" At any open meeting of a public body for which proper notice under this\nAct has been given, the body may, without additional notice under Section 2. 02, hold a closed meeting in\naccordance with this Act.\"\n\n3SV Regular Meeting 06 11 19, available at https:// www. youtube. com/ watch? v=_ 5tvutZZi3M, at\n\nappointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body,\" does not. It is not clear\nwhich of the section 2(c) exceptions referencing personnel or employees the Board intended to\n\ncite before entering closed session. Accordingly, the Board violated section 2a of OMA by\nfailing to publicly cite the specific exception that authorized it to close its June 11, 2019,\nmeeting.\n\nWhile there is no remedial action that could rectify this violation, this office\nreminds the Board to adhere to section 2a and all of the other requirements of OMA. If the\n\nBoard wishes to close a portion of a meeting to discuss specific employees in the future, it must\nin open session either announce that it intends to close the meeting pursuant to \" section 2(c)(1)\"\n\nor recite language from section 2(c)(1) that sufficiently identifies that exception. Ill. Att'y Gen.\nPub. Acc. Op. No. 15- 007, issued September 16, 2015, at 4- 5.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, LHarter@atg. state. il.us, or (217) 524- 7958.\nThis letter serves to close this file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n58515 o 2a citation improper mun\ncc:\n\nVia electronic mail\n\nMs. Mary Klopp\nFOIA Officer\n\nVillage of Sauk Village\nFOIA@saukvillage. org"}
{"id":1305,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-08-20","case_number":null,"request_numbers":["58555","58614","58615"],"title":"Wesley Township Board violated OMA by taking final action outside open meeting","filename":"58555 58614 58615, issued August 20, 2019.pdf","rel_path":null,"word_count":1470,"summary":"The PAC determined that the Wesley Township Board of Trustees violated the Open Meetings Act by taking final action to prohibit camping at a township park without holding an open meeting.","plain_summary":"A citizen complained that the township board banned camping at a local park without ever voting on the matter in a public meeting. The Attorney General's office agreed, finding that the board took 'final action' on the issue without following the required open meeting procedures. The board has been asked to fix the violation by reconsidering the camping policy during a properly noticed public meeting.","holding":"The Wesley Township Board of Trustees violated OMA by taking final action outside of an open meeting.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on a policy matter outside of a properly convened open meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Wesley Township Board of Trustees","requesting_party":"Mr. John Kraft","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board prohibited camping at a township park without taking formal action during an open meeting.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/58555 58614 58615, issued August 20, 2019.pdf","sha256":"211944ff20cc83c86e88f1120108fb5bd93fc0356a8d8423b2a646b2f8054c4f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["final action","open meeting","township board","public notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nAugust 20, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John Kraft\n\njohn@illinoisleaks.com\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable JoAnn Quigley\nSupervisor\n\nWesley Township\n[street address redacted for site publication -- see original PDF]\nWesleysuper2017@outlook.\n\nRE:\n\ncom\n\nOMA Request for Review — 2019 PAC 58555; 2019 PAC 58614; 2019 PAC\n58615\n\nDear Mr. Kraft,\n\nand Ms. Quigley:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nAct ( OMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Wesley Township Board of Trustees ( Board) violated OMA by\nimproperly taking final action outside of an open meeting.\nIn June 2019, Mr. John Kraft,\n\nand\n\nsubmitted\n\nRequests for Review alleging that the Board prohibited camping at the Township Park ( Park)\nwithout complying with the requirements of OMA. In support of those allegations, each\n\nsubmission alluded to a video of the Board' s June 13, 2019, meeting which is posted on the\ninternet. The video shows a member of the public questioning why \" no camping\" signs were\nplaced in the Park without the Board taking action to prohibit camping during an open meeting.\nThe Township supervisor responded that \" we had a situation, we acted on it. It was in our\nestimation an emergent situation that we needed to stop any more problems with the Park, with\n\n500 South Second Street, Springfield, Illinois 62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 217) 785 - 2771 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph\n\n312) 814- 3000 •\n\nTTY: (\n\nFax: ( 312) 814- 3806\n\nStreet, Chicago,\n\n1001 East Main, Carbondale,\n\nIllinois, 60601 • (\n\n312)\n\n814- 3374 •\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 •\n\nFax: ( 618) 529- 6416\n\n\fMr. John Kraft\n\nThe Honorable JoAnn Quigley\nAugust 20, 2019\nPage 2\n\nthe camping area. Four Board members agreed that we needed to stop the camping.\" l The\nmember of the public replied that he could not recall the Board reaching such an agreement at a\nBoard meeting.\nOn June 24, 2019, this office sent copies of the Requests for Review to the Board\n\nand asked it to provide a written response to the allegation that the Board held a private gathering\nand took action to prohibit camping at the Park. If the Board had prohibited camping at the Park,\nwe asked the Board to explain when and how that decision was made and to describe how Board\n\nmembers communicated about the matter and reached a consensus. On July 2, 2019, the\nTownship supervisor responded that the Board did not hold any meetings about camping at the\nPark. Instead, she stated that after problems at the Park which resulted in the involvement of\npolice were reported to\n\nby\n\neach\n\nof the\n\nBoard\n\nfour Board\n\nmembers, \"[\n\nmembers.\"'\n\nt] he supervisor was contacted by phone or in person\n\nThe response further stated, in pertinent part:\n\nEach board member stated they wanted camping at the Park\nsuspended until further notice.\n\nThe trustees felt the enjoyment [ of]\n\nPark patrons camping was being interfered with by dissenting\nresidents.\n\nA notice of no camping at the Park until further notice was\nplaced in the local paper and at the Park. It was also made\n\navailable on the township website. 131\nand\nreplied to that response by asserting that the Township supervisor' s\nexplanation demonstrated that the Board violated OMA by improperly taking final action outside\nof an open meeting.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2018). Section 2( e) of OMA\nWesley Township Board of Trustees, Meeting, June 12, 2019, Video File, available at\nhttps:// www. youtube. com/ watch? v= cm60YWteso8&\n\nfeature= youtu. be ( last visited August 16, 2019).\n\nE- mail from JoAnn Quigley, Wesley Township Supervisor, to [ Steve] Silverman (July 2, 2019).\nE- mail\n\nfrom JoAnn\n\nQuigley, Wesley Township Supervisor,\n\nto [ Steve]\n\nSilverman ( July 2, 2019).\n\n\fMr. John Kraft\n\nThe Honorable JoAnn Quigley\nAugust 20, 2019\nPage 3\n\n5 ILCS I 20/ 2( e) ( West 2018)) provides that \"[ nit) final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\" A public body\nmust post an agenda that sets forth \" the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\n\n5 ILCS 120/ 2. 02( c) ( West 2018).\n\nIt is permissible for a public body to take a preliminary vote in a closed session,\nbut all final actions must be taken in an open meeting. Board of Education ofSpringfield School\nDistrict No. 186 v. Attorney Gen. of Illinois, 2017 IL 120343, ¶¶ 73- 74, 77 N. E. 3d 625, 637\n2017); see also Howe v. Retirement Board of the Firemen' s Annuity & Benefit Fund, Howe,\n\n2013 IL App ( 1st) 122446, ¶ 29, 996 N.E.2d 664, 670 ( 2013) ( vacating the board's decision to\ndeny disability benefits because the board had circulated the decision for signatures privately\nrather than voting on it in open session); Lawrence v. Williams, 2013 IL App ( 1st) 130757, ¶ 21,\n988 N.E.2d 1039, 1043- 44 ( 2013) ( finding electoral board' s written decision null and void\nbecause the decision was not made in an open meeting).\nThe Board' s response to this office stated that camping was prohibited at the Park\n\nafter four Board members contacted the Township supervisor and indicated that they wanted\ncamping suspended until further notice. Although there is no indication that the five -member\n\nBoard4 held an improper \" meeting\" as that term is defined by OMA, 5 the Board members\nmanifested a collective decision to prohibit camping at the Park through their communications\nwith the Township supervisor. The Board has not asserted that this decision was subsequently\nratified at an open meeting after the Board provided proper advance notice, a public recital of its\nfinal action, and otherwise complied with the requirements of OMA. Further, the decision to\n\nprohibit camping at the Park was implemented by posting \" no camping\" notices at the Park and\nThe Township Board consists of the Township supervisor and four Board members.\n1/ 80- 5 ( West 2018).\n\nSection 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2018)) defines \" meeting\" as:\nany gathering, whether in person or by video or audio conference, telephone\ncall, electronic means ( such as, without limitation, electronic mail, electronic\n\nchat, and instant messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a public body\nheld for the purpose of discussing public business or, for a 5 -member public\nbody, a quorum of the members of a public body held for the purpose of\ndiscussing public business. ( Emphasis added.) There is no indication that three\nor more members of the five -member Board engaged in contemporaneous\ninteractive communications concerning the Park.\n\n60 ILCS\n\n\fr.\nJohn Kraft\n\nThe Honorable JoAnn Quigley\nAugust 20, 2019\nPage 4\n\non the Village' s website. Even if the Board considered the problems at the Park an emergency,\nOMA still requires a public body addressing a \" bona fide emergency\" to take final action in open\n\nsession. 6 Accordingly, this office concludes that the Board violated section 2( e) of OMA.\nIn accordance with the conclusions\n\nexpressed above, this office requests that the\n\nBoard remedy its violation of OMA by reconsidering and taking final action concerning camping\nat the Park during an open meeting in which it fully complies with the requirements of OMA.\nThe Public Access Counselor has determined that resolution of these matters does not require the\n\nissuance of a binding opinion. If you have any questions, please contact me at ( 312) 814- 6756.\nThese files are closed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n58555 58614 58615 0 2e improper twp\n\nSection 2. 02( a) of OMA ( 5 ILCS I20/ 2. 02( a) ( West 2018)) provides that \"[ p] ublic notice of any\n\nspecial meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting,\nor\n\nof\n\nany reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\n\nBecause the Board did not\n\nhold a meeting, the question of whether the camping problems constituted a bona fide emergency is not at issue in\nthis\n\nmatter.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A township board's prohibition of camping in a park","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58555/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nAugust 20, 2019\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John Kraft\n\njohn@illinoisleaks.com\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable JoAnn Quigley\nSupervisor\n\nWesley Township\n[street address redacted for site publication -- see original PDF]\nWesleysuper2017@outlook.\n\nRE:\n\ncom\n\nOMA Request for Review — 2019 PAC 58555; 2019 PAC 58614; 2019 PAC\n58615\n\nDear Mr. Kraft,\n\nand Ms. Quigley:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nAct (OMA) (5 ILCS\n\n120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Wesley Township Board of Trustees (Board) violated OMA by\nimproperly taking final action outside of an open meeting.\nIn June 2019, Mr. John Kraft,\n\nand\n\nsubmitted\n\nRequests for Review alleging that the Board prohibited camping at the Township Park (Park)\nwithout complying with the requirements of OMA. In support of those allegations, each\n\nsubmission alluded to a video of the Board's June 13, 2019, meeting which is posted on the\ninternet. The video shows a member of the public questioning why \" no camping\" signs were\nplaced in the Park without the Board taking action to prohibit camping during an open meeting.\nThe Township supervisor responded that \" we had a situation, we acted on it. It was in our\nestimation an emergent situation that we needed to stop any more problems with the Park, with\n\nthe camping area. Four Board members agreed that we needed to stop the camping.\" l The\nmember of the public replied that he could not recall the Board reaching such an agreement at a\nBoard meeting.\nOn June 24, 2019, this office sent copies of the Requests for Review to the Board\n\nand asked it to provide a written response to the allegation that the Board held a private gathering\nand took action to prohibit camping at the Park. If the Board had prohibited camping at the Park,\nwe asked the Board to explain when and how that decision was made and to describe how Board\n\nmembers communicated about the matter and reached a consensus. On July 2, 2019, the\nTownship supervisor responded that the Board did not hold any meetings about camping at the\nPark. Instead, she stated that after problems at the Park which resulted in the involvement of\npolice were reported to\n\nby\n\neach\n\nof the\n\nBoard\n\nfour Board\n\nmembers, \"[\n\nmembers.\"'\n\nt] he supervisor was contacted by phone or in person\n\nThe response further stated, in pertinent part:\n\nEach board member stated they wanted camping at the Park\nsuspended until further notice.\n\nThe trustees felt the enjoyment [ of]\n\nPark patrons camping was being interfered with by dissenting\nresidents.\n\nA notice of no camping at the Park until further notice was\nplaced in the local paper and at the Park. It was also made\n\navailable on the township website. 131\nand\nreplied to that response by asserting that the Township supervisor's\nexplanation demonstrated that the Board violated OMA by improperly taking final action outside\nof an open meeting.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2018). Section 2(e) of OMA\nWesley Township Board of Trustees, Meeting, June 12, 2019, Video File, available at\nhttps:// www. youtube. com/ watch? v= cm60YWteso8&\n\nfeature= youtu. be (last visited August 16, 2019).\n\nE- mail from JoAnn Quigley, Wesley Township Supervisor, to [ Steve] Silverman (July 2, 2019).\nE- mail\n\n5 ILCS I 20/ 2(e) (West 2018)) provides that \"[ nit) final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\" A public body\nmust post an agenda that sets forth \" the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\n\n5 ILCS 120/ 2. 02(c) (West 2018).\n\nIt is permissible for a public body to take a preliminary vote in a closed session,\nbut all final actions must be taken in an open meeting. Board of Education ofSpringfield School\nDistrict No. 186 v. Attorney Gen. of Illinois, 2017 IL 120343, ¶¶ 73- 74, 77 N. E. 3d 625, 637\n2017); see also Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, Howe,\n\n2013 IL App (1st) 122446, ¶ 29, 996 N.E.2d 664, 670 (2013) (vacating the board's decision to\ndeny disability benefits because the board had circulated the decision for signatures privately\nrather than voting on it in open session); Lawrence v. Williams, 2013 IL App (1st) 130757, ¶ 21,\n988 N.E.2d 1039, 1043- 44 (2013) (finding electoral board's written decision null and void\nbecause the decision was not made in an open meeting).\nThe Board's response to this office stated that camping was prohibited at the Park\n\nafter four Board members contacted the Township supervisor and indicated that they wanted\ncamping suspended until further notice. Although there is no indication that the five -member\n\nBoard4 held an improper \" meeting\" as that term is defined by OMA, 5 the Board members\nmanifested a collective decision to prohibit camping at the Park through their communications\nwith the Township supervisor. The Board has not asserted that this decision was subsequently\nratified at an open meeting after the Board provided proper advance notice, a public recital of its\nfinal action, and otherwise complied with the requirements of OMA. Further, the decision to\n\nprohibit camping at the Park was implemented by posting \" no camping\" notices at the Park and\nThe Township Board consists of the Township supervisor and four Board members.\n1/ 80- 5 (West 2018).\n\nSection 1. 02 of OMA (5 ILCS 120/ 1. 02 (West 2018)) defines \" meeting\" as:\nany gathering, whether in person or by video or audio conference, telephone\ncall, electronic means (such as, without limitation, electronic mail, electronic\n\nchat, and instant messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a public body\nheld for the purpose of discussing public business or, for a 5 -member public\nbody, a quorum of the members of a public body held for the purpose of\ndiscussing public business. (Emphasis added.) There is no indication that three\n\non the Village's website. Even if the Board considered the problems at the Park an emergency,\nOMA still requires a public body addressing a \" bona fide emergency\" to take final action in open\n\nsession. 6 Accordingly, this office concludes that the Board violated section 2(e) of OMA.\nIn accordance with the conclusions\n\nexpressed above, this office requests that the\n\nBoard remedy its violation of OMA by reconsidering and taking final action concerning camping\nat the Park during an open meeting in which it fully complies with the requirements of OMA.\nThe Public Access Counselor has determined that resolution of these matters does not require the\n\nissuance of a binding opinion. If you have any questions, please contact me at (312) 814- 6756.\nThese files are closed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n58555 58614 58615 0 2e improper twp\n\nSection 2. 02(a) of OMA (5 ILCS I20/ 2. 02(a) (West 2018)) provides that \"[ p] ublic notice of any\n\nspecial meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting,\nor\n\nof\n\nany reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\n\nBecause the Board did not\n\nhold a meeting, the question of whether the camping problems constituted a bona fide emergency is not at issue in\nthis\n\nmatter."}
{"id":1306,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-10-25","case_number":null,"request_numbers":["58651"],"title":"Elmhurst School Board improperly discussed intergovernmental agreement in closed session","filename":"58651, issued October 25, 2021.pdf","rel_path":null,"word_count":2442,"summary":"The PAC determined that the Elmhurst Community Unit School District 205 Board of Education improperly discussed an intergovernmental agreement in a closed session without meeting the requirements for the litigation exception.","plain_summary":"A citizen complained that a school board held a private meeting to discuss an agreement with the city, which the board claimed was allowed because of potential legal action. The Illinois Attorney General's Public Access Bureau concluded that the board improperly discussed certain matters in closed session during its April 23, 2019, meeting and failed to make a finding that litigation was probable or imminent. The source document does not state that the board was asked to release the recordings and minutes to the public.","holding":"The Board of Education improperly discussed certain matters in closed session and failed to make a finding that litigation was probable or imminent.","legal_question":"Whether the Board of Education properly invoked the OMA litigation exception (5 ILCS 120/2(c)(11)) and other property-related exceptions to discuss an intergovernmental agreement in closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)","5 ILCS 120/2(c)(6)","5 ILCS 120/2(c)(11)"],"public_body":"Board of Education of Elmhurst Community Unit School District 205","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board held a closed session to discuss an intergovernmental agreement with the City of Elmhurst under the guise of litigation and property exceptions.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_5/58651, issued October 25, 2021.pdf","sha256":"603530728474d9be2dce5feaf2fef00a87d5dc7b00422ebbd7667075b6092c57","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","litigation exception","meeting minutes","open meetings act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 25, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Todd Faulkner\nFranczek\n\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\n\njtf@franczek.com\nRE: OMA Request for Review – 2019 PAC 58651\nDear\n\nand Mr. Faulkner:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons that follow, the Public Access\n\nBureau concludes that the Board of Education (Board) of Elmhurst Community Unit School\nDistrict 205 ( District) improperly discussed certain matters in closed session during its April 23,\n\n2019, meeting, and failed to make a finding that litigation was probable or imminent.\nOn June 21, 2019,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that during its closed session on April 23, 2019, the Board improperly\n\ndiscussed an intergovernmental agreement (IGA) between the District and the City of Elmhurst\nCity). Noting that the Board went into closed session pursuant to sections 2(c)( 5), 2(c)( 6), and\n\n2(c)(11) of OMA (5 ILCS 120/2(c)(5), (c)(6), (c)(11) (West 2018)),\n\nclaimed that the\n\nsection 2(c)( 11) exception was inapplicable because \" it does not appear that the School District\n\nhas explicitly threatened litigation, nor does it appear that litigation is filed, pending, probable, or\nimminent.\" 1 He acknowledged, however, that Board President Kara Caforio publicly stated that\n\nthe Board would explore avenues other than continued negotiation with the City to recoup the\n1Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nJune 21, 2019).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Todd Faulkner\n\nOctober 25, 2021\nPage 2\n\nmoney the Board believed the District was owed. He further acknowledged that during the\nElmhurst City Council' s May 6, 2019, meeting, the City' s mayor stated that the District was\n\nplanning to sue the City. Yet, he argued, even if litigation was properly determined to be\nprobable or imminent, the Board did not limit its closed session discussion to the strategies,\n\npostures, theories, and consequences of the litigation as required.\nfurther argued that the IGA contained provisions that are unrelated to the\nsale, purchase, or lease of property under sections 2(c)( 5) and 2(c)( 6), such as payments the City\n\nbelieved were due from the District for a 2004 tax increment financing (TIF) agreement. He\nclaimed that the Board' s closed session discussion concerned aspects of the IGA that are\n\nunrelated to the reasons for entering closed session, such as stormwater risk management,\nexpanding or reconfiguring schools, and facility needs.\n\nenclosed a copy of the minutes\n\nof the meeting, a Pioneer Press article about the meeting,2 and the City's April 19, 2019,\nresponse to the District' s March 29, 2019, proposed version of the IGA.\nOn June 28, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to the Board and asked it to provide this office with copies of its April 23, 2019, agenda,\nopen and closed session minutes ( in draft form if necessary), and closed session verbatim\n\nrecording for this office's confidential review, together with a written response to the allegation\nthat it improperly discussed the IGA during closed session. On August 13, 2019, counsel for the\nBoard provided this office with those materials, including two versions of its written answer: a\n\ncomplete version for this office's confidential review, and a redacted version for forwarding to\n3\n\ndid not submit a reply.\n\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020).\nSection 2(a) of OMA (5 ILCS 120/2(a) ( West 2018)) provides that all meetings of\na public body shall be open to the public unless the subject of the meeting falls within one of the\n\nexceptions set out in section 2(c) of OMA. The section 2(c) exceptions are to be \"strictly\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) ( West 2018).\n\n2Graydon Megan, Outgoing Elmhurst District 205 Board rejects agreement with city on\nstormwater plan, PIONEER PRESS ( May 6, 2019, 4:55 p.m.), https://www.chicagotribune.com/suburbs/elmhurst/ctdob-elmhurfst-jackson-york-stormwater-tl-0509-story.html.\n3See 5 ILCS 120/3.5(c) (West 2018) (\" The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n\n\fMr. Todd Faulkner\n\nOctober 25, 2021\nPage 3\n\nSections 2(c)(5), 2(c)(6), and 2(c)(11) of OMA allow a public body to enter into\nclosed session to consider:\n5) The purchase or lease of real property for the use of the\n\npublic body, including meetings held for the purpose of discussing\nwhether a particular parcel should be acquired.\n6) The setting of a price for sale or lease of property\n\nowned by the public body.\n\n11) Litigation, when an action against, affecting or on\nbehalf of the particular public body has been filed and is pending\n\nbefore a court or administrative tribunal, or when the public body\nfinds that an action is probable or imminent, in which case the\n\nbasis for the finding shall be recorded and entered into the minutes\nof the closed meeting.\n\nIn its non-confidential response in this matter, the Board argued that it properly\nentered closed session on April 23, 2019, under these three exceptions to the requirement to\n\ndiscuss public business openly. The Board's counsel stated that the IGA under consideration\nwas the culmination of nine months of negotiations between the City and the District following\n\nthe District's threat to sue the City over the City's failure to pay millions of dollars to the District\"\nunder the aforementioned 2004 TIF agreement. 4 He explained that the proposed IGA involved\n\nvarious tradeoffs, including the District's conveyance of easements to the City for stormwater\nmanagement projects, the City' s agreement to make certain land improvements, lawsuit waivers\n\nfor both parties for certain matters, and TIF payments from the City to the District. The District\nargued that the City' s payments and commitments \" are all a part of the consideration, or 'sale\n\nprice', of the easements to be granted to the City.\"5 The Board explained that it \"viewed the\nCity' s April 19 response as a substantial regression from positions taken in the months which led\n\n4Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 1.\n5Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 2.\n\n\fMr. Todd Faulkner\n\nOctober 25, 2021\nPage 4\n\nup to the District's March 29 proposed version of the IGA[,]\" and disputes remained over various\nmatters. 6\nAddressing its use of the section 2(c)( 11) exception, the Board asserted that \"[ a] t\n\nthe outset of the closed session, the probable or imminent finding was cryptically made by\nreference to the prior threats to sue the City and is reflected in the relevant portions of the\n\nminutes of the closed session.\" 7 This office's review of the closed session verbatim recording\nconfirmed that the Board did not make a finding that litigation was probable or imminent. On\n\nthat basis alone, the Board did not adhere to section 2(c)(11) of OMA. See Henry v. Anderson,\n356 Ill. App. 3d 952, 957 ( 4th Dist. 2005) ( holding that \" the board violated the Act by failing to\n\nstate, on the record, (1) a finding that litigation was probable or imminent and (2) a basis for such\na finding.\").\nAccording to the Board' s attorney, \"[ t]he primary focus of the Board' s closed\n\nsession discussion on April 23 was the Board's response to the City's April 19 draft of the IGA.\nInterwoven in that discussion were all, or virtually all, of the elements of the IGA and the\n\nbringing of a lawsuit.\" 8 This office's review of the closed session verbatim recording confirmed\nthat the IGA was the focus of the closed session discussion, but, as discussed further below, there\n\nis no closed session exception or set of exceptions that could encompass all the various aspects\nof negotiating the IGA. Counsel for the Board also argued that Board President Caforio's\nstatement after the closed session about exploring other ways to press its claims for the TIF\n\nmoney from the District \"was a politically polite way of stating that the Board would litigate its\nclaims against the City with respect to the TIF issues.\" 9 The Board' s attorney further argued:\nIn summary, probable litigation, the sale price of real\n\nestate, and the acquisition of a specific parcel of real estate were\ninterwoven together in a discussion which fell squarely within the\n\nscope of Sections 2(c)(5), (6), and (11) of the Act. There should be\nno doubt that the Board properly discussed the litigation and the\n\nIGA in closed session. Any other conclusion would, contrary to\n6Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 2.\n7Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau ( August 8, 2019), at 2.\n8Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3.\n9Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3.\n\n\fMr. Todd Faulkner\n\nOctober 25, 2021\nPage 5\n\nsound public policy, severely shackle the ability of a public body\nto threaten litigation and negotiation of a settlement agreement to\n\navoid that litigation.[10]\nIn addition, the Board asked this office to consider the Circuit Court of Sangamon\nCounty' s reversal of Binding Opinion 17- 004, 11 in which this office concluded that the City of\n\nBloomington City Council held an improper closed session discussion under section 2(c)(11)\nabout terminating its IGA with the Town of Normal because it did not have reasonable grounds\n\nto believe litigation was probable or imminent. In the time since the Board's response, however,\nthe Illinois Appellate Court in City of Bloomington v. Raoul, 2021 IL App ( 4th) 190539, __\n\nN.E.3d __ (2021) overturned the circuit court's decision. The Illinois Appellate Court agreed\nwith this office that the City Council \" did not reasonably believe that litigation was probable or\n\nimminent[,]\" and that even if it did, \"[a] bsent from the closed session was any discussion of legal\ntheories, defenses, claims, or possible approaches to litigation.\" City of Bloomington, 2021 IL\n\nApp (4th) 190539, ¶¶30, 36, __ N.E.3d __.\nSimilarly, here, the closed session verbatim recording reflects that the Board did\nnot have reasonable grounds to believe litigation was probable or imminent. Crucially, the April\n\n23, 2019, meeting marked the end of the tenure of three departing Board members and no\nrelevant agenda item authorized the Board to take action concerning the IGA that evening. A\nthreat of litigation at some point in the future is insufficient to demonstrate that litigation is in\n\nfact probable or imminent under the circumstances. The Board's closed session discussion does\nnot evince that the \" probable or imminent\" threshold had yet been reached, given the next steps\n\nthe Board discussed. Moreover, the closed session contained little to no discussion of legal\ntheories, defenses, claims, or possible approaches to litigation. Thus, the section 2(c)( 11)\n\nexception did not authorize the Board's April 23, 2019, closed session discussion.\nSections 2(c)( 5) and 2(c)( 6) also did not authorize the entire closed session\n\ndiscussion. In particular, the clear and unambiguous language of section 2(c)(6) of OMA\nrestricts a public body from discussing the sale of public property in closed session other than to\n\nset a price. Section 2(c)(5) of OMA is broader in scope, allowing closed session discussions\nconcerning issues involved in the purchase or lease of real property for the use of the public\n\nbody, but neither exception authorizes general discussions regarding the sale of public property.\nSee Ill. Att'y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 (section 2(c)( 6) of\n\nOMA does \" not extend to the discussion of general issues concerning the disposal of publiclyowned property.\").\n\nAlthough the Board analogized this matter to a previous Request for Review\n\n10Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3.\n11Ill. Att'y Gen. Pub. Acc. Op. No. 17-004, issued June 6, 2017.\n\n\fMr. Todd Faulkner\n\nOctober 25, 2021\nPage 6\n\n2014 PAC 30925) for the proposition that \"there are numerous factors and discussion points that\ngo into a board' s decision regarding property all of which are appropriate in closed session so\n\nlong as they relate back to the permitted closed session topic[,]\" 12 the Board's April 23, 2019,\nclosed session discussion did not all relate back to the setting of a price for the sale of real\n\nproperty or the purchase of real property. Additionally, the Board's closed session discussion did\nnot include valuation of real property owned by the District, or a price the District would offer or\n\naccept for that property. The Board did briefly discuss, however, the purchase or lease of real\nproperty, as allowed under section 2(c)( 5). Thus, while that portion of the Board' s April 23,\n\n2019, closed session discussion was not improper, the Board did not properly confine the rest of\nits discussion to the exceptions in OMA for property purchases, sales, or leases.\nAccordingly, this office concludes that the Board improperly discussed matters\n\noutside the scope of the exceptions relied upon to close its April 23, 2019, meeting. To remedy\nthis violation, this office asks that the Board vote to release the relevant portions of the April 23,\n\n2019, closed session verbatim recording and minutes, except for the discrete portion of the\nclosed session verbatim recording concerning a potential property acquisition.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at the\nChicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n58651 o 2c5 proper improper 2c6 improper 2c11 improper sd\n\n12Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed session discussion of an intergovernmental agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58651/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 25, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Todd Faulkner\nFranczek\n\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\n\njtf@franczek.com\nRE: OMA Request for Review – 2019 PAC 58651\nDear\n\nand Mr. Faulkner:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons that follow, the Public Access\n\nBureau concludes that the Board of Education (Board) of Elmhurst Community Unit School\nDistrict 205 (District) improperly discussed certain matters in closed session during its April 23,\n\n2019, meeting, and failed to make a finding that litigation was probable or imminent.\nOn June 21, 2019,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that during its closed session on April 23, 2019, the Board improperly\n\ndiscussed an intergovernmental agreement (IGA) between the District and the City of Elmhurst\nCity). Noting that the Board went into closed session pursuant to sections 2(c)(5), 2(c)(6), and\n\n2(c)(11) of OMA (5 ILCS 120/2(c)(5), (c)(6), (c)(11) (West 2018)),\n\nclaimed that the\n\nsection 2(c)(11) exception was inapplicable because \" it does not appear that the School District\n\nhas explicitly threatened litigation, nor does it appear that litigation is filed, pending, probable, or\nimminent.\" 1 He acknowledged, however, that Board President Kara Caforio publicly stated that\n\nthe Board would explore avenues other than continued negotiation with the City to recoup the\n1 Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nJune 21, 2019).\n\nmoney the Board believed the District was owed. He further acknowledged that during the\nElmhurst City Council's May 6, 2019, meeting, the City's mayor stated that the District was\n\nplanning to sue the City. Yet, he argued, even if litigation was properly determined to be\nprobable or imminent, the Board did not limit its closed session discussion to the strategies,\n\npostures, theories, and consequences of the litigation as required.\nfurther argued that the IGA contained provisions that are unrelated to the\nsale, purchase, or lease of property under sections 2(c)(5) and 2(c)(6), such as payments the City\n\nbelieved were due from the District for a 2004 tax increment financing (TIF) agreement. He\nclaimed that the Board's closed session discussion concerned aspects of the IGA that are\n\nunrelated to the reasons for entering closed session, such as stormwater risk management,\nexpanding or reconfiguring schools, and facility needs.\n\nenclosed a copy of the minutes\n\nof the meeting, a Pioneer Press article about the meeting,2 and the City's April 19, 2019,\nresponse to the District's March 29, 2019, proposed version of the IGA.\nOn June 28, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to the Board and asked it to provide this office with copies of its April 23, 2019, agenda,\nopen and closed session minutes (in draft form if necessary), and closed session verbatim\n\nrecording for this office's confidential review, together with a written response to the allegation\nthat it improperly discussed the IGA during closed session. On August 13, 2019, counsel for the\nBoard provided this office with those materials, including two versions of its written answer: a\n\ncomplete version for this office's confidential review, and a redacted version for forwarding to\n3\n\ndid not submit a reply.\n\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020).\nSection 2(a) of OMA (5 ILCS 120/2(a) (West 2018)) provides that all meetings of\na public body shall be open to the public unless the subject of the meeting falls within one of the\n\nexceptions set out in section 2(c) of OMA. The section 2(c) exceptions are to be \"strictly\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2018).\n\n2 Graydon Megan, Outgoing Elmhurst District 205 Board rejects agreement with city on\nstormwater plan, PIONEER PRESS (May 6, 2019, 4:55 p.m.), https://www.chicagotribune.com/suburbs/elmhurst/ctdob-elmhurfst-jackson-york-stormwater-tl-0509-story.html.\n3 See 5 ILCS 120/3.5(c) (West 2018) (\" The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n\nSections 2(c)(5), 2(c)(6), and 2(c)(11) of OMA allow a public body to enter into\nclosed session to consider:\n5) The purchase or lease of real property for the use of the\n\npublic body, including meetings held for the purpose of discussing\nwhether a particular parcel should be acquired.\n6) The setting of a price for sale or lease of property\n\nowned by the public body.\n\n11) Litigation, when an action against, affecting or on\nbehalf of the particular public body has been filed and is pending\n\nbefore a court or administrative tribunal, or when the public body\nfinds that an action is probable or imminent, in which case the\n\nbasis for the finding shall be recorded and entered into the minutes\nof the closed meeting.\n\nIn its non-confidential response in this matter, the Board argued that it properly\nentered closed session on April 23, 2019, under these three exceptions to the requirement to\n\ndiscuss public business openly. The Board's counsel stated that the IGA under consideration\nwas the culmination of nine months of negotiations between the City and the District following\n\nthe District's threat to sue the City over the City's failure to pay millions of dollars to the District\"\nunder the aforementioned 2004 TIF agreement. 4 He explained that the proposed IGA involved\n\nvarious tradeoffs, including the District's conveyance of easements to the City for stormwater\nmanagement projects, the City's agreement to make certain land improvements, lawsuit waivers\n\nfor both parties for certain matters, and TIF payments from the City to the District. The District\nargued that the City's payments and commitments \" are all a part of the consideration, or 'sale\n\nprice', of the easements to be granted to the City.\"5 The Board explained that it \"viewed the\nCity's April 19 response as a substantial regression from positions taken in the months which led\n\n4 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 1.\n5 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\n\nup to the District's March 29 proposed version of the IGA[,]\" and disputes remained over various\nmatters. 6\nAddressing its use of the section 2(c)(11) exception, the Board asserted that \"[ a] t\n\nthe outset of the closed session, the probable or imminent finding was cryptically made by\nreference to the prior threats to sue the City and is reflected in the relevant portions of the\n\nminutes of the closed session.\" 7 This office's review of the closed session verbatim recording\nconfirmed that the Board did not make a finding that litigation was probable or imminent. On\n\nthat basis alone, the Board did not adhere to section 2(c)(11) of OMA. See Henry v. Anderson,\n356 Ill. App. 3d 952, 957 (4th Dist. 2005) (holding that \" the board violated the Act by failing to\n\nstate, on the record, (1) a finding that litigation was probable or imminent and (2) a basis for such\na finding.\").\nAccording to the Board's attorney, \"[ t]he primary focus of the Board's closed\n\nsession discussion on April 23 was the Board's response to the City's April 19 draft of the IGA.\nInterwoven in that discussion were all, or virtually all, of the elements of the IGA and the\n\nbringing of a lawsuit.\" 8 This office's review of the closed session verbatim recording confirmed\nthat the IGA was the focus of the closed session discussion, but, as discussed further below, there\n\nis no closed session exception or set of exceptions that could encompass all the various aspects\nof negotiating the IGA. Counsel for the Board also argued that Board President Caforio's\nstatement after the closed session about exploring other ways to press its claims for the TIF\n\nmoney from the District \"was a politically polite way of stating that the Board would litigate its\nclaims against the City with respect to the TIF issues.\" 9 The Board's attorney further argued:\nIn summary, probable litigation, the sale price of real\n\nestate, and the acquisition of a specific parcel of real estate were\ninterwoven together in a discussion which fell squarely within the\n\nscope of Sections 2(c)(5), (6), and (11) of the Act. There should be\nno doubt that the Board properly discussed the litigation and the\n\nIGA in closed session. Any other conclusion would, contrary to\n6 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 2.\n7 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 2.\n8 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3.\n9 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\n\nsound public policy, severely shackle the ability of a public body\nto threaten litigation and negotiation of a settlement agreement to\n\navoid that litigation.[10]\nIn addition, the Board asked this office to consider the Circuit Court of Sangamon\nCounty's reversal of Binding Opinion 17- 004, 11 in which this office concluded that the City of\n\nBloomington City Council held an improper closed session discussion under section 2(c)(11)\nabout terminating its IGA with the Town of Normal because it did not have reasonable grounds\n\nto believe litigation was probable or imminent. In the time since the Board's response, however,\nthe Illinois Appellate Court in City of Bloomington v. Raoul, 2021 IL App (4th) 190539, __\n\nN.E.3d __ (2021) overturned the circuit court's decision. The Illinois Appellate Court agreed\nwith this office that the City Council \" did not reasonably believe that litigation was probable or\n\nimminent[,]\" and that even if it did, \"[a] bsent from the closed session was any discussion of legal\ntheories, defenses, claims, or possible approaches to litigation.\" City of Bloomington, 2021 IL\n\nApp (4th) 190539, ¶¶30, 36, __ N.E.3d __.\nSimilarly, here, the closed session verbatim recording reflects that the Board did\nnot have reasonable grounds to believe litigation was probable or imminent. Crucially, the April\n\n23, 2019, meeting marked the end of the tenure of three departing Board members and no\nrelevant agenda item authorized the Board to take action concerning the IGA that evening. A\nthreat of litigation at some point in the future is insufficient to demonstrate that litigation is in\n\nfact probable or imminent under the circumstances. The Board's closed session discussion does\nnot evince that the \" probable or imminent\" threshold had yet been reached, given the next steps\n\nthe Board discussed. Moreover, the closed session contained little to no discussion of legal\ntheories, defenses, claims, or possible approaches to litigation. Thus, the section 2(c)(11)\n\nexception did not authorize the Board's April 23, 2019, closed session discussion.\nSections 2(c)(5) and 2(c)(6) also did not authorize the entire closed session\n\ndiscussion. In particular, the clear and unambiguous language of section 2(c)(6) of OMA\nrestricts a public body from discussing the sale of public property in closed session other than to\n\nset a price. Section 2(c)(5) of OMA is broader in scope, allowing closed session discussions\nconcerning issues involved in the purchase or lease of real property for the use of the public\n\nbody, but neither exception authorizes general discussions regarding the sale of public property.\nSee Ill. Att'y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 (section 2(c)(6) of\n\nOMA does \" not extend to the discussion of general issues concerning the disposal of publiclyowned property.\").\n\nAlthough the Board analogized this matter to a previous Request for Review\n\n10 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\n\n2014 PAC 30925) for the proposition that \"there are numerous factors and discussion points that\ngo into a board's decision regarding property all of which are appropriate in closed session so\n\nlong as they relate back to the permitted closed session topic[,]\" 12 the Board's April 23, 2019,\nclosed session discussion did not all relate back to the setting of a price for the sale of real\n\nproperty or the purchase of real property. Additionally, the Board's closed session discussion did\nnot include valuation of real property owned by the District, or a price the District would offer or\n\naccept for that property. The Board did briefly discuss, however, the purchase or lease of real\nproperty, as allowed under section 2(c)(5). Thus, while that portion of the Board's April 23,\n\n2019, closed session discussion was not improper, the Board did not properly confine the rest of\nits discussion to the exceptions in OMA for property purchases, sales, or leases.\nAccordingly, this office concludes that the Board improperly discussed matters\n\noutside the scope of the exceptions relied upon to close its April 23, 2019, meeting. To remedy\nthis violation, this office asks that the Board vote to release the relevant portions of the April 23,\n\n2019, closed session verbatim recording and minutes, except for the discrete portion of the\nclosed session verbatim recording concerning a potential property acquisition.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at the\nChicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n58651 o 2c5 proper improper 2c6 improper 2c11 improper sd\n\n12 Letter from Todd Faulkner, Franczek, to Josh Jones, Assistant Attorney General, Public Access\nBureau (August 8, 2019), at 3."}
{"id":1309,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-08-12","case_number":null,"request_numbers":["58721"],"title":"Lincoln Elementary SD 156 Board violated OMA by voting on unagendized committee formation","filename":"58721, issued August 12, 2019.pdf","rel_path":null,"word_count":2646,"summary":"The PAC investigated allegations that the Lincoln Elementary School District 156 Board of Education violated the Open Meetings Act by taking final action on items not listed on the agenda and improperly conducting closed sessions. The PAC determined the Board violated OMA regarding the agenda requirements but found no violation regarding the closed session discussion.","plain_summary":"A school board member complained that the Board voted on forming two committees at its May 3, 2019 meeting, even though that item was not listed on the public agenda. The Illinois Attorney General's Public Access Bureau found that the Board violated the Open Meetings Act by taking final action on an item not identified on the agenda for that regular meeting. The Bureau also found that the Board did not violate the Act regarding a closed session discussion at its May 20, 2019 special meeting, but did not further identify the matters discussed because the closed session minutes may still require confidential treatment.","holding":"The Board violated OMA by taking final action on an item not included on its May 3, 2019 meeting agenda.","legal_question":"Whether the Board violated section 2.02(c) of the Open Meetings Act by taking final action on items not identified on the meeting agenda.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Lincoln Elementary School District 156 Board of Education","requesting_party":"Rosalyn Hathorn","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board took final action on the formation of committees that were not listed on the published meeting agenda.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/58721, issued August 12, 2019.pdf","sha256":"3d3e339cdb9e69b512fe7792ac51767a5b2d0ac02f15d281a6c94d4e12783352","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","school board","final action","open meetings act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 12, 2019\n\nVia electronic mail\nThe Honorable Rosalyn Hathorn\nMember\nBoard of Education\n\nLincoln Elementary School District 156\nrth233@aol. com\n\nVia electronic mail\n\nMr. Matthew J. Walters\nHauser, lzzo, Petrarca,\nGleason &\n\nStillman, LLC\n\n[street address redacted for site publication -- see original PDF]\nmwalters@hauserizzo. com\n\nRE: OMA Request for Review —2018 PAC 58721\nDear Ms. Hathorn and Mr. Walters:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Lincoln Elementary School District 156 Board of Education ( Board)\nviolated OMA at its May 3, 2019, meeting by taking final action on item that did not appear on\n\nthe agenda but did not violate OMA in connection with a closed session discussion at its May 20,\n2019, meeting.\nBACKGROUND\n\nOn June 27, 2019, this office received Ms. Rosalyn Hathorn' s Request for Review\nalleging that, among other things, the Board violated section 2. 02( c) of OMA ( 5 ILCS\n\n120/ 2. 02( c) ( West 2018)) during its May 3, 2019, meeting by taking final action on matters that\nwere not identified on the meeting agenda. Specifically, Ms. Hathorn alleged that the agenda did\nnot indicate that the Board would vote on forming a Financial Committee and an Academics &\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South Universiy Ave., Carbondale,\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Rosalyn Hathorn\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 2\n\nTechnology Committee. She also alleged that the Board violated section 2. 02( a) of OMA (5\n\nILCS 120/2.02( a) ( West 2018)) by discussing two policies and another matter' at the May 20,\n\n2019, special meeting when those items did not appear on the agenda. Ms. Hathorn made\n\nadditional allegations concerning OMA in her Request for Review; however, she agreed that the\n\nscope of this review would be limited to the actions of the Board described above at the May 3,\n\n2019, and May 20, 2019, meetings.\n\nOn July 3, 2019, this office sent a copy of the Request for Review to the Board\nand asked that it provide a written response to Ms. Hathorn' s allegations and copies of the\nagendas and minutes of the May 3, 2019, and May 20, 2019, meetings. On July 19, 2019,\n\ncounsel for the Board provided a written answer and the requested materials. On July 23, 2019,\nthis\noffice forwarded a copy of the Board's response to Ms. Hathorn; she replied on July 30,\n2019.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly\nand that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nMay 3, 2019, Meeting\n\nSection• 2. 02( c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal\nthe meeting.\"\nAs noted above, section 2. 02( c) of OMA requires a public body to\ninclude the general subject matter of any final actions that will be taken in the agenda for the\nmeeting. OMA does not define the term \" general subject matter.\" However, the Senate debate\non House Bill No. 4687, which added section 2. 02( c) to OMA as part of Public Act 97- 827,\naction at\n\neffective, January 1, 2013, indicates that the General Assembly intended this provision to ensure\n\nthat\nagendas provide general notice of all matters upon which a public body would be taking\nfinal action:\n\nBecause the discussion of the policies and the other matter occurred during the closed session\n\nportion of the Board' s May 20, 2019, meeting and because it is unclear whether the closed session minutes of that\n\nmeeting\nhave been determined to no longer require confidential treatment pursuant to section 2. 06( d) of OMA ( 5\nILCS 120/ 2. 06( d) ( West 2018)), this\noffice will\n\nnot\n\nfurther\n\nidentify the policies and matter that were discussed. -\n\n\fThe Honorable Rosalyn Hathorn\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 3\n\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what' s going to be discussed so that — that people who\n\nfollow their units of local government know what they' re going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\n\nIn interpreting statutes such as OMA, undefined statutory terms must be afforded\ntheir \" plain,\n\nordinary, and\n\npopular meanings[,]\"\n\nwhich may be gleaned from dictionaries. See,\n\ne. g., Valley Forge Insurance Co. v. Swiderski Electronics, 223 III. 2d 352, 366 ( 2006).\n\nGeneral\" is defined, in relevant part, as \" relating to, determined by, or concerned with main\nelements rather than limited details.\" Merriam -Webster Online Dictionary, http:// www. merriamwebster. com/ dictionary/ general. Additionally, Black' s Law Dictionary defines \" subject matter\"\nas \"[ t] he issue presented for consideration; the thing in which a right or duty has been asserted;\nthe thing in dispute.\" Black' s Law Dictionary ( 11th ed. 2019), available at Westlaw BLACKS.\n\nAccordingly, in light of these definitions and the legislative history behind section 2. 02( c), the\nPublic Access Bureau has previously determined that \" the General Assembly' s use of the term\ngeneral subject matter' signifies that a meeting agenda must set forth the main element( s), rather\n\nthan the specific details, of an item on which the public body intends to take final action.\" Ill.\nAtt' y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5.\nThe agenda for the Board' s May 3, 2019, meeting stated, in relevant part:\nV.\nTab 3)\n\nSeating of School Board\nA. Designate a President Pro Tem &\n\nSecretary Pro Tem\nTab 4)\n\nB. Organizational Board Meeting\nC. IASB Governing Board Representative 121\n\nTab 5)\n\nTab 4 of the Board' s agenda for the organizational board meeting stated:\nI.\n\nPresident Pro Tem calls meeting to order\n\nII.\n\nRoll Call\n\nIII.\n\nSet Length of Term for Officers of Board\n\n2Lincoln Elementary School District # 156, Agenda Item V, Seating of School Board (\n2019).\n\nMay 3,\n\n\fThe Honorable Rosalyn Hathom\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 4\n\nIV.\n\nThe Election of Officers ( officers assume duty immediately\nupon\n\nV.\n\ntheir\n\nelection)\n\nEstablish, Dates, Times, and Places for Regular Board of\n\nEducation Meetings ( Emphasis in original.) 131\nThe minutes for the May 3, 2019, meeting stated:\nMember Ross moved, seconded by Member S. McCloskey to add a\nFinancial Committee and a Academics &\nTechnology Committee\nto the current Board Committees[.]\n\nRoll Call:\n\nAyes: Flex, K. McCloskey, S. McCloskey, Moore and Ross\nNays: None\nAbstain:\n\nNone\n\nMotion Carried. [ 41\n\nThe Board acknowledged that the agenda for the May 3, 2019, meeting did not\ninclude an item stating that the Board would vote on whether to add a Financial Committee and\nan Academics &\nTechnology Committee. The Board, however, argued that the agenda was\nsufficient because it indicated there would be an organizational meeting where creating\nadditional committees would be \" a proper matter to be considered by the Board. i5 The Board\nfurther stated that its policies permit it to create additional committees.\nReferences\n\nto \" Organizational\n\nBoard Meeting,\" \" Set Length of Term for Officers\n\nof Board,\" and \" The Election of Officers\" alone are too vague and imprecise to inform the public\n\nreading the agenda in advance of the Board' s meeting that the Board planned to take action to\ncreate two new committees. Because the May 3, 2019, meeting agenda did not identify the\ngeneral subject matter of that action, this office concludes that the Board violated section 2. 02( c)\nof OMA.\n\nLincoln Elementary School District # I56, Tab 4, Agenda Item V. b., Organizational Board\nMeeting ( May 3, 2019).\nLincoln School District 156, Organizational Board Meeting, May 3, 2019, Minutes 6\nLetter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason &\n\nStillman, LLC, to Matthew\n\nHartman, [ Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General' s Office ( July 19, 2019),\nat\n\n1.\n\n\fThe Honorable Rosalyn Hathorn\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 5\n\nThe Board also asserted that any defects in the agenda should not invalidate the\n\nBoard's action to create the committees, citing section 2.02( a) of OMA. Section 2.02( a) of OMA\nprovides, in pertinent part:\nPublic notice of any special meeting except a meeting held in the\n\nevent of a bona fide emergency, or of any rescheduled regular\n\nmeeting, or of any reconvened meeting, shall be given at least 48\n\nhours before such meeting, which notice shall also include the\n\nagenda for the special, rescheduled, or reconvened meeting, but\n\nthe validity of any action taken bythe public body which is\ngermane to a subject on the agenda shall not be affected by\nother errors or omissions in the agenda. ( Emphasis added.)\n\nThe Board argued that \" the reorganization of the Board, and the election of the Board' s officers is\n\ngermane to the staffing and creation of the committees that [ the] Board felt necessary to govern\n\nthe District.\" 6 However, the above language in section 2. 02( a) upon which the Board relies is\n\nlimited to special, rescheduled, and reconvened meetings. The General Assembly specifically\n\nomitted that condition for errors and omissions in regular meeting agendas. See People v. Smith,\n2016 IL 119659, ¶ 30, 76 N. E. 3d\n1251,\n\n1258 ( 2016) (\"[\n\nW] here the legislature includes particular\n\nlanguage in one section\nof a statute but omits it in another section of the same statute, courts will\nlegislature\n\npresume\n\nthat the\n\nacted\n\nintentionally in the exclusion\n\nor inclusion.\").\n\nThus, this office\n\nrequests that the Board remedy its violation of section 2. 02( c) of OMA by reconsidering its\n\naction\nto add the two committees after properly posting an agenda for the meeting which\nidentifies the general subject matter of that action.\nMay 20, 2019, Meeting\n\nMs. Hathorn also alleged that that the Board violated section 2.02( a) of OMA\n\nwhen it discussed two policies and a separate matter at its May 20, 2019, special meeting that\n\nwere not listed on the agenda for the meeting. Section 2.02( a) states that \"[ t] he requirement of a\nregular meeting agenda shall not preclude the consideration of items not specifically set forth in\nthe agenda.\" The Public Access Bureau has held that a public body is not permitted under\nsection 2. 02( a) ofSee\nOMA\nto discuss matters in open session which are not on the agenda in a\nIll. Att'\nspecial\n\nmeeting.\n\ny Gen. PAC Req. Rev. Ltr. 32604, issued April 9, 2015, at 3. (\"\n\nThe\n\nGeneral Assembly's express provision for consideration of items not on the agenda at a regular\n\nmeeting coupled with its silence concerning consideration of items not on the agenda at a special\n6Letter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason & Stillman, LLC, to Matthew\n\nHartman, [Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General' s Office (July 19, 2019),\n\nat\n\n1.\n\n\fThe Honorable Rosalyn Hathorn\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 6\n\nmeeting\nsignifies that the General Assembly did not intend to allow a public body to consider\nitems that\nare\n\nnot\n\non\n\nthe agenda of a special\n\nmeeting.\")\n\nHowever, the Public Access Bureau has\n\nalso held that a public body is not required to provide notice in its agenda that it will hold a\nclosed session at a meeting. See 111. Att' y Gen. PAC Req. Rev. Ltr. 32669, issued December 18,\n\n2014, at 1 (\" a public body does not need to provide the reasons why it will go into closed session\non\n\na\n\nmeeting agenda in order to hold a closed session\n\nat\n\nthat\n\nmeeting.\").\n\nSimilarly, a public body\n\nis not required to identify the subjects of its closed session discussion on its agenda provided it\n\ndoes not take final action on those items in open session. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n49292, 49360, issued August 30, 2017, at 2.\n\nIn its answer, the Board asserted that the discussions of the items identified by\n\nMs. Hathorn \" took place in the Board's closed session, [ and] the Board disagrees that its actions\neven constitute actual consideration of the matters.\" 7 This office' s review of the closed session\n\nminutes of the May 20, 2019, meeting furnished by Ms. Hathorn and the Board confirm that the\n\ndiscussion took place during the closed session portion of the special meeting. Further, a closed\nsession was specifically listed on the agenda for the May 20, 2019, meeting, and no final action\nconcerning the items discussed in closed session occurred during the open session portion of the\n\nmeeting. Although open session discussion of items not identified on the agenda during a special\nmeeting is not permitted under section 2. 02( a) of OMA, that prohibition does not apply to closed\nsession discussions. To hold otherwise would require a public body holding a closed session in a\nspecial meeting to specifically set forth in its agenda the main elements of each item that would\n\nbe the subject of closed session discussion. Such an interpretation would undermine the intent of\n\nthe General Assembly in creating the limited exceptions that allow a public body to hold\n\ndiscussions outside of the presence of the public. Accordingly, this office concludes that the\nBoard did not violate OMA when it discussed in closed session items that were not on the of its\nMay 20, 2019, special meeting. 8\n\nLetter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason & Stillman, LLC, to Matthew\n\nHartman,\n[ Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General' s Office ( July 19, 2019),\nat 1.\nThe Public Access Counselor is also charged with providing advice and education to the public.\n\n15 ILCS 205/ 7( a), ( c) ( West 2018). In that capacity, this office notes that the topics Ms. Hathorn identified do not\n\nappear to be authorized by the section 2( c)( I) exception ( 5 ILCS 120/2( c)( I) ( West 2018)) that the meeting minutes\nindicate that Board publicly cited and identified as its basis for entering closed session. The Board should be\n\nmindful of its obligation to confine its closed session discussions to topics within the scope of the exception or\nexceptions\n\nthat it relies on to close\n\na\n\nmeeting.\n\n\fhe Honorable Rosalyn Hathorn\n\nMr. Matthew J. Walters\nAugust 12, 2019\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, mhartman@atg. state. il.us, or ( 217) 782- 9054.\n\nThis letter serves to close this file.\n\nVery truly yours,\n\nMAJFT HA TM\n\nAssistant Attorney General\nPublic Access Bureau\n58721\n\no 202a proper\n\n202c improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Final action on committee formation not on agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58721/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 12, 2019\n\nVia electronic mail\nThe Honorable Rosalyn Hathorn\nMember\nBoard of Education\n\nLincoln Elementary School District 156\nrth233@aol. com\n\nVia electronic mail\n\nMr. Matthew J. Walters\nHauser, lzzo, Petrarca,\nGleason &\n\nStillman, LLC\n\n[street address redacted for site publication -- see original PDF]\nmwalters@hauserizzo. com\n\nRE: OMA Request for Review —2018 PAC 58721\nDear Ms. Hathorn and Mr. Walters:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Lincoln Elementary School District 156 Board of Education (Board)\nviolated OMA at its May 3, 2019, meeting by taking final action on item that did not appear on\n\nthe agenda but did not violate OMA in connection with a closed session discussion at its May 20,\n2019, meeting.\nBACKGROUND\n\nOn June 27, 2019, this office received Ms. Rosalyn Hathorn's Request for Review\nalleging that, among other things, the Board violated section 2. 02(c) of OMA (5 ILCS\n\n120/ 2. 02(c) (West 2018)) during its May 3, 2019, meeting by taking final action on matters that\nwere not identified on the meeting agenda. Specifically, Ms. Hathorn alleged that the agenda did\nnot indicate that the Board would vote on forming a Financial Committee and an Academics &\n\nTechnology Committee. She also alleged that the Board violated section 2. 02(a) of OMA (5\n\nILCS 120/2.02(a) (West 2018)) by discussing two policies and another matter' at the May 20,\n\n2019, special meeting when those items did not appear on the agenda. Ms. Hathorn made\n\nadditional allegations concerning OMA in her Request for Review; however, she agreed that the\n\nscope of this review would be limited to the actions of the Board described above at the May 3,\n\n2019, and May 20, 2019, meetings.\n\nOn July 3, 2019, this office sent a copy of the Request for Review to the Board\nand asked that it provide a written response to Ms. Hathorn's allegations and copies of the\nagendas and minutes of the May 3, 2019, and May 20, 2019, meetings. On July 19, 2019,\n\ncounsel for the Board provided a written answer and the requested materials. On July 23, 2019,\nthis\noffice forwarded a copy of the Board's response to Ms. Hathorn; she replied on July 30,\n2019.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly\nand that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nMay 3, 2019, Meeting\n\nSection• 2. 02(c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal\nthe meeting.\"\nAs noted above, section 2. 02(c) of OMA requires a public body to\ninclude the general subject matter of any final actions that will be taken in the agenda for the\nmeeting. OMA does not define the term \" general subject matter.\" However, the Senate debate\non House Bill No. 4687, which added section 2. 02(c) to OMA as part of Public Act 97- 827,\naction at\n\neffective, January 1, 2013, indicates that the General Assembly intended this provision to ensure\n\nthat\nagendas provide general notice of all matters upon which a public body would be taking\nfinal action:\n\nBecause the discussion of the policies and the other matter occurred during the closed session\n\nportion of the Board's May 20, 2019, meeting and because it is unclear whether the closed session minutes of that\n\nmeeting\nhave been determined to no longer require confidential treatment pursuant to section 2. 06(d) of OMA (5\nILCS 120/ 2. 06(d) (West 2018)), this\n\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what's going to be discussed so that — that people who\n\nfollow their units of local government know what they' re going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\n\nIn interpreting statutes such as OMA, undefined statutory terms must be afforded\ntheir \" plain,\n\nordinary, and\n\npopular meanings[,]\"\n\nwhich may be gleaned from dictionaries. See,\n\ne. g., Valley Forge Insurance Co. v. Swiderski Electronics, 223 III. 2d 352, 366 (2006).\n\nGeneral\" is defined, in relevant part, as \" relating to, determined by, or concerned with main\nelements rather than limited details.\" Merriam -Webster Online Dictionary, http:// www. merriamwebster. com/ dictionary/ general. Additionally, Black's Law Dictionary defines \" subject matter\"\nas \"[ t] he issue presented for consideration; the thing in which a right or duty has been asserted;\nthe thing in dispute.\" Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS.\n\nAccordingly, in light of these definitions and the legislative history behind section 2. 02(c), the\nPublic Access Bureau has previously determined that \" the General Assembly's use of the term\ngeneral subject matter' signifies that a meeting agenda must set forth the main element(s), rather\n\nthan the specific details, of an item on which the public body intends to take final action.\" Ill.\nAtt' y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5.\nThe agenda for the Board's May 3, 2019, meeting stated, in relevant part:\nV.\nTab 3)\n\nSeating of School Board\nA. Designate a President Pro Tem &\n\nSecretary Pro Tem\nTab 4)\n\nB. Organizational Board Meeting\nC. IASB Governing Board Representative 121\n\nTab 5)\n\nTab 4 of the Board's agenda for the organizational board meeting stated:\nI.\n\nPresident Pro Tem calls meeting to order\n\nII.\n\nRoll Call\n\nIV.\n\nThe Election of Officers (officers assume duty immediately\nupon\n\nV.\n\ntheir\n\nelection)\n\nEstablish, Dates, Times, and Places for Regular Board of\n\nEducation Meetings (Emphasis in original.) 131\nThe minutes for the May 3, 2019, meeting stated:\nMember Ross moved, seconded by Member S. McCloskey to add a\nFinancial Committee and a Academics &\nTechnology Committee\nto the current Board Committees[.]\n\nRoll Call:\n\nAyes: Flex, K. McCloskey, S. McCloskey, Moore and Ross\nNays: None\nAbstain:\n\nNone\n\nMotion Carried. [ 41\n\nThe Board acknowledged that the agenda for the May 3, 2019, meeting did not\ninclude an item stating that the Board would vote on whether to add a Financial Committee and\nan Academics &\nTechnology Committee. The Board, however, argued that the agenda was\nsufficient because it indicated there would be an organizational meeting where creating\nadditional committees would be \" a proper matter to be considered by the Board. i5 The Board\nfurther stated that its policies permit it to create additional committees.\nReferences\n\nto \" Organizational\n\nBoard Meeting,\" \" Set Length of Term for Officers\n\nof Board,\" and \" The Election of Officers\" alone are too vague and imprecise to inform the public\n\nreading the agenda in advance of the Board's meeting that the Board planned to take action to\ncreate two new committees. Because the May 3, 2019, meeting agenda did not identify the\ngeneral subject matter of that action, this office concludes that the Board violated section 2. 02(c)\nof OMA.\n\nLincoln Elementary School District # I56, Tab 4, Agenda Item V. b., Organizational Board\nMeeting (May 3, 2019).\nLincoln School District 156, Organizational Board Meeting, May 3, 2019, Minutes 6\nLetter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason &\n\nStillman, LLC, to Matthew\n\nHartman, [ Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General's Office (July 19, 2019),\n\nThe Board also asserted that any defects in the agenda should not invalidate the\n\nBoard's action to create the committees, citing section 2.02(a) of OMA. Section 2.02(a) of OMA\nprovides, in pertinent part:\nPublic notice of any special meeting except a meeting held in the\n\nevent of a bona fide emergency, or of any rescheduled regular\n\nmeeting, or of any reconvened meeting, shall be given at least 48\n\nhours before such meeting, which notice shall also include the\n\nagenda for the special, rescheduled, or reconvened meeting, but\n\nthe validity of any action taken bythe public body which is\ngermane to a subject on the agenda shall not be affected by\nother errors or omissions in the agenda. (Emphasis added.)\n\nThe Board argued that \" the reorganization of the Board, and the election of the Board's officers is\n\ngermane to the staffing and creation of the committees that [ the] Board felt necessary to govern\n\nthe District.\" 6 However, the above language in section 2. 02(a) upon which the Board relies is\n\nlimited to special, rescheduled, and reconvened meetings. The General Assembly specifically\n\nomitted that condition for errors and omissions in regular meeting agendas. See People v. Smith,\n2016 IL 119659, ¶ 30, 76 N. E. 3d\n1251,\n\n1258 (2016) (\"[\n\nW] here the legislature includes particular\n\nlanguage in one section\nof a statute but omits it in another section of the same statute, courts will\nlegislature\n\npresume\n\nthat the\n\nacted\n\nintentionally in the exclusion\n\nor inclusion.\").\n\nThus, this office\n\nrequests that the Board remedy its violation of section 2. 02(c) of OMA by reconsidering its\n\naction\nto add the two committees after properly posting an agenda for the meeting which\nidentifies the general subject matter of that action.\nMay 20, 2019, Meeting\n\nMs. Hathorn also alleged that that the Board violated section 2.02(a) of OMA\n\nwhen it discussed two policies and a separate matter at its May 20, 2019, special meeting that\n\nwere not listed on the agenda for the meeting. Section 2.02(a) states that \"[ t] he requirement of a\nregular meeting agenda shall not preclude the consideration of items not specifically set forth in\nthe agenda.\" The Public Access Bureau has held that a public body is not permitted under\nsection 2. 02(a) ofSee\nOMA\nto discuss matters in open session which are not on the agenda in a\nIll. Att'\nspecial\n\nmeeting.\n\ny Gen. PAC Req. Rev. Ltr. 32604, issued April 9, 2015, at 3. (\"\n\nThe\n\nGeneral Assembly's express provision for consideration of items not on the agenda at a regular\n\nmeeting coupled with its silence concerning consideration of items not on the agenda at a special\n6 Letter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason & Stillman, LLC, to Matthew\n\nHartman, [Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General's Office (July 19, 2019),\n\nmeeting\nsignifies that the General Assembly did not intend to allow a public body to consider\nitems that\nare\n\nnot\n\non\n\nthe agenda of a special\n\nmeeting.\")\n\nHowever, the Public Access Bureau has\n\nalso held that a public body is not required to provide notice in its agenda that it will hold a\nclosed session at a meeting. See 111. Att' y Gen. PAC Req. Rev. Ltr. 32669, issued December 18,\n\n2014, at 1 (\" a public body does not need to provide the reasons why it will go into closed session\non\n\na\n\nmeeting agenda in order to hold a closed session\n\nat\n\nthat\n\nmeeting.\").\n\nSimilarly, a public body\n\nis not required to identify the subjects of its closed session discussion on its agenda provided it\n\ndoes not take final action on those items in open session. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n49292, 49360, issued August 30, 2017, at 2.\n\nIn its answer, the Board asserted that the discussions of the items identified by\n\nMs. Hathorn \" took place in the Board's closed session, [ and] the Board disagrees that its actions\neven constitute actual consideration of the matters.\" 7 This office's review of the closed session\n\nminutes of the May 20, 2019, meeting furnished by Ms. Hathorn and the Board confirm that the\n\ndiscussion took place during the closed session portion of the special meeting. Further, a closed\nsession was specifically listed on the agenda for the May 20, 2019, meeting, and no final action\nconcerning the items discussed in closed session occurred during the open session portion of the\n\nmeeting. Although open session discussion of items not identified on the agenda during a special\nmeeting is not permitted under section 2. 02(a) of OMA, that prohibition does not apply to closed\nsession discussions. To hold otherwise would require a public body holding a closed session in a\nspecial meeting to specifically set forth in its agenda the main elements of each item that would\n\nbe the subject of closed session discussion. Such an interpretation would undermine the intent of\n\nthe General Assembly in creating the limited exceptions that allow a public body to hold\n\ndiscussions outside of the presence of the public. Accordingly, this office concludes that the\nBoard did not violate OMA when it discussed in closed session items that were not on the of its\nMay 20, 2019, special meeting. 8\n\nLetter from Matthew J. Walters, Hauser, Izzo, Petrarca, Gleason & Stillman, LLC, to Matthew\n\nHartman,\n[ Assistant Attorney General], [ Public Access Bureau], Illinois Attorney General's Office (July 19, 2019),\nat 1.\nThe Public Access Counselor is also charged with providing advice and education to the public.\n\n15 ILCS 205/ 7(a), (c) (West 2018). In that capacity, this office notes that the topics Ms. Hathorn identified do not\n\nappear to be authorized by the section 2(c)(I) exception (5 ILCS 120/2(c)(I) (West 2018)) that the meeting minutes\nindicate that Board publicly cited and identified as its basis for entering closed session. The Board should be\n\nmindful of its obligation to confine its closed session discussions to topics within the scope of the exception or\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, mhartman@atg. state. il.us, or (217) 782- 9054.\n\nThis letter serves to close this file.\n\nVery truly yours,\n\nMAJFT HA TM\n\nAssistant Attorney General\nPublic Access Bureau\n58721\n\no 202a proper\n\n202c improper sd"}
{"id":1311,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-09-12","case_number":null,"request_numbers":["58725"],"title":"Algonquin Township Board did not violate OMA by discussing announcements under general agenda item","filename":"58725, issued September 12, 2019.pdf","rel_path":null,"word_count":896,"summary":"The requester alleged that the Algonquin Township Board of Trustees violated the Open Meetings Act by discussing topics not specifically listed on the agenda under 'Any other business.' The PAC determined that the board members only made simple announcements rather than engaging in deliberative discussion, and therefore no violation occurred.","plain_summary":"A citizen complained that a township board discussed topics during a meeting that weren't properly listed on the meeting agenda. The Attorney General's office reviewed the meeting and found that the board members were only making brief announcements, not actually debating or deciding on new business. Because these were just announcements, the board did not break the law.","holding":"The Algonquin Township Board of Trustees did not violate the Open Meetings Act because the discussions in question were mere announcements rather than the consideration of items requiring specific agenda notice.","legal_question":"Whether a public body violates the Open Meetings Act by discussing topics under a general 'any other business' agenda item when those topics consist only of individual announcements rather than deliberative discussion.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Algonquin Township Board of Trustees","requesting_party":"Mr. John Kraft","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint concerned whether the board improperly discussed items not specifically listed on the meeting agenda.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/58725, issued September 12, 2019.pdf","sha256":"916316c6f9953e2a25f711ce7a0dadcf3984577363b76ae61c9241cbddbe642b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","open meetings act","township board","public notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\n12, 2019\n\nVia electronic mail\n\nMr. John Kraft\n\njohn@illinoisleaks.com\nVia electronic mail\n\nMr. James P. Kelly\nMatuszewich &\n\nKelly, LLP\n\nOBO Algonquin Township\n[street address redacted for site publication -- see original PDF]\njpkelly@mkm- law. com\nRE: OMA Request for Review — 2019 PAC 58725\n\nDear Mr. Kraft and Mr. Kelly:\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nAct ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Algonquin Township Board of Trustees ( Board) did not violate the\n\nrequirements of OMA in connection with its June 26, 2019, special meeting.\nOn June 26, 2019, Mr. John Kraft submitted this Request for Review to the Public\n\nAccess Bureau alleging that the Board violated OMA during its June 26, 2019, special meeting\nby discussing subjects that were not specifically set forth under the agenda item \" Any other\n\nbusiness to come before the Board.\" 1 On July 9, 2019, this office sent a copy of the Request for\nReview to the Board and asked it to provide this office with a response to the allegations made in\nthe Request for Review and copies of the notice, agenda, and minutes for the June 26, 2019,\n\nAlgonquin Township Board, Agenda Item ( unnumbered), Any other business to come before the\nBoard ( June 26, 2019).\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601\n\nSouth\n\nUniversity\n\nAve., Carbondale,\n\nIllinois\n\n62901 • (\n\n618) 529- 6400 •\n\nTTY: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMr. John Kraft\n\nMr. James P. Kelly\nSeptember\n\n12, 2019\n\nPage 2\n\nspecial meeting.\nsubmit\n\nOn August 9, 2019, the Board furnished a written response.\n\nMr. Kraft did not\n\na reply.\n\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2018).\nSection 2. 02( a) of OMA\n\nSection 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2018)) provides, in relevant\n\npart, that \"[ p] ublic notice of any special meeting except a meeting held in the event of a bona\n\nfide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be\ngiven at least 48 hours before such meeting, which notice shall also include the agenda for the\nspecial,\n\nrescheduled, or reconvened meeting[.]\"\n\nSection 2. 02( a) further states that \"[ t] he\n\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nEmphasis added.) Given this language, the Public Access\nspecifically set forth in the agenda.\" (\n\nBureau has determined that, during special meetings, OMA does not permit a public body to\n\ndiscuss, topics that were not listed on the agenda. See, for example, Ill. Att'y Gen. PAC Req.\nRev. Ltr. 32604, issued April 9, 2015, at 3 (\" The General Assembly' s express provision for\nconsideration of items not on the agenda at a regular meeting coupled with its silence concerning\nconsideration of items not on the agenda at a special meeting signifies that the General Assembly\ndid not intend to allow a public body to consider items that are not on the agenda of a special\nmeeting.\")\n\nThe Board' s response to this office acknowledged that when asked by the chair if\nthere was any additional business, each of its three trustees made statements, but noted that\nall] of these announcements were not in the form of discussions between the Board members,\n\nbut rather were ad hoc public service announcements. There were no motions made or votes\ntaken regarding any of the announcements.\" 2\nThis office' s review of the June 26, 2019, special meeting recording3 confirmed\nthat each of the trustees made announcements concerning various upcoming community events\nand the status of applications for Board vacancies.\n\nThe trustees did not engage in deliberative\n\ndiscussions on any of the topics presented, but rather presented their announcements\n2Letter from James P. Kelly, Matuszewich & Kelly, LLP, to Christopher R. Boggs, Assistant\nAttorney General, Public Access Bureau ( August 9, 2019), at 1.\n\nAlgonquin Township Board, Special Meeting, June 26, 2019, Video File, available at\nhttps:// www. youtube.\n\ncomiwatch? v= gYepO_\n\nPEKKg.\n\n\fr.John Kraft\n\nMr. James P. Kelly\nSeptember 12, 2019\nPage 3\n\nindividually. Such simple announcements do not rise to the level of \"the consideration of items\"\nunder section 2. 02( a) of OMA. Accordingly, under these circumstances, the Public Access\nBureau concludes that the Board did not violate OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 785- 7438 or cboggs@atg. state. il. us. This letter serves to close this matter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\n\nSupervising Attorney\nPublic\n\n58725\n\no\n\n202 notice\n\nproper\n\nmun\n\nAccess\n\nBureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Discussion of items under \"any other business\"","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58725/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\n12, 2019\n\nVia electronic mail\n\nMr. John Kraft\n\njohn@illinoisleaks.com\nVia electronic mail\n\nMr. James P. Kelly\nMatuszewich &\n\nKelly, LLP\n\nOBO Algonquin Township\n[street address redacted for site publication -- see original PDF]\njpkelly@mkm- law. com\nRE: OMA Request for Review — 2019 PAC 58725\n\nDear Mr. Kraft and Mr. Kelly:\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Algonquin Township Board of Trustees (Board) did not violate the\n\nrequirements of OMA in connection with its June 26, 2019, special meeting.\nOn June 26, 2019, Mr. John Kraft submitted this Request for Review to the Public\n\nAccess Bureau alleging that the Board violated OMA during its June 26, 2019, special meeting\nby discussing subjects that were not specifically set forth under the agenda item \" Any other\n\nbusiness to come before the Board.\" 1 On July 9, 2019, this office sent a copy of the Request for\nReview to the Board and asked it to provide this office with a response to the allegations made in\nthe Request for Review and copies of the notice, agenda, and minutes for the June 26, 2019,\n\nAlgonquin Township Board, Agenda Item (unnumbered), Any other business to come before the\nBoard (June 26, 2019).\n\nspecial meeting.\nsubmit\n\nOn August 9, 2019, the Board furnished a written response.\n\nMr. Kraft did not\n\na reply.\n\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2018).\nSection 2. 02(a) of OMA\n\nSection 2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2018)) provides, in relevant\n\npart, that \"[ p] ublic notice of any special meeting except a meeting held in the event of a bona\n\nfide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be\ngiven at least 48 hours before such meeting, which notice shall also include the agenda for the\nspecial,\n\nrescheduled, or reconvened meeting[.]\"\n\nSection 2. 02(a) further states that \"[ t] he\n\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nEmphasis added.) Given this language, the Public Access\nspecifically set forth in the agenda.\" (Bureau has determined that, during special meetings, OMA does not permit a public body to\n\ndiscuss, topics that were not listed on the agenda. See, for example, Ill. Att'y Gen. PAC Req.\nRev. Ltr. 32604, issued April 9, 2015, at 3 (\" The General Assembly's express provision for\nconsideration of items not on the agenda at a regular meeting coupled with its silence concerning\nconsideration of items not on the agenda at a special meeting signifies that the General Assembly\ndid not intend to allow a public body to consider items that are not on the agenda of a special\nmeeting.\")\n\nThe Board's response to this office acknowledged that when asked by the chair if\nthere was any additional business, each of its three trustees made statements, but noted that\nall] of these announcements were not in the form of discussions between the Board members,\n\nbut rather were ad hoc public service announcements. There were no motions made or votes\ntaken regarding any of the announcements.\" 2\nThis office's review of the June 26, 2019, special meeting recording3 confirmed\nthat each of the trustees made announcements concerning various upcoming community events\nand the status of applications for Board vacancies.\n\nThe trustees did not engage in deliberative\n\ndiscussions on any of the topics presented, but rather presented their announcements\n2 Letter from James P. Kelly, Matuszewich & Kelly, LLP, to Christopher R. Boggs, Assistant\nAttorney General, Public Access Bureau (August 9, 2019), at 1.\n\nindividually. Such simple announcements do not rise to the level of \"the consideration of items\"\nunder section 2. 02(a) of OMA. Accordingly, under these circumstances, the Public Access\nBureau concludes that the Board did not violate OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 785- 7438 or cboggs@atg. state. il. us. This letter serves to close this matter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\n\nSupervising Attorney\nPublic\n\n58725\n\no\n\n202 notice\n\nproper\n\nmun\n\nAccess\n\nBureau"}
{"id":1312,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-08-05","case_number":null,"request_numbers":["59095"],"title":"Kankakee City Council did not violate OMA with lawsuit settlement recital","filename":"59095, issued August 5, 2019.pdf","rel_path":null,"word_count":1259,"summary":"The requester alleged that the Kankakee City Council violated the Open Meetings Act by failing to provide a sufficient public recital before taking final action on a settlement agreement. The PAC determined that the recital provided was legally sufficient under the applicable standard and closed the file.","plain_summary":"A citizen complained that the Kankakee City Council didn't explain a legal settlement clearly enough to the public before voting on it during a meeting. The Attorney General's office reviewed the video of the meeting and decided that the Council provided enough information to meet the legal requirements of the Open Meetings Act. As a result, the office found no violation and closed the case.","holding":"The PAC determined that the City Council did not violate section 2(e) of the Open Meetings Act because the public recital provided was sufficient to inform the public of the nature of the matter being considered.","legal_question":"Whether the City Council's public recital regarding the settlement of a lawsuit satisfied the requirements of section 2(e) of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City Council of the City of Kankakee","requesting_party":"John Kraft","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of a public recital provided by a city council prior to taking final action on a legal settlement.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/59095, issued August 5, 2019.pdf","sha256":"272cb76936db7ac50dc1c8f5376610eb392688c29daed3b361b85955a5cb0c18","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public recital","city council","open meetings act","transparency","settlement agreement"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 5, 2019\n\nVia electronic mail\nMr. John Kraft\n\njohn@illinoisleaks. com\n\nRE: OMA Request for Review —2019 PAC 59095\nDear Mr. Kraft:\n\nThis determination is issued pursuant to section 3. 5( b) of the Open Meetings Act\nFor the reasons that follow the Public Access Bureau\n\nOMA) ( 5 ILCS 120/ 3. 5( b) ( West 2018)).\n\nhas determined that this Request for Review is unfounded.\n\nYour Request for Review alleged that the City Council of the City of Kankakee\nCouncil) violated section 2( e) of the Open Meetings Act (OMA) (5 ILCS 120/ 2( e) ( West 2018),\n\nas amended by Public Act 101- 031, effective June 28, 2019) during a Council meeting held on\nJuly 15, 2019, \" by their failure to provide any public recital.\"'\nSection 2( e) of OMA provides, in pertinent part, that \"[ f]ina! action shall be\n\npreceded by a public recital of the nature of the matter being considered and other information\nthat will inform the public of the business being conducted.\"\n\nIn support of your allegation that\n\nthe Council violated this provision, you cite Allen v. Clark County Park Dist. Bd. of Com' rs,\n\n2016 IL App ( 4th) 150963, 67 N.E. 3d 536 ( 4th Dist 2016). In Allen, the court held that, although\nit was \" unsure precisely what standard of specificity is required of a public recital,\" the public\nrecital \" approval of lease rates\" and \" approval for the revised covenants\" was insufficient\n\nbecause the recital did not sufficiently inform the public of the nature of the matter being\nconsidered.\n\nAllen,\n\n2016 IL App ( 4th) 150963, ¶¶\n\n29- 30, 67 N. E. 3d at 541.\n\nThe court\n\nemphasized that \"[ t] he public was uninformed of what was being leased. Was it canoes? Was it\n\nE- mail from John Kraft to AG PAC ( July 26, 2019).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South\n\nUniversity Ave., Carbondale.\n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMr. John Kraft\nAugust 5, 2019\nPage 2\n\ncamping equipment? Was it real property being developed into a housing subdivision? Who\nknows?\"\n\nAllen, 2016 IL App ( 4th) 150963, ¶ 30, 67 N. E. 3d at 541.\nSubsequently, in Board of Education of Springfield School District No. 186 v.\n\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 ( 2017), the Illinois Supreme Court\nestablished the type of information that is required for an adequate public recital. The Court held\nthat \" the recital must announce the nature of the matter under consideration, with sufficient detail\n\nto identify the particular transaction or issue, but need not provide an explanation of its terms or\nits significance.\" Springfield School District, 2017 IL 120343, ¶ 64, 77 N. E. 3d at 636. In that\ncase, a school board's recital of a separation agreement with its superintendent consisted of the\n\nschool board president stating that the board was considering an agenda item for \" approval of a\nresolution\n\nregarding the separation\n\nagreement[ ]\"\n\nas well as reciting the text of the resolution\n\nitself: \"' The Board President recommends\n\nthat the Board of Education of Springfield School\nDistrict No. 186 vote to approve the separation agreement and release between Dr. Walter\nMilton, Jr., and the Board\n\nof Education.\"'\n\nSpringfield School District, 2017 IL 120343, ¶ 81, 77\n\nN. E. 3d at 638. The Court concluded that the school board' s public recital sufficiently \" recited\nthe general nature of the matter under consideration— a separation agreement and release— and\n\nspecific detail sufficient to identify the particular transaction— the separation agreement was\nbetween Dr. Milton and the Board.\" Springfield School District, 2017 IL 120343, ¶ 83, 77\nN. E. 3d at 638.\n\nThe court also\n\nclarified: \"\n\nBecause we agree with the Board that identifying key\n\nterms would be time consuming and impractical, we reject any suggestion that a public recital of\n\nkey terms' is required. A public body may choose to provide such information in its recital at the\nopen\n\nmeeting but is not compelled to do so by section 2( e).\"\n\nSpringfield School District, 2017 IL\n\n120343, ¶ 61, 77 N.E. 3d at 635- 36\n\nThis office has reviewed the relevant portions of the video recordings of the July\n\n15, 2019, Council meeting as well as the agenda for that meeting. The recording establishes that\nin announcing that the Council was entering executive session, Mayor Wells -Armstrong stated\nthat \" we will be addressing * * *\npending and imminent litigation for the approval of a settlement\n\nregarding Fonder versus Martinez.\" 2 Agenda item 15( A) for the July 15, 2019, Council meeting\nlisted, under action resulting from executive session, the \" APPROVAL OF SETTLEMENT\nREGARDING FONDER VS. MARTINEZ. i3 The post -executive session video of the meeting\n\nestablishes that Mayor Wells -Armstrong informed the public after the closed session that \" we do\n\nCity Council of the City of Kankakee, Meeting, July 15, 2019, at 1: 05: 49 — 1: 06: 10 ( Council\nMeeting 7- 15- 19 Kankakee City Council Meeting Broadcasted 7/ 15/ 19 6: 58pm - 7/ 15/ 19 8: 05pm), video available\nat https:// citykankakee- il. gov/ chambervideo.php.\nCity Council of the City of Kankakee, Meeting, Agenda, item 15( A) ( July 15, 2019), available at\nhttps:// citykankakee- il. gov/ perch/ resources/ 7- 15- 19- agenda. pdf.\n\n\fAugust 5, 2019\nPage 3\n\nhave action resulting from the executive session under item A: approval of the settlement\nregarding Fonder versus Martinez. i4 The Council then voted to approve the settlement.\n\nAs discussed above, to comply with the public recital requirements of section 2( e)\nof OMA, a public body only must recite the nature of the matter under consideration with\n\nsufficient detail to identify the particular transaction. A review of the video recording of the July\n15, 2019, meeting establishes that the Council announced the nature of the matter under\nconsideration—\n\nthe particular\n\napproval of a settlement. The Council also provided detail sufficient to identify\n\ntransaction—\n\nthe settlement of Fonder v. Martinez. Although additional\n\ninformation concerning the terms of the settlement and the nature of the underlying dispute\nwould have increased transparency and better informed the public of the nature of the action\n\nbeing taken, based on the standard articulated in Springfield School District this office is unable\nto conclude that the Council violated the requirements of section 2( e) of OMA.\n\nAccordingly, this office has determined that no further action is warranted in this\nmatter. This file is closed. Please contact me at ( 312) 814- 5201 or the Chicago address listed on\nthe first page of this letter if you have questions.\n\nVery t\n\n1 your\n\nIE ST\n\nINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n59095\n\ncc:\n\no unf mun\n\nVia electronic mail\n\nThe Honorable Chasity Wells -Armstrong\nMayor\n\nCity of Kankakee\n304 South\n\nIndiana Avenue\n\nKankakee Illinois. 60901\nmayor@citykankakee-\n\nil. gov\n\nCity Council of the City of Kankakee, Meeting, July 15, 2019, at 00: 00: 27 — 00: 01: 16 ( Council\nMeeting 7- 15- 19 Resume from Ex Session Broadcasted 7/ 15/ 19 8: 23pm - 7/ 15/ 19 8: 37pm) video available at\nhttps:// citykankakee-\n\nil. gov/ chambervideo.\n\nphp.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's public recital on a legal settlement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59095/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nAugust 5, 2019\n\nVia electronic mail\nMr. John Kraft\n\njohn@illinoisleaks. com\n\nRE: OMA Request for Review —2019 PAC 59095\nDear Mr. Kraft:\n\nThis determination is issued pursuant to section 3. 5(b) of the Open Meetings Act\nFor the reasons that follow the Public Access Bureau\n\nOMA) (5 ILCS 120/ 3. 5(b) (West 2018)).\n\nhas determined that this Request for Review is unfounded.\n\nYour Request for Review alleged that the City Council of the City of Kankakee\nCouncil) violated section 2(e) of the Open Meetings Act (OMA) (5 ILCS 120/ 2(e) (West 2018),\n\nas amended by Public Act 101- 031, effective June 28, 2019) during a Council meeting held on\nJuly 15, 2019, \" by their failure to provide any public recital.\"'\nSection 2(e) of OMA provides, in pertinent part, that \"[ f]ina! action shall be\n\npreceded by a public recital of the nature of the matter being considered and other information\nthat will inform the public of the business being conducted.\"\n\nIn support of your allegation that\n\nthe Council violated this provision, you cite Allen v. Clark County Park Dist. Bd. of Com' rs,\n\n2016 IL App (4th) 150963, 67 N.E. 3d 536 (4th Dist 2016). In Allen, the court held that, although\nit was \" unsure precisely what standard of specificity is required of a public recital,\" the public\nrecital \" approval of lease rates\" and \" approval for the revised covenants\" was insufficient\n\nbecause the recital did not sufficiently inform the public of the nature of the matter being\nconsidered.\n\nAllen,\n\n2016 IL App (4th) 150963, ¶¶\n\n29- 30, 67 N. E. 3d at 541.\n\nThe court\n\nemphasized that \"[ t] he public was uninformed of what was being leased. Was it canoes? Was it\n\nE- mail from John Kraft to AG PAC (July 26, 2019).\n\ncamping equipment? Was it real property being developed into a housing subdivision? Who\nknows?\"\n\nAllen, 2016 IL App (4th) 150963, ¶ 30, 67 N. E. 3d at 541.\nSubsequently, in Board of Education of Springfield School District No. 186 v.\n\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 (2017), the Illinois Supreme Court\nestablished the type of information that is required for an adequate public recital. The Court held\nthat \" the recital must announce the nature of the matter under consideration, with sufficient detail\n\nto identify the particular transaction or issue, but need not provide an explanation of its terms or\nits significance.\" Springfield School District, 2017 IL 120343, ¶ 64, 77 N. E. 3d at 636. In that\ncase, a school board's recital of a separation agreement with its superintendent consisted of the\n\nschool board president stating that the board was considering an agenda item for \" approval of a\nresolution\n\nregarding the separation\n\nagreement[ ]\"\n\nas well as reciting the text of the resolution\n\nitself: \"' The Board President recommends\n\nthat the Board of Education of Springfield School\nDistrict No. 186 vote to approve the separation agreement and release between Dr. Walter\nMilton, Jr., and the Board\n\nof Education.\"'\n\nSpringfield School District, 2017 IL 120343, ¶ 81, 77\n\nN. E. 3d at 638. The Court concluded that the school board's public recital sufficiently \" recited\nthe general nature of the matter under consideration— a separation agreement and release— and\n\nspecific detail sufficient to identify the particular transaction— the separation agreement was\nbetween Dr. Milton and the Board.\" Springfield School District, 2017 IL 120343, ¶ 83, 77\nN. E. 3d at 638.\n\nThe court also\n\nclarified: \"\n\nBecause we agree with the Board that identifying key\n\nterms would be time consuming and impractical, we reject any suggestion that a public recital of\n\nkey terms' is required. A public body may choose to provide such information in its recital at the\nopen\n\nmeeting but is not compelled to do so by section 2(e).\"\n\nSpringfield School District, 2017 IL\n\n120343, ¶ 61, 77 N.E. 3d at 635- 36\n\nThis office has reviewed the relevant portions of the video recordings of the July\n\n15, 2019, Council meeting as well as the agenda for that meeting. The recording establishes that\nin announcing that the Council was entering executive session, Mayor Wells -Armstrong stated\nthat \" we will be addressing * * *\npending and imminent litigation for the approval of a settlement\n\nregarding Fonder versus Martinez.\" 2 Agenda item 15(A) for the July 15, 2019, Council meeting\nlisted, under action resulting from executive session, the \" APPROVAL OF SETTLEMENT\nREGARDING FONDER VS. MARTINEZ. i3 The post -executive session video of the meeting\n\nestablishes that Mayor Wells -Armstrong informed the public after the closed session that \" we do\n\nCity Council of the City of Kankakee, Meeting, July 15, 2019, at 1: 05: 49 — 1: 06: 10 (Council\nMeeting 7- 15- 19 Kankakee City Council Meeting Broadcasted 7/ 15/ 19 6: 58pm - 7/ 15/ 19 8: 05pm), video available\nat https:// citykankakee- il. gov/ chambervideo.php.\nCity Council of the City of Kankakee, Meeting, Agenda, item 15(A) (July 15, 2019), available at\n\nhave action resulting from the executive session under item A: approval of the settlement\nregarding Fonder versus Martinez. i4 The Council then voted to approve the settlement.\n\nAs discussed above, to comply with the public recital requirements of section 2(e)\nof OMA, a public body only must recite the nature of the matter under consideration with\n\nsufficient detail to identify the particular transaction. A review of the video recording of the July\n15, 2019, meeting establishes that the Council announced the nature of the matter under\nconsideration—\n\nthe particular\n\napproval of a settlement. The Council also provided detail sufficient to identify\n\ntransaction—\n\nthe settlement of Fonder v. Martinez. Although additional\n\ninformation concerning the terms of the settlement and the nature of the underlying dispute\nwould have increased transparency and better informed the public of the nature of the action\n\nbeing taken, based on the standard articulated in Springfield School District this office is unable\nto conclude that the Council violated the requirements of section 2(e) of OMA.\n\nAccordingly, this office has determined that no further action is warranted in this\nmatter. This file is closed. Please contact me at (312) 814- 5201 or the Chicago address listed on\nthe first page of this letter if you have questions.\n\nVery t\n\n1 your\n\nIE ST\n\nINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n59095\n\ncc:\n\no unf mun\n\nVia electronic mail\n\nThe Honorable Chasity Wells -Armstrong\nMayor\n\nCity of Kankakee\n304 South\n\nIndiana Avenue\n\nKankakee Illinois. 60901\nmayor@citykankakee-\n\nil. gov\n\nCity Council of the City of Kankakee, Meeting, July 15, 2019, at 00: 00: 27 — 00: 01: 16 (Council\nMeeting 7- 15- 19 Resume from Ex Session Broadcasted 7/ 15/ 19 8: 23pm - 7/ 15/ 19 8: 37pm) video available at\nhttps:// citykankakee-\n\nil. gov/ chambervideo.\n\nphp."}
{"id":1313,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-05-29","case_number":null,"request_numbers":["59235"],"title":"Marengo School Board violated OMA by vague agenda and insufficient minutes","filename":"59235, issued May 29, 2020.pdf","rel_path":null,"word_count":2097,"summary":"The PAC investigated allegations that the Marengo Community High School District No. 154 Board of Education failed to adequately describe agenda items and failed to provide a public recital before voting on administrator raises. The PAC determined the Board violated the Open Meetings Act regarding its meeting agenda and minutes, though the Board has since amended the minutes.","plain_summary":"A reporter alleged that a school board's meeting agenda was too vague and that they voted on administrator raises without properly explaining the topic to the public first. The Attorney General's office agreed that the board failed to follow transparency rules for agendas and meeting minutes. Because the board has since updated its records and promised to do better, the case is now closed.","holding":"The Board violated the Open Meetings Act by failing to adequately identify the general subject matter of items on its meeting agenda and failing to include sufficient summaries of discussions in its meeting minutes.","legal_question":"Did the Board of Education violate the Open Meetings Act by failing to provide adequate notice of the general subject matter of items for final action on its agenda and by failing to include sufficient summaries of discussions in its meeting minutes?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Marengo Community High School District No. 154 Board of Education","requesting_party":"Mr. Jon Styf, Shaw Media","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The board failed to properly describe agenda items and document discussions regarding administrator salary increases in its meeting minutes.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/59235, issued May 29, 2020.pdf","sha256":"9671bbfad256b371c8eba8be089fc3b272f3e609c31c2e12327e3a997de5ce1e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","meeting minutes","school board","public notice","transparency"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 29, 2020\n\nVia electronic mail\nMr. Jon Styf\nSenior News Editor\nShaw Media\n\nj styf@shawmedia. com\nVia electronic mail\nMr. David Engelbrecht\nSuperintendent\n\nMarengo Community High School District No. 154\n[street address redacted for site publication -- see original PDF]\nengelbrechtd@mchs154. org\nRE: OMA Request for Review — 2019 PAC 59235\n\nDear Mr. Styf and Mr. Engelbrecht:\n\nThis determination is issued pursuant to! section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons discussed below, the Public Access\n\nBureau concludes that the Marengo Community High School District No. 154 ( School District)\nBoard of Education ( Board) violated OMA in connection with its June 24, 2019, meeting agenda\nand\n\nminutes.\n\nOn August 7, 2019, Mr. Styf; on behalf of the Northwest Herald, submitted this\n\nRequest for Review alleging, in relevant part, that the. Board's June 24, 2019, meeting agenda did\nnot adequately identify the general subject matter of certain items slated for final action. In\naddition, Mr. Styf alleged that the Board' s minutes indicate that the Board approved raises for\n\nadministrators in open session, following its closed session discussion of those raises, without\n\nfirst providing a public recital to inform the public of the business being conducted.\nOn August 19, 2019, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to the allegations, together with copies of\n500 South\n\nSecond\n\nStreet, Springfield,\n\n100 West Randolph\n601 South\n\nUniversity\n\nStreet, Chicago,\nAve., Carbondale,\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\nIllinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806 •\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Jon Styf\nMr. David N. Engelbrecht,\n\nEd. S.\n\nMay 29, 2020\nPage 2\n\nthe notice, agenda, and minutes for the June 24, 2019, meeting. On August 27, 2019,\nSuperintendent David Engelbrecht provided a written response and the supporting materials on\n\nbehalf of the Board. This office forwarded the response to Mr. Styf; he did not submit a reply.\nDETERMINATION\n\nThe Open Meetings\n\nAct provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 I11. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nSection 2. 02( c) of OMA\nSection 2. 02( c)\n\nof\n\nOMA ( 5 ILCS 120/ 2. 02( c) ( West 2018)) requires\n\nan agenda\n\nto\n\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\nDistrict Personnel Compensation\n\nMr. Styf alleged that the Board' s June 24, 2019, agenda failed to identify final\naction concerning personnel pay raises and administrator compensation.\n\nIn its response to this\n\noffice, the Board asserted that its closed session exception \" Executive session to discuss.\npersonnel,\n\nThe compensation\n\nand\n\nperformance\n\nof employees\n\nof the\n\nDistrict[,]\" 1 when read in\n\nconjunction with the immediately succeeding agenda item \" Possible action as a result from\n2\n\nof possible final action. Indeed, the latter\nagenda item provided a reasonable inference that the Board may have taken final action with\nExecutive\n\nSession[,]\"\n\nproperly identified the subject\n\nrespect to the compensation and performance of District personnel following closed session\ndiscussion. The Public Access Bureau has previously 'determined, however, that overly -generic\nagenda items pertaining to personnel do not meet the requirements of section 2. 02( c) of OMA.\n\nSee, e. g., I11. Att'y Gen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25, 2017, at 4- 5 ( agenda\nitem \" Employment of Personnel\" did not provide general subject matter of vote to approve\nadministrators'\n\nsalaries).\n\nFurther, this office has explained that\n\nto comply with\n\nsection\n\n2. 02( c), an agenda item for personnel\n\nactions must at least reference the category or categories of\nCommunity High School District No. 154 Board of Education, Meeting, Agenda Item F ( June 24,\n2019).\n\n2Community High School District No. 154 Board\n2019).\n\nof\n\nEducation,\n\nMeeting, Agenda\n\nItem G ( June 24,\n\n\fMr. Jon Styf\nMr. David N. Engelbrecht, Ed. S.\n\nMay 29, 2020\nPage 3\n\nemployees at issue, such as teachers, bus drivers, social workers,\n\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities\n\nof the Board will have little knowledge\n\nof what it will be\n\nacting upon. Ill. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\n\nAlthough the Board provided sufficient notice that it might take final action\n\nfollowing closed session, Agenda Item F did not sufficiently set forth the general subject matter\nof the potential action. For example, the agenda item could have identified the categories of\nDistrict personnel at issue or otherwise have expanded on the types of actions being\ncontemplated with respect to compensation and performance.\n\nAccordingly, this office concludes\n\nthat the Board violated section 2. 02( c) of OMA with respect to that agenda item. Because the\n\nBoard has indicated that it will include greater detail in future meeting agendas, no further\nremedial. action is necessary at this time.\nRecommendation\n\nto approve personnel\n\nreport\n\nMr. Styf also alleged that Board' s meeting agenda provided only \" Recommend\napproval\n\nof the\n\nreporti3\n\npersonnel\n\nwithout\n\nfurther detail.\n\nIn its response to that allegation, the\n\nBoard explained:\n\nThe agenda that is publicly posted for school board\nmeetings\n\npreviously noted, \" Approval of personnel\n\nreport.\"\n\nDuring\n\nthe open meeting, the board provides handouts with supplemental\ndocumentation if used, detailing items of discussion including\nnames, positions,\n\nand related information.\n\nIt is open discussion\n\nin\n\nopen session regarding those individuals prior to any action being\ntaken. The vote which approves the personnel\n\nreport is inclusive\n\nof\n\nall individuals publicly discussed in the open meeting unless the\nboard specifies changes. In this situation, which is infrequent, a\nmotion is made to amend and then later to accept the personnel\n\nreport as amended, excluding any individuals that the board may\nhave decided not to take action on.\n\n3Community High School District No. 154 Board of Education, Meeting, Agenda Item E. 7 ( June\n24, 2019).\n\n\fMr. Jon Styf\n\nMr. David N. Engelbrecht, Ed. S.\n\nMay 29, 2020\nPage 4\n\nIn order to provide additional transparency on our agendas,\n\nbeginning this fiscal year we will stateeach individual' s name,\ntheir position, and their placement on the salary schedule on the\n\npersonnel section of the agenda. l41\nThe Board' s response to this office did not describe in depth the types of final\n\naction associated with approving its personnel report or if the report is limited only to the\ndiscussion of District personnel.\n\nHowever, this office notes that such an agenda item could\n\nencompass virtually any matter relating to District personnel. Although section 2. 02( c) does not\nrequire the agenda to identify, the subject of possible final action by name or the specific action\n\nbeingcontemplated, the Board' s agenda item was simply too vague and imprecise to provide any\nmeaningful notice to the public of the type of action the Board planned to take with respect to\n\npersonnel. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 13540, issued June 22, 2011, at 4 ( agenda item\nfor \" personnel matters\" did not provide sufficient advance notice of public body' s vote to\napprove\nan employment\ncontract).\nFurther, although the Board asserted that it typically provides\nduring its meetings supplemental documentation concerning items under review in the personnel\n\nreport, it has not otherwise indicated that those materials are publicly available at least 48 hours\nbefore a meeting. Accordingly, this office concludes that the Board violated section 2. 02( c) of\nOMA with respect to that agenda item. Because the Board has indicated that it will include\n\ngreater detail in future meeting agendas, no further remedial action is necessary at this time.\nSection 2( e) of OMA\nSection 2( e)\n\nof\n\nOMA ( 5 ILCS 120/ 2( e) ( West 2018))\n\nprovides\n\nthat \"[\n\nf] inal action\n\nshall be preceded by a public recital of the nature of the matter being considered and other\n\ninformation that will inform the public of the business' being conducted.\"\nMr. Styf alleged that the Board failed to properly inform the public of a vote\n\nconcerning compensation following closed session discussion. He also noted that the June 24,\n\n2019, meeting minutes do not adequately describe any 'open session discussion of that topic. 5\nThe Board' s response to this office provided, in relevant part:\nThe Board then came out of executive session and\ndiscussed the ESP raises and also the administrative salaries and\n\nLetter from David N. Engelbrecht, Ed. S., Superintendent, to Christopher R. Boggs, Supervising\nAttorney, Public Access Bureau, Office of the Attorney General, State of Illinois ( August 27, 2019), at 1- 2.\n5Section 2. 06( a)( 3) of OMA ( 5 ILCS 120/ 2. 06( a)( 3) ( West 2018)) requires public bodies to keep\nwritten meeting minutes, which shall include, in relevant part, \" a summary of discussion on all matters proposed,\ndeliberated, or decided,\n\nand a record\n\nof\n\nany votes taken.\"\n\n\fMr. Jon Styf\n\nMr. David N. Engelbrecht,\n\nEd. S.\n\nMay 29, 2020\nPage 5\n\ncontracts in open session. Documentation showing proposed\nsalaries was reviewed and discussed in open session. A motion was\nmade\nas\n\nand\n\nseconded, \"\n\ndiscussed.\"\n\nmade\n\nand\n\nTo approve administrator contracts and raises\n\nThere was a roll call vote. Then there was a motion\n\nseconded, \"\n\nTo approve ESP Staff raises as discussed.\"\n\nThere was a roll call vote.\n\nUpon receipt of the email from Mr. Styf and reviewing the\nminutes of the meeting, I recognize that they do not note the\ndiscussion out of closed session, documentation of raises, or details\nof the discussion and review that was in open session.\n\nAdditionally, the recorded motion does not reflect the contract\napproval of administrators in addition to the raise approval. The\n\nminutes of the June 24, 2019 meeting were amended at the August\n26, 2019 meeting to accurately document meeting details and are\nattached with changes in bold. The discussed documentation of\n\nsalaries, which became public at the meeting and afterward, are\n\nattached to the minutes. Future minutes will be more carefully\ndocumented\n\nto include details of open session discussion\n\nand\n\nactions.[61\n\nThe Board' s response to this office confirmed that, following closed session, it\n\ndiscussed in various detail staff raises and administrator salary proposals prior to taking final\naction\n\non\n\nthose\n\nitems.\n\nThis office has not received\n\nany evidence\n\nto the\n\ncontrary.\n\nAccordingly,\n\nbased on the information provided, this office is unable to conclude that the Board violated\n\nsection 2( e) of OMA at its June 24. 2019, meeting.\nHowever, the Board also acknowledged that the June 24, 2019, meeting minutes\ndid not adequately reflect the extent of the Board' s discussion of those items in open session.\nSection 2. 06( a)( 3)\n\nOMA ( 5 ILCS 120/ 2. 06( a)( 3) ( West 2018))\n\nrequires that a public body\ninclude in its meeting minutes \" a summary of discussion on all matters proposed, deliberated, or\ndecided, and a record of any votes taken.\"\nBecause the Board' s meeting minutes did not include\nof\n\nsummaries of its discussions of the items at issue, this office concludes that the Board violated\nthe requirements of section 2. 06( a)( 3) of OMA. The Board' s response, however, stated that it\n\nhas since amended its June 24, 2019, meeting minutes and indicated that it will more carefully\ndocument open session discussions in the future, therefore no further remedial action is\nnecessary at this time.\n\n6Letter from David N. Engelbrecht, Ed. S., Superintendent, to Christopher R. Boggs, Supervising\nAttorney,\n\nPublic Access\n\nBureau,\n\nOffice\n\nof the\n\nAttorney\n\nGeneral,\n\nState\n\nof\n\nIllinois ( August\n\n27, 2019), at 1- 2.\n\n\fMr. Jon Styf\nMr. David N. Engelbrecht,\n\nEd. S.\n\nMay 29, 2020\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at ( 217) 785- 7438 or at cboggs@atg.state. il.us.\nVery truly yours,\n\nR\n\n6,_• • :•\n\nSupervising Attorney\nPublic Access Bureau\n59235 o 202c' improper 2e proper 206 minutes\n\nimproper\n\nsd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's agenda descriptions and meeting minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59235/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 29, 2020\n\nVia electronic mail\nMr. Jon Styf\nSenior News Editor\nShaw Media\n\nj styf@shawmedia. com\nVia electronic mail\nMr. David Engelbrecht\nSuperintendent\n\nMarengo Community High School District No. 154\n[street address redacted for site publication -- see original PDF]\nengelbrechtd@mchs154. org\nRE: OMA Request for Review — 2019 PAC 59235\n\nDear Mr. Styf and Mr. Engelbrecht:\n\nThis determination is issued pursuant to! section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons discussed below, the Public Access\n\nBureau concludes that the Marengo Community High School District No. 154 (School District)\nBoard of Education (Board) violated OMA in connection with its June 24, 2019, meeting agenda\nand\n\nminutes.\n\nOn August 7, 2019, Mr. Styf; on behalf of the Northwest Herald, submitted this\n\nRequest for Review alleging, in relevant part, that the. Board's June 24, 2019, meeting agenda did\nnot adequately identify the general subject matter of certain items slated for final action. In\naddition, Mr. Styf alleged that the Board's minutes indicate that the Board approved raises for\n\nadministrators in open session, following its closed session discussion of those raises, without\n\nfirst providing a public recital to inform the public of the business being conducted.\nOn August 19, 2019, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to the allegations, together with copies of\n500 South\n\nSecond\n\nStreet, Springfield,\n\n100 West Randolph\n601 South\n\nUniversity\n\nStreet, Chicago,\nAve., Carbondale,\n\nIllinois 62701 • (217) 782- 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n\nthe notice, agenda, and minutes for the June 24, 2019, meeting. On August 27, 2019,\nSuperintendent David Engelbrecht provided a written response and the supporting materials on\n\nbehalf of the Board. This office forwarded the response to Mr. Styf; he did not submit a reply.\nDETERMINATION\n\nThe Open Meetings\n\nAct provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 I11. App. 3d\n161, 171 (5th Dist. 1989).\n\nSection 2. 02(c) of OMA\nSection 2. 02(c)\n\nof\n\nOMA (5 ILCS 120/ 2. 02(c) (West 2018)) requires\n\nan agenda\n\nto\n\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\nDistrict Personnel Compensation\n\nMr. Styf alleged that the Board's June 24, 2019, agenda failed to identify final\naction concerning personnel pay raises and administrator compensation.\n\nIn its response to this\n\noffice, the Board asserted that its closed session exception \" Executive session to discuss.\npersonnel,\n\nThe compensation\n\nand\n\nperformance\n\nof employees\n\nof the\n\nDistrict[,]\" 1 when read in\n\nconjunction with the immediately succeeding agenda item \" Possible action as a result from\n2\n\nof possible final action. Indeed, the latter\nagenda item provided a reasonable inference that the Board may have taken final action with\nExecutive\n\nSession[,]\"\n\nproperly identified the subject\n\nrespect to the compensation and performance of District personnel following closed session\ndiscussion. The Public Access Bureau has previously 'determined, however, that overly -generic\nagenda items pertaining to personnel do not meet the requirements of section 2. 02(c) of OMA.\n\nSee, e. g., I11. Att'y Gen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25, 2017, at 4- 5 (agenda\nitem \" Employment of Personnel\" did not provide general subject matter of vote to approve\nadministrators'\n\nsalaries).\n\nFurther, this office has explained that\n\nto comply with\n\nsection\n\n2. 02(c), an agenda item for personnel\n\nactions must at least reference the category or categories of\nCommunity High School District No. 154 Board of Education, Meeting, Agenda Item F (June 24,\n2019).\n\n2 Community High School District No. 154 Board\n2019).\n\nemployees at issue, such as teachers, bus drivers, social workers,\n\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities\n\nof the Board will have little knowledge\n\nof what it will be\n\nacting upon. Ill. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\n\nAlthough the Board provided sufficient notice that it might take final action\n\nfollowing closed session, Agenda Item F did not sufficiently set forth the general subject matter\nof the potential action. For example, the agenda item could have identified the categories of\nDistrict personnel at issue or otherwise have expanded on the types of actions being\ncontemplated with respect to compensation and performance.\n\nAccordingly, this office concludes\n\nthat the Board violated section 2. 02(c) of OMA with respect to that agenda item. Because the\n\nBoard has indicated that it will include greater detail in future meeting agendas, no further\nremedial. action is necessary at this time.\nRecommendation\n\nto approve personnel\n\nreport\n\nMr. Styf also alleged that Board's meeting agenda provided only \" Recommend\napproval\n\nof the\n\nreporti3\n\npersonnel\n\nwithout\n\nfurther detail.\n\nIn its response to that allegation, the\n\nBoard explained:\n\nThe agenda that is publicly posted for school board\nmeetings\n\npreviously noted, \" Approval of personnel\n\nreport.\"\n\nDuring\n\nthe open meeting, the board provides handouts with supplemental\ndocumentation if used, detailing items of discussion including\nnames, positions,\n\nand related information.\n\nIt is open discussion\n\nin\n\nopen session regarding those individuals prior to any action being\ntaken. The vote which approves the personnel\n\nreport is inclusive\n\nof\n\nall individuals publicly discussed in the open meeting unless the\nboard specifies changes. In this situation, which is infrequent, a\nmotion is made to amend and then later to accept the personnel\n\nreport as amended, excluding any individuals that the board may\nhave decided not to take action on.\n\n3 Community High School District No. 154 Board of Education, Meeting, Agenda Item E. 7 (June\n\nIn order to provide additional transparency on our agendas,\n\nbeginning this fiscal year we will stateeach individual's name,\ntheir position, and their placement on the salary schedule on the\n\npersonnel section of the agenda. l41\nThe Board's response to this office did not describe in depth the types of final\n\naction associated with approving its personnel report or if the report is limited only to the\ndiscussion of District personnel.\n\nHowever, this office notes that such an agenda item could\n\nencompass virtually any matter relating to District personnel. Although section 2. 02(c) does not\nrequire the agenda to identify, the subject of possible final action by name or the specific action\n\nbeingcontemplated, the Board's agenda item was simply too vague and imprecise to provide any\nmeaningful notice to the public of the type of action the Board planned to take with respect to\n\npersonnel. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 13540, issued June 22, 2011, at 4 (agenda item\nfor \" personnel matters\" did not provide sufficient advance notice of public body's vote to\napprove\nan employment\ncontract).\nFurther, although the Board asserted that it typically provides\nduring its meetings supplemental documentation concerning items under review in the personnel\n\nreport, it has not otherwise indicated that those materials are publicly available at least 48 hours\nbefore a meeting. Accordingly, this office concludes that the Board violated section 2. 02(c) of\nOMA with respect to that agenda item. Because the Board has indicated that it will include\n\ngreater detail in future meeting agendas, no further remedial action is necessary at this time.\nSection 2(e) of OMA\nSection 2(e)\n\nof\n\nOMA (5 ILCS 120/ 2(e) (West 2018))\n\nprovides\n\nthat \"[\n\nf] inal action\n\nshall be preceded by a public recital of the nature of the matter being considered and other\n\ninformation that will inform the public of the business' being conducted.\"\nMr. Styf alleged that the Board failed to properly inform the public of a vote\n\nconcerning compensation following closed session discussion. He also noted that the June 24,\n\n2019, meeting minutes do not adequately describe any 'open session discussion of that topic. 5\nThe Board's response to this office provided, in relevant part:\nThe Board then came out of executive session and\ndiscussed the ESP raises and also the administrative salaries and\n\nLetter from David N. Engelbrecht, Ed. S., Superintendent, to Christopher R. Boggs, Supervising\nAttorney, Public Access Bureau, Office of the Attorney General, State of Illinois (August 27, 2019), at 1- 2.\n5 Section 2. 06(a)(3) of OMA (5 ILCS 120/ 2. 06(a)(3) (West 2018)) requires public bodies to keep\nwritten meeting minutes, which shall include, in relevant part, \" a summary of discussion on all matters proposed,\ndeliberated, or decided,\n\ncontracts in open session. Documentation showing proposed\nsalaries was reviewed and discussed in open session. A motion was\nmade\nas\n\nand\n\nseconded, \"\n\ndiscussed.\"\n\nmade\n\nand\n\nTo approve administrator contracts and raises\n\nThere was a roll call vote. Then there was a motion\n\nseconded, \"\n\nTo approve ESP Staff raises as discussed.\"\n\nThere was a roll call vote.\n\nUpon receipt of the email from Mr. Styf and reviewing the\nminutes of the meeting, I recognize that they do not note the\ndiscussion out of closed session, documentation of raises, or details\nof the discussion and review that was in open session.\n\nAdditionally, the recorded motion does not reflect the contract\napproval of administrators in addition to the raise approval. The\n\nminutes of the June 24, 2019 meeting were amended at the August\n26, 2019 meeting to accurately document meeting details and are\nattached with changes in bold. The discussed documentation of\n\nsalaries, which became public at the meeting and afterward, are\n\nattached to the minutes. Future minutes will be more carefully\ndocumented\n\nto include details of open session discussion\n\nand\n\nactions.[61\n\nThe Board's response to this office confirmed that, following closed session, it\n\ndiscussed in various detail staff raises and administrator salary proposals prior to taking final\naction\n\non\n\nthose\n\nitems.\n\nThis office has not received\n\nany evidence\n\nto the\n\ncontrary.\n\nAccordingly,\n\nbased on the information provided, this office is unable to conclude that the Board violated\n\nsection 2(e) of OMA at its June 24. 2019, meeting.\nHowever, the Board also acknowledged that the June 24, 2019, meeting minutes\ndid not adequately reflect the extent of the Board's discussion of those items in open session.\nSection 2. 06(a)(3)\n\nOMA (5 ILCS 120/ 2. 06(a)(3) (West 2018))\n\nrequires that a public body\ninclude in its meeting minutes \" a summary of discussion on all matters proposed, deliberated, or\ndecided, and a record of any votes taken.\"\nBecause the Board's meeting minutes did not include\nof\n\nsummaries of its discussions of the items at issue, this office concludes that the Board violated\nthe requirements of section 2. 06(a)(3) of OMA. The Board's response, however, stated that it\n\nhas since amended its June 24, 2019, meeting minutes and indicated that it will more carefully\ndocument open session discussions in the future, therefore no further remedial action is\nnecessary at this time.\n\n6 Letter from David N. Engelbrecht, Ed. S., Superintendent, to Christopher R. Boggs, Supervising\nAttorney,\n\nPublic Access\n\nBureau,\n\nOffice\n\nof the\n\nAttorney\n\nGeneral,\n\nState\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at (217) 785- 7438 or at cboggs@atg.state. il.us.\nVery truly yours,\n\nR\n\n6,_• •:•\n\nSupervising Attorney\nPublic Access Bureau\n59235 o 202c' improper 2e proper 206 minutes\n\nimproper\n\nsd"}
{"id":1316,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-09-26","case_number":null,"request_numbers":["59813"],"title":"DuPage County Stormwater Management Committee validly cited pending litigation exception","filename":"59813, issued September 26, 2019.pdf","rel_path":null,"word_count":1141,"summary":"The requester alleged that the DuPage County Board's Stormwater Management Committee failed to properly cite the legal exception when voting to enter closed session, but the PAC determined the committee adequately identified the exception.","plain_summary":"A citizen complained that a local committee did not properly announce the legal reason for closing a meeting to the public. The Attorney General's office reviewed a video of the meeting and found that although the chairman stumbled over his words, he clearly stated the meeting was being closed to discuss 'pending litigation.' Therefore, the PAC decided the committee followed the law and closed the case.","holding":"The PAC concluded that no violation occurred because the committee chairman sufficiently identified the 'pending litigation' exception during the vote to enter closed session.","legal_question":"Whether a public body's verbal reference to 'pending litigation' during a vote to enter closed session satisfies the requirement under OMA section 2a to cite the specific exception authorizing the closure.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2a"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"DuPage County Board's Stormwater Management Committee","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The committee voted to enter a closed session to discuss pending litigation.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2a/vote-required/59813, issued September 26, 2019.pdf","sha256":"fcc422a91f64cbf1003ad1aef1f8e44f36ba3ffbab4e80f2359af6e99d7c44fb","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting minutes","pending litigation","OMA"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nSeptember 26, 2019\n\nVia electronic mail\n\nRE:\n\nOMA Request for Review —2019 PAC 59813\n\nDear\n\nThis determination is issued pursuant to section 3. 5( b) of the Open Meetings Act\n5 ILCS 120/ 3. 5( b) ( West 2018)).\n\nFor the reasons stated below, the Public Access Bureau\n\nconcludes that no further action is warranted as to this matter.\n\nOn September 23, 2019, this office received a Request for Review in which you\n\nalleged that the DuPage County Board' s Stormwater Management Committee ( Committee)\nviolated section 2a of OMA ( 5 ILCS 120/ 2a ( West 2018)) in connection with its vote to enter\n\nclosed session at its September 3, 2019, meeting. Section 2a provides, in pertinent part:\nA public body may hold a meeting closed to the public, or\nclose a portion of a meeting to the public, upon a majority vote of a\n\nquorum present, taken at a meeting open to the public for which\nby this Act. * * *. The vote of\neach member on the question of holding a meeting closed to the\npublic and a citation to the specific exception contained in Section\nnotice\n\nhas been given as required\n\n2 of this Act which authorizes the closing of the meeting to the\npublic shall be publicly disclosed at the time of the vote and shall\n\nbe recorded and entered into the minutes of the meeting. Nothing\nin this Section or this Act shall be construed to require that any\nmeeting be closed to the public.\nYou provided a link to a video recording of the meeting which shows the chairman of the\nCommittee stated: \" Is there a motion to go into executive session pursuant to 2 - c - IL - 11 to\ndiscuss pending litigation?\" After a motion was made and seconded, the chairman asked, \" all in\n\n500 South Second Street, Springfield, Illinois 62706 • (\n\n217) 782- 1090 •\n\nTTY: ( 217) 785 - 2771 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n312) 814- 3000 • TTY: ( 312) 814- 3374 •\nFax: ( 312) 814- 3806\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fSeptember 26, 2019\nPage 2\n\nfavor?\"\n\nFollowing a chorus of \"ayes\", the chairman stated, \" Ok, we' ll go into executive\n\nsession.\"'\n\nFirst, you alleged that the vote to enter closed session was improper because the\nthe Committee did not hold a roll call vote and did not give members of the Committee an\n\nopportunity to oppose the motion. You stated that \"[ i] t is possible that someone might have\nwished to vote ' no' and did not have an opportunity. Furthermore, it is possible that a member\ndid not vote on the motion at all. Therefore, ' the vote of each member' was not 'publicly\ndisclosed'.\" 2\nSection 2a of OMA does not set forth a specific procedure, such as a roll call vote,\n\nfor entering closed session. It only requires a citation to the exception that is the basis for\nclosing the meeting and that the vote of each member be publicly disclosed. A unanimous voice\n\nvote publicly discloses the vote of each member in attendance. It appears from the recording that\nthe chairman was satisfied that the members attending the meeting unanimously voted to enter\n\nclosed session, rendering unnecessary a separate vote of members who opposed the motion. If\n\nany Board members wished to oppose the motion, they could have indicated their opposition and\nasked for a separate vote. Your speculation that Board members may have stayed silent during\nthe vote on the motion to enter closed session, or been denied an opportunity to oppose the\n\nmotion, does not provide facts supporting the allegation that the Board violated section 2a of\nOMA. Although a roll call vote may be the best practice and most transparent procedure for\n\nentering closed session, the plain language of section 2a imposes no such requirement. OMA\naffords the chairman a degree of discretion to conduct the vote. Moreover, the meeting minutes\nthat you referenced in your Request for Review show that the vote of each member on the\n\nquestion of entering closed session was recorded and entered into the minutes, as required by\nsection 2a.3\nWith respect to the citation to the exception that authorized the Committee to\n\nenter closed session, you alleged that the chairman publicly cited \"' 2 - c - IL —11' and then\n\nmumbled something that roughly resembles ' pending litigation'. Because the Chairman didn't\nclearly enunciate the words ' pending litigation', and because ' 2 - c - IL —11' doesn' t explicitly\n\nDuPage County Stormwater Management Committee, Meeting, September 3, 2019, Video\nRecording, available at\n\nhttp:// dupage. igm2. com/ Citizens/ SplitView. aspx? Mode= Video& MeetingID= 8490& Format= Minutes\n2E -mail from\n3DuPage\n\nCounty Stormwater\n\nSarah]\n\nPratt ( September\n\nManagement\n\n21, 2019).\n\nCommittee, Meeting, September 3, 2019, Minutes 4.\n\n\fSeptember 26, 2019\nPage 3\n\nrefer to section 2( c)( 11) of OMA, it is plausible that the public may have been confused when the\nCommittee declared that it would go into executive session.\"^\n\nSection 2( c)( 11) of OMA ( 5 ILCS 120/ 2( c)( 11) ( West 2018), as amended by\nPublic Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) permits a\n\npublic body to enter closed session to discuss \" Mitigation, when an action against, affecting or\non behalf of the particular public body has been filed and is pending before a court or\nadministrative\n\ntribunal[.]\"\n\nThe video recording of the Committee' s September 3, 2019, meeting\n\nconfirms that the chairman referred to entering closed session pursuant to \" 2 - c - IL —11\" and\nthen appeared to slightly stumble over the word \" litigation\" in the phrase \" pending litigation.\"\nNevertheless,\n\nthe words \" pending\n\nlitigation\"\n\nwere\n\ndiscernable. \"[\n\nS] ection 2a does not require a\n\nspecific citation to the statute as long as the public body adequately identifies the exception.\"\nWyman v. Schweigharl, 385 I11. App. 3d 1099, 1105 ( 4th Dist. 2008). The chairman of the\n\nCommittee adequately identified section 2( c)( 11) by referencing \" pending litigation.\"\nAccordingly, this office has determined that no further action is warranted as to this matter.\n\nIf you have any questions, you may contact me at ( 312) 814- 6756. This file is\nclosed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\n\nBureau Chief\nPublic Access Bureau\n\n59813 o no fi war county\ncc:\n\nVia electronic mail\n\nThe Honorable James F. Zay, Jr.\nChair\nStormwater Management\n\nCommittee\n\nDuPage County Board\n421 North County Farm Road\nWheaton, Illinois 60187\n\njzay@dupageco. org\n\nE- mail from\n\nto [\n\nSarah]\n\nPratt ( September\n\n21, 2019).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session vote citing pending litigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59813/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nSeptember 26, 2019\n\nVia electronic mail\n\nRE:\n\nOMA Request for Review —2019 PAC 59813\n\nDear\n\nThis determination is issued pursuant to section 3. 5(b) of the Open Meetings Act\n5 ILCS 120/ 3. 5(b) (West 2018)).\n\nFor the reasons stated below, the Public Access Bureau\n\nconcludes that no further action is warranted as to this matter.\n\nOn September 23, 2019, this office received a Request for Review in which you\n\nalleged that the DuPage County Board's Stormwater Management Committee (Committee)\nviolated section 2a of OMA (5 ILCS 120/ 2a (West 2018)) in connection with its vote to enter\n\nclosed session at its September 3, 2019, meeting. Section 2a provides, in pertinent part:\nA public body may hold a meeting closed to the public, or\nclose a portion of a meeting to the public, upon a majority vote of a\n\nquorum present, taken at a meeting open to the public for which\nby this Act. * * *. The vote of\neach member on the question of holding a meeting closed to the\npublic and a citation to the specific exception contained in Section\nnotice\n\nhas been given as required\n\n2 of this Act which authorizes the closing of the meeting to the\npublic shall be publicly disclosed at the time of the vote and shall\n\nbe recorded and entered into the minutes of the meeting. Nothing\nin this Section or this Act shall be construed to require that any\nmeeting be closed to the public.\nYou provided a link to a video recording of the meeting which shows the chairman of the\nCommittee stated: \" Is there a motion to go into executive session pursuant to 2 - c - IL - 11 to\ndiscuss pending litigation?\" After a motion was made and seconded, the chairman asked, \" all in\n\nfavor?\"\n\nFollowing a chorus of \"ayes\", the chairman stated, \" Ok, we' ll go into executive\n\nsession.\"'\n\nFirst, you alleged that the vote to enter closed session was improper because the\nthe Committee did not hold a roll call vote and did not give members of the Committee an\n\nopportunity to oppose the motion. You stated that \"[ i] t is possible that someone might have\nwished to vote ' no' and did not have an opportunity. Furthermore, it is possible that a member\ndid not vote on the motion at all. Therefore, ' the vote of each member' was not 'publicly\ndisclosed'.\" 2\nSection 2a of OMA does not set forth a specific procedure, such as a roll call vote,\n\nfor entering closed session. It only requires a citation to the exception that is the basis for\nclosing the meeting and that the vote of each member be publicly disclosed. A unanimous voice\n\nvote publicly discloses the vote of each member in attendance. It appears from the recording that\nthe chairman was satisfied that the members attending the meeting unanimously voted to enter\n\nclosed session, rendering unnecessary a separate vote of members who opposed the motion. If\n\nany Board members wished to oppose the motion, they could have indicated their opposition and\nasked for a separate vote. Your speculation that Board members may have stayed silent during\nthe vote on the motion to enter closed session, or been denied an opportunity to oppose the\n\nmotion, does not provide facts supporting the allegation that the Board violated section 2a of\nOMA. Although a roll call vote may be the best practice and most transparent procedure for\n\nentering closed session, the plain language of section 2a imposes no such requirement. OMA\naffords the chairman a degree of discretion to conduct the vote. Moreover, the meeting minutes\nthat you referenced in your Request for Review show that the vote of each member on the\n\nquestion of entering closed session was recorded and entered into the minutes, as required by\nsection 2a.3\nWith respect to the citation to the exception that authorized the Committee to\n\nenter closed session, you alleged that the chairman publicly cited \"' 2 - c - IL —11' and then\n\nmumbled something that roughly resembles ' pending litigation'. Because the Chairman didn't\nclearly enunciate the words ' pending litigation', and because ' 2 - c - IL —11' doesn' t explicitly\n\nDuPage County Stormwater Management Committee, Meeting, September 3, 2019, Video\nRecording, available at\n\nhttp:// dupage. igm2. com/ Citizens/ SplitView. aspx? Mode= Video& MeetingID= 8490& Format= Minutes\n2E -mail from\n3 DuPage\n\nrefer to section 2(c)(11) of OMA, it is plausible that the public may have been confused when the\nCommittee declared that it would go into executive session.\"^\n\nSection 2(c)(11) of OMA (5 ILCS 120/ 2(c)(11) (West 2018), as amended by\nPublic Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) permits a\n\npublic body to enter closed session to discuss \" Mitigation, when an action against, affecting or\non behalf of the particular public body has been filed and is pending before a court or\nadministrative\n\ntribunal[.]\"\n\nThe video recording of the Committee's September 3, 2019, meeting\n\nconfirms that the chairman referred to entering closed session pursuant to \" 2 - c - IL —11\" and\nthen appeared to slightly stumble over the word \" litigation\" in the phrase \" pending litigation.\"\nNevertheless,\n\nthe words \" pending\n\nlitigation\"\n\nwere\n\ndiscernable. \"[\n\nS] ection 2a does not require a\n\nspecific citation to the statute as long as the public body adequately identifies the exception.\"\nWyman v. Schweigharl, 385 I11. App. 3d 1099, 1105 (4th Dist. 2008). The chairman of the\n\nCommittee adequately identified section 2(c)(11) by referencing \" pending litigation.\"\nAccordingly, this office has determined that no further action is warranted as to this matter.\n\nIf you have any questions, you may contact me at (312) 814- 6756. This file is\nclosed.\n\nVery truly yours,\n\nSTEVE SILVERMAN\n\nBureau Chief\nPublic Access Bureau\n\n59813 o no fi war county\ncc:\n\nVia electronic mail\n\nThe Honorable James F. Zay, Jr.\nChair\nStormwater Management\n\nCommittee\n\nDuPage County Board\n421 North County Farm Road\nWheaton, Illinois 60187\n\njzay@dupageco. org\n\nE- mail from\n\nto [\n\nSarah]\n\nPratt (September\n\n21, 2019)."}
{"id":1318,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-06-08","case_number":null,"request_numbers":["59963"],"title":"Waukegan School Board did not violate OMA by discussing property purchase in closed session","filename":"59963, issued June 8, 2020.pdf","rel_path":null,"word_count":2244,"summary":"A reporter alleged that the Waukegan Public Schools Board of Education held improper closed session meetings to discuss property acquisition, but the PAC determined the discussions were permissible.","plain_summary":"A reporter questioned whether a school board broke the law by discussing property purchases in private meetings. The Attorney General's office reviewed the secret recordings of those meetings and concluded the board acted within its legal rights. This means the board did not violate the Open Meetings Act in this instance.","holding":"The Board of Education did not violate the Open Meetings Act during its closed session meetings regarding the potential purchase of property.","legal_question":"Whether the Board of Education violated the Open Meetings Act by discussing the potential purchase of property during closed session meetings.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)"],"public_body":"Board of Education of the Waukegan Public Schools, Community Unit School District No. 60","requesting_party":"Ms. Emily Coleman, Lake County News-Sun","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board held closed session meetings to discuss the potential purchase of real estate.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_5/59963, issued June 8, 2020.pdf","sha256":"099eb5183438c674370e2abd34f4bfa9890defe16bc1e15c3440bd34c0bcd6b5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","property acquisition","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 8, 2020\n\nVia electronic mail\n\nMs. Emily Coleman\n\nReporter, Lake County News -Sun\nemcoleman@tribpub. com\n\nVia electronic mail\nMr. Thomas A. Morris, Jr.\nGeneral Counsel\n\nCommunity Unit School District No. 60\n1201 North Sheridan Road\n\n[street address redacted for site publication -- see original PDF]\ntmorris@wps60. org\nRE:\n\nOMA Request for Review — 2019 PAC 59963\n\nDear Ms. Coleman and Mr. Morris:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that Board of Education (Board) ofthe Waukegan Public Schools, Community\n\nUnit School District No. 60 ( District), did not violate OMA during four closed session meetings\n\nin 2019 when it discussed matters related to the potential purchase of property.\nOn October 1, 2019, Ms. Emily Coleman, on behalf of the Lake County News Sun, submitted the above -captioned Request for Review alleging that the Board held improper\nclosed session discussions in advance of the Board's approval of the District's purchase of a\nparcel of property. Ms. Coleman stated that the Board approved the purchase on September 10,\n\n2019, and held closed session discussions earlier that day, as well as on June 4, 2019, and during\n\nmeetings in August. On October 10, 2019, this office forwarded a copy of the Request for\nReview to the Board and asked it to provide copies of the verbatim recordings from the Board' s\nclosed session meetings held on June 4, 2019, September 10, 2019, and any other meetings at\nwhich the Board discussed matters relating to the specified property. This office also requested\ncopies of the agendas, and open and closed session minutes from those meetings.\n\n500 South Second\n100 West\n601\n\nStreet, Springfield, Illinois 62701 • (\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\nRandolph Street, Chicago, Illinois 60601 • (\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nSouth University\n\nAve., Carbondale,\n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nJune 8, 2020\nPage 2\n\nOn October 25, 2019, the Board provided this office with those materials and a\nwritten response, in which it acknowledged that it discussed the possible purchase of the parcel\nat four meetings in 2019, but argued that each of those discussions fell within the scope of\nsection 2( c)( 5)\neffective\n\nof\n\nOMA ( 5 ILCS 120/ 2( c)( 5) ( West 2018),\n\nJune 28, 2019; 101- 459,\n\neffective\n\nas amended by Public Acts 101- 031,\n\nAugust 23, 2019).\n\nThe Board also furnished this\n\noffice with a redacted version of its written response to the Request for Review suitable for\ndisclosure to Ms. Coleman.'\n\nOn November 1, 2019, this office sent a copy of the Board's\n\nresponse to Ms. Coleman; she did not reply.\nDETERMINATION\n\nTime Limits for Requests for Review\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2018))\nprovides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If\n\nfacts concerning the violation are not discovered within the 60 -\n\nday period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\n\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (\n\nEmphasis added.)\n\nIn her Request for Review, submitted October 1, 2019, Ms. Coleman asks that\n\nthis office review the discussions held at several closed session meetings during which the Board\nentered closed session pursuant to section 2( c)( 5) of OMA, including the June 4, 2019, meeting.\nThe Board' s June 4, 2019, meeting was held more than 60 days before Ms. Coleman submitted\n\nher Request for Review and she does not expressly state that, despite using reasonable diligence,\n15 ILCS\n\n120/ 3. 5( c) ( West 2018) (\"[\n\nT] he public body may also furnish the Public Access\n\nCounselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public\n\nAccess Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the\nrequest\n\nfor review.\").\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nJune 8, 2020\nPage 3\n\nshe could not have learned material facts concerning the alleged violations at the time that they\n\noccurred. However, Ms. Coleman does assert that the Board approved the property purchase at\nits September 10, 2019, meeting, and there is no indication the Board publicly discussed the\npotential purchase before that meeting. Because the alleged violations occurred during closed\n\nsession, it does not appear that Ms. Coleman could have learned material facts concerning the\n\nalleged violations at the time of the June 4, 2019, meeting. Ms. Coleman submitted this Request\n\nfor Review to this office within 60 days after the discovery of facts concerning the alleged\n\nviolations on September 10, 2019. Accordingly, this Request for Review was filed within the\n\ntime limits set out in section 3. 5( a) of OMA, and this office has authority to review Ms.\nColeman's allegations concerning the June 4, 2019, meeting.\nClosed Session Discussions\n\nOMA isbeintended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations\n\nconducted\n\n5 ILCS 120/ 2( a) ( West 2018),\n\nopenly.\"\n\n5 ILCS 120/ 1 ( West 2018).\n\nSection 2( a) of OMA\n\nas amended by Public Acts 101- 031, effective June 28, 2019;\n\n101- 459, effective August 23, 2019) provides that all meetings of a public body shall be open to\n\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n\n2( c) of OMA. The section\n2( c) exceptions are to be \" strictly construed, extending only to\ntheir\nsubjects\n\nclearly within\n\nscope.\"\n\n5 ILCS 120/ 2( b) ( West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019.\n\nThe Board' s response to this office explains that it discussed the District' s\npotential purchase of the former First Midwest Bank building in downtown Waukegan at four\nclosed session meetings. Those meetings occurred on June 4, 2019, June 25, 2019, August 13,\n\n2019, and September 10, 2019, and the Board entered closed session pursuant to section 2( c)( 5)\nof OMA at each of those sessions. Section 2( c)( 5) of OMA permits closed session discussion of:\n5)\n\nThe purchase or lease of real property for the use of the\n\npublic body, including meetings held for the purpose of discussing\nwhether a particular parcel should be acquired.\n\nIn Galena Gazette Publications Inc., v. County ofJo Daviess, 375 Ill. App. 3d 338\n\n2d Dist. 2007), the Illinois Appellate Court considered a closed session meeting held to discuss\n\nthe possibility of leasing a specific property for its use. There, the plaintiff conceded that the\n\npublic body could permissibly discuss the material terms of the lease in closed session, but\nargued that the scope of section 2( c)( 5) did not extend to \" peripheral matters\" that were raised,\n\nsuch as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at\n344. The court disagreed, finding that nothing in the language of section 2( c)( 5) distinguishes\nmaterial\"\n\nmatters\n\nfrom\n\nperipheral\n\nones.\n\nGalena Gazette, 375 Ill.\nApp. 3d at 344.\n\nSpecifically,\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nJune 8, 2020\nPage 4\n\nthe court noted that one of the topics the public body discussed was the racking of promotional\nbrochures within the leased property, and concluded:\n\nEven when participants discussed the racking of promotional\nbrochures at the Old Train Depot— past, present,\n\nor future—\n\nthey\n\ndid so only because it was pertinent to the terms, effects, or\n\ndesirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature\n\nseparately from their consideration of the proposed subleasing\narrangement* * *.\n\nTo abstract any such discussions from the\n\nlarger context would ignore the participants' purposes in raising the\nissue of the display of promotional materials. Galena Gazette, 375\n111. App. 3d at 344.\n\nThe court added that it would be impractical for the public body to have a\nmeaningful\ndiscussion of the lease terms if it was precluded from discussing related details\nto\n\nneeded\n\nput\n\nthe terms in context.\n\nGalena Gazette, 375 Ill. App. 3d at 345.\n\nBecause the public\n\nbody' s closed session discussion centered on considerations involving the potential lease, and\nbecause its consideration of the proposed lease was affected by related details that the Board also\ndiscussed, the court held that the entire closed session discussion was proper under section\n\n2( c)( 5).\n\nGalena Gazette, 375 Ill. App. 3d at 346. See also Ill. Att'y Gen. PAC Req. Rev. Ltr.\n\n24866, issued February 10, 2020, at 3 ( determining that the public body's entire discussion fell\nwithin the scope of section 2( c)( 5) of OMA, because any \" peripheral matters\" discussed \" were\nconsiderations\n\nnecessary\n\nin the context of\n\ndeliberating on the potential property acquisition\");\n\n111.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 35947, issued August 28, 2015, at 3 ( finding that a city council's\nclosed session was proper because all matters discussed were \" clearly integral to the Council' s\nconsideration of whether to proceed with the purchase proposal\").\n\nIn her Request for Review, Ms. Coleman argues that discussion of \"possible\nrenovation costs associated with the building's purchase, the educational and administrative\n\nrationale for purchasing the building and what would happen with the building that currently\n\noffices the district's administrative offices\" go beyond a discussion of \"the actual purchase of the\n\nbuilding.\"\n\n2\n\nThe Board rejects this interpretation of section 2(c)( 5) as \" overly restrictive,\"\n\narguing:\n\nD] iscussion by the Board concerning the subject of whether the\n\nparcel should be acquired at all, i.e., need for the property, fairly\nOctober\n\n1, 2019).\n\n2E -mail from Emily Coleman to Public Access [ Bureau, Office of Illinois Attorney General]\n\n\fMs. Emily Coleman\nMr. Thomas A. Morris, Jr.\nJune 8, 2020\nPage 5\n\nfall within the exception. Certainly, need is pertinent to a decision\non the amount of any offer. A parcel that is essential to the public\n\nbody has more value than a parcel that has little or marginal utility.\n\nLikewise, a property with systemic flaws or inefficiencies probably\nrequiring immediate outlays would conunand a lower offering\nprice than a property in pristine condition.\n\nThe Board submits that its closed session discussions about\nwhether it was appropriate to acquire the [ First Midwest Bank]\n\nbuilding. were reasonably related to the issues of pricing, worth and\nneed[ Atil\n\nThe appellate court' s decision in Galena Gazette makes clear that a discussion of\n\nwhether a parcel should be acquired\" can include discussion of whether and how a parcel would\n\nbe useful to a public body. Similarly, a discussion of the potential purchase of a parcel\n\ncommonly includes discussion ofpurchase price, and the anticipated costs of renovating a\n\nparticular parcel are intertwined with consideration of the appropriate purchase price for the\n\nparcel. Therefore, a public body' s discussion of whether it needs a parcel, how it would use a\nparcel, and whether purchasing a parcel would saddle a public body with necessary renovation\nexpenses fall within the scope of a discussion of \"whether a parcel should be acquired.\"\n\nBased on this office' s confidential review of the closed session recordings of each\n\nof the four meetings, the Board primarily discussed whether to purchase the First Midwest Bank\n\nbuilding, including the basic terms ofthe transaction and the benefits to the District ofacquiring\n\nthe property. The District also discussed other details that were integral to its deliberations on\nthe potential property acquisition. Because the verbatim recordings of the meetings, as well as\n\nthe Board's argument concerning these specific topics, were provided to this office confidentially\nfor purposes of this review, this office is not permitted to further describe the topics discussed or\nto comment on whether the Request for Review accurately describes the matters discussed at the\nclosed session meetings. This office has thoroughly reviewed the verbatim recordings, and has\n\ndetermined that the Board' s discussions did not exceed the scope of section 2( c)( 5) of OMA.\n\n3Letter from Thomas A. Morris, Jr., General Counsel, Community Unit School District No. 60, to\n\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 ( October 25,\n2019).\n\n\fs.Emily Coleman\nMr. Thomas A. Morris, Jr.\nJune 8, 2020\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Please contact me at ( 312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nLEAH BARTELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n59963 o 2c5 proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussions of a potential real estate purchase","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59963/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 8, 2020\n\nVia electronic mail\n\nMs. Emily Coleman\n\nReporter, Lake County News -Sun\nemcoleman@tribpub. com\n\nVia electronic mail\nMr. Thomas A. Morris, Jr.\nGeneral Counsel\n\nCommunity Unit School District No. 60\n1201 North Sheridan Road\n\n[street address redacted for site publication -- see original PDF]\ntmorris@wps60. org\nRE:\n\nOMA Request for Review — 2019 PAC 59963\n\nDear Ms. Coleman and Mr. Morris:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that Board of Education (Board) ofthe Waukegan Public Schools, Community\n\nUnit School District No. 60 (District), did not violate OMA during four closed session meetings\n\nin 2019 when it discussed matters related to the potential purchase of property.\nOn October 1, 2019, Ms. Emily Coleman, on behalf of the Lake County News Sun, submitted the above -captioned Request for Review alleging that the Board held improper\nclosed session discussions in advance of the Board's approval of the District's purchase of a\nparcel of property. Ms. Coleman stated that the Board approved the purchase on September 10,\n\n2019, and held closed session discussions earlier that day, as well as on June 4, 2019, and during\n\nmeetings in August. On October 10, 2019, this office forwarded a copy of the Request for\nReview to the Board and asked it to provide copies of the verbatim recordings from the Board's\nclosed session meetings held on June 4, 2019, September 10, 2019, and any other meetings at\nwhich the Board discussed matters relating to the specified property. This office also requested\ncopies of the agendas, and open and closed session minutes from those meetings.\n\n500 South Second\n100 West\n601\n\nStreet, Springfield, Illinois 62701 • (217) 782- 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\nRandolph Street, Chicago, Illinois 60601 • (312) 814- 3000 • TTY: (800) 964- 3013 • Fax: (312) 814- 3806\n\nOn October 25, 2019, the Board provided this office with those materials and a\nwritten response, in which it acknowledged that it discussed the possible purchase of the parcel\nat four meetings in 2019, but argued that each of those discussions fell within the scope of\nsection 2(c)(5)\neffective\n\nof\n\nOMA (5 ILCS 120/ 2(c)(5) (West 2018),\n\nJune 28, 2019; 101- 459,\n\neffective\n\nas amended by Public Acts 101- 031,\n\nAugust 23, 2019).\n\nThe Board also furnished this\n\noffice with a redacted version of its written response to the Request for Review suitable for\ndisclosure to Ms. Coleman.'\n\nOn November 1, 2019, this office sent a copy of the Board's\n\nresponse to Ms. Coleman; she did not reply.\nDETERMINATION\n\nTime Limits for Requests for Review\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2018))\nprovides, in pertinent\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If\n\nfacts concerning the violation are not discovered within the 60 -\n\nday period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\n\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\n\nIn her Request for Review, submitted October 1, 2019, Ms. Coleman asks that\n\nthis office review the discussions held at several closed session meetings during which the Board\nentered closed session pursuant to section 2(c)(5) of OMA, including the June 4, 2019, meeting.\nThe Board's June 4, 2019, meeting was held more than 60 days before Ms. Coleman submitted\n\nher Request for Review and she does not expressly state that, despite using reasonable diligence,\n15 ILCS\n\n120/ 3. 5(c) (West 2018) (\"[\n\nT] he public body may also furnish the Public Access\n\nCounselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public\n\nAccess Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the\n\nshe could not have learned material facts concerning the alleged violations at the time that they\n\noccurred. However, Ms. Coleman does assert that the Board approved the property purchase at\nits September 10, 2019, meeting, and there is no indication the Board publicly discussed the\npotential purchase before that meeting. Because the alleged violations occurred during closed\n\nsession, it does not appear that Ms. Coleman could have learned material facts concerning the\n\nalleged violations at the time of the June 4, 2019, meeting. Ms. Coleman submitted this Request\n\nfor Review to this office within 60 days after the discovery of facts concerning the alleged\n\nviolations on September 10, 2019. Accordingly, this Request for Review was filed within the\n\ntime limits set out in section 3. 5(a) of OMA, and this office has authority to review Ms.\nColeman's allegations concerning the June 4, 2019, meeting.\nClosed Session Discussions\n\nOMA isbeintended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations\n\nconducted\n\n5 ILCS 120/ 2(a) (West 2018),\n\nopenly.\"\n\n5 ILCS 120/ 1 (West 2018).\n\nSection 2(a) of OMA\n\nas amended by Public Acts 101- 031, effective June 28, 2019;\n\n101- 459, effective August 23, 2019) provides that all meetings of a public body shall be open to\n\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n\n2(c) of OMA. The section\n2(c) exceptions are to be \" strictly construed, extending only to\ntheir\nsubjects\n\nclearly within\n\nscope.\"\n\n5 ILCS 120/ 2(b) (West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019.\n\nThe Board's response to this office explains that it discussed the District's\npotential purchase of the former First Midwest Bank building in downtown Waukegan at four\nclosed session meetings. Those meetings occurred on June 4, 2019, June 25, 2019, August 13,\n\n2019, and September 10, 2019, and the Board entered closed session pursuant to section 2(c)(5)\nof OMA at each of those sessions. Section 2(c)(5) of OMA permits closed session discussion of:\n5)\n\nThe purchase or lease of real property for the use of the\n\npublic body, including meetings held for the purpose of discussing\nwhether a particular parcel should be acquired.\n\nIn Galena Gazette Publications Inc., v. County ofJo Daviess, 375 Ill. App. 3d 338\n\n2d Dist. 2007), the Illinois Appellate Court considered a closed session meeting held to discuss\n\nthe possibility of leasing a specific property for its use. There, the plaintiff conceded that the\n\npublic body could permissibly discuss the material terms of the lease in closed session, but\nargued that the scope of section 2(c)(5) did not extend to \" peripheral matters\" that were raised,\n\nsuch as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at\n344. The court disagreed, finding that nothing in the language of section 2(c)(5) distinguishes\nmaterial\"\n\nmatters\n\nfrom\n\nperipheral\n\nthe court noted that one of the topics the public body discussed was the racking of promotional\nbrochures within the leased property, and concluded:\n\nEven when participants discussed the racking of promotional\nbrochures at the Old Train Depot— past, present,\n\nor future—\n\nthey\n\ndid so only because it was pertinent to the terms, effects, or\n\ndesirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature\n\nseparately from their consideration of the proposed subleasing\narrangement* * *.\n\nTo abstract any such discussions from the\n\nlarger context would ignore the participants' purposes in raising the\nissue of the display of promotional materials. Galena Gazette, 375\n111. App. 3d at 344.\n\nThe court added that it would be impractical for the public body to have a\nmeaningful\ndiscussion of the lease terms if it was precluded from discussing related details\nto\n\nneeded\n\nput\n\nthe terms in context.\n\nGalena Gazette, 375 Ill. App. 3d at 345.\n\nBecause the public\n\nbody's closed session discussion centered on considerations involving the potential lease, and\nbecause its consideration of the proposed lease was affected by related details that the Board also\ndiscussed, the court held that the entire closed session discussion was proper under section\n\n2(c)(5).\n\nGalena Gazette, 375 Ill. App. 3d at 346. See also Ill. Att'y Gen. PAC Req. Rev. Ltr.\n\n24866, issued February 10, 2020, at 3 (determining that the public body's entire discussion fell\nwithin the scope of section 2(c)(5) of OMA, because any \" peripheral matters\" discussed \" were\nconsiderations\n\nnecessary\n\nin the context of\n\ndeliberating on the potential property acquisition\");\n\n111.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 35947, issued August 28, 2015, at 3 (finding that a city council's\nclosed session was proper because all matters discussed were \" clearly integral to the Council's\nconsideration of whether to proceed with the purchase proposal\").\n\nIn her Request for Review, Ms. Coleman argues that discussion of \"possible\nrenovation costs associated with the building's purchase, the educational and administrative\n\nrationale for purchasing the building and what would happen with the building that currently\n\noffices the district's administrative offices\" go beyond a discussion of \"the actual purchase of the\n\nbuilding.\"\n\n2\n\nThe Board rejects this interpretation of section 2(c)(5) as \" overly restrictive,\"\n\narguing:\n\nD] iscussion by the Board concerning the subject of whether the\n\nparcel should be acquired at all, i.e., need for the property, fairly\nOctober\n\n1, 2019).\n\n2E -mail from Emily Coleman to Public Access [ Bureau, Office of Illinois Attorney General]\n\nfall within the exception. Certainly, need is pertinent to a decision\non the amount of any offer. A parcel that is essential to the public\n\nbody has more value than a parcel that has little or marginal utility.\n\nLikewise, a property with systemic flaws or inefficiencies probably\nrequiring immediate outlays would conunand a lower offering\nprice than a property in pristine condition.\n\nThe Board submits that its closed session discussions about\nwhether it was appropriate to acquire the [ First Midwest Bank]\n\nbuilding. were reasonably related to the issues of pricing, worth and\nneed[ Atil\n\nThe appellate court's decision in Galena Gazette makes clear that a discussion of\n\nwhether a parcel should be acquired\" can include discussion of whether and how a parcel would\n\nbe useful to a public body. Similarly, a discussion of the potential purchase of a parcel\n\ncommonly includes discussion ofpurchase price, and the anticipated costs of renovating a\n\nparticular parcel are intertwined with consideration of the appropriate purchase price for the\n\nparcel. Therefore, a public body's discussion of whether it needs a parcel, how it would use a\nparcel, and whether purchasing a parcel would saddle a public body with necessary renovation\nexpenses fall within the scope of a discussion of \"whether a parcel should be acquired.\"\n\nBased on this office's confidential review of the closed session recordings of each\n\nof the four meetings, the Board primarily discussed whether to purchase the First Midwest Bank\n\nbuilding, including the basic terms ofthe transaction and the benefits to the District ofacquiring\n\nthe property. The District also discussed other details that were integral to its deliberations on\nthe potential property acquisition. Because the verbatim recordings of the meetings, as well as\n\nthe Board's argument concerning these specific topics, were provided to this office confidentially\nfor purposes of this review, this office is not permitted to further describe the topics discussed or\nto comment on whether the Request for Review accurately describes the matters discussed at the\nclosed session meetings. This office has thoroughly reviewed the verbatim recordings, and has\n\ndetermined that the Board's discussions did not exceed the scope of section 2(c)(5) of OMA.\n\n3 Letter from Thomas A. Morris, Jr., General Counsel, Community Unit School District No. 60, to\n\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (October 25,\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Please contact me at (312) 814- 6437 or the\nChicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nLEAH BARTELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n59963 o 2c5 proper sd"}
{"id":1319,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-10-09","case_number":null,"request_numbers":["60015"],"title":"City of Elmhurst Finance Committee allowing informational update not on agenda","filename":"60015, issued October 9, 2019.pdf","rel_path":null,"word_count":859,"summary":"A requester alleged that the City of Elmhurst's Finance, Council Affairs, and Administrative Services Committee violated the Open Meetings Act by discussing an item not listed on the agenda. The PAC determined that the committee only received an update and did not substantively discuss the item, warranting no further action.","plain_summary":"A citizen complained that a city committee discussed a topic during a meeting that wasn't listed on the official agenda. The Attorney General's office reviewed the matter and found that the committee only received an informational update rather than holding a formal discussion. Because no actual deliberation took place, the PAC closed the case with no further action required.","holding":"The PAC concluded that no violation occurred because the committee members did not engage in substantive discussion or consideration of the unlisted item.","legal_question":"Whether a public body violates the Open Meetings Act by receiving an informational update on a topic not specifically listed on the meeting agenda.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Elmhurst Finance, Council Affairs, and Administrative Services Committee","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester alleged that the committee discussed an item not included on the special meeting agenda.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/60015, issued October 9, 2019.pdf","sha256":"6052c421ccd637a5c151a26d36c62f65430db06755c740ec547b02b615c3fbd4","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","open meetings act","public notice","committee meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 9, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review — 2019 PAC 60015\nDear\n\nThis determination letter is issued pursuant to section 3. 5( b) of the Open Meetings\nAct ( OMA) ( 5 ILCS 120/ 3. 5( b) ( West 2018)).\n\nFor the reasons set forth below, the Public Access\n\nBureau concludes that no further action in this matter is warranted.\n\nOn October 4, 2019, you submitted this Request for Review to the Public Access\n\nBureau alleging that the City of Elmhurst' s ( City) Finance, Council Affairs, and Administrative\n\nServices Committee ( Committee) violated OMA during its September 10, 2019, special meeting\nby discussing an item that was not specifically set forth under the agenda item \" Other Business.\"'\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2018)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\nmust include a summary of the facts supporting the allegation.\"\nEmphasis added.)\n\nSection 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2018)) provides, in relevant\n\npart, that \"[ p] ublic notice of any special meeting except a meeting held in the event of a bona\n\nfide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be\ngiven at least 48 hours before such meeting, which notice shall also include the agenda for the\nspecial, rescheduled,\n\nor\n\nreconvened meeting[.]\"\n\nSection 2. 02( a) further states that \"[ t] he\n\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nspecifically\n\nset\n\nforth in the agenda\" (\n\nElmhurst\n\nEmphasis added.)\n\nCity Council, Finance,\n\nGiven this language, the Public Access\n\nCouncil Affairs, & Administrative Services Committee, Agenda\n\nItem 6, Other Business ( September 10, 2019), available at https:// go. boarddocs. com/ il/ coe/ Board. nsf/Public.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fOctober 9, 2019\nPage 2 ,\n\nBureau has determined that, during special meetings, OMA does not permit a public body to\ndiscuss, topics that were not listed on the agenda. See, for example, Ill. Att' y Gen. PAC Req.\nRev. Ltr. 32604, issued April 9, 2015, at 3 (\" The General Assembly' s express provision for\nconsideration of items not on the agenda at a regular meeting coupled with its silence concerning\nconsideration of items not on the agenda at a special meeting signifies that the General Assembly\ndid not intend to allow a public body to consider items that are not on the agenda of a special\nmeeting.\")\n\nYou alleged that the following portion of the Committee' s September 10, 2019,\nmeeting minutes demonstrated improper discussions by Committee members on an item not\nlisted\n\non\n\nthe' agenda\n\nCommittee\n\nfor that special meeting: \" Director of Finance Trosien updated the\nof the Line of Credit renewal/ modification.\"'\nThis portion of the\n\non the status\n\nminutes indicates that the Committee received a status report from an individual officer who\ndoes not serve on the Committee; there is no indication that the Committee discussed or\n\ndeliberated on the update. Although it may have been the best and most transparent practice for\n\nthe Committee to include the finance director' s update on the agenda, construing OMA to\npreclude a public body from receiving any information that does not appear on a special meeting\nagenda would unreasonably constrain a public body' s ability to function during a meeting.\nMerely receiving an update does not rise to the level of discussions or \" the consideration of\nitems\" by Committee members under section 2. 02( a) of OMA. Because you have not provided\n\nany evidence that Committee members substantively discussed the finance director' s update, you\nhave not provided facts supporting the allegation that the Committee violated section 2. 02( a) of\nOMA. Accordingly, this office has determined that no further action is warranted as to this\nmatter.\n\nThis letter serves to close this file. If you have any questions, you may contact\nme at ( 217) 785- 7438 or cboggs@atg. state. il. us.\nVery truly yours,\n\nHRISTOPHER R. BOGGS\n\nSupervising Attorney\nPublic Access Bureau\n60015 o no fi war mun\n\nElmhurst City Council, Finance, Council Affairs, & Administrative\nMeeting, September 10, 2019, Minutes ( unnumbered), available at\n\nhttps:// go. boarddocs. com/ il/ coe/ Board. nsf/ Public.\n\nServices Committee,\n\n\fOctober 9, 2019\nPage 3\n\ncc:\n\nThe Honorable Noel Talluto\nChair, Finance, Council Affairs, & Administrative\n\nElmhurst City Council\nCity Hall\n209 North York Street\nElmhurst, Illinois 60126\n\nServices Committee\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Informational update on an unlisted agenda item","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60015/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 9, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review — 2019 PAC 60015\nDear\n\nThis determination letter is issued pursuant to section 3. 5(b) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3. 5(b) (West 2018)).\n\nFor the reasons set forth below, the Public Access\n\nBureau concludes that no further action in this matter is warranted.\n\nOn October 4, 2019, you submitted this Request for Review to the Public Access\n\nBureau alleging that the City of Elmhurst's (City) Finance, Council Affairs, and Administrative\n\nServices Committee (Committee) violated OMA during its September 10, 2019, special meeting\nby discussing an item that was not specifically set forth under the agenda item \" Other Business.\"'\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2018)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\nmust include a summary of the facts supporting the allegation.\"\nEmphasis added.)\n\nSection 2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2018)) provides, in relevant\n\npart, that \"[ p] ublic notice of any special meeting except a meeting held in the event of a bona\n\nfide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be\ngiven at least 48 hours before such meeting, which notice shall also include the agenda for the\nspecial, rescheduled,\n\nor\n\nreconvened meeting[.]\"\n\nSection 2. 02(a) further states that \"[ t] he\n\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nspecifically\n\nset\n\nforth in the agenda\" (Elmhurst\n\nEmphasis added.)\n\nCity Council, Finance,\n\nGiven this language, the Public Access\n\nCouncil Affairs, & Administrative Services Committee, Agenda\n\nItem 6, Other Business (September 10, 2019), available at https:// go. boarddocs. com/ il/ coe/ Board. nsf/Public.\n\n,\n\nBureau has determined that, during special meetings, OMA does not permit a public body to\ndiscuss, topics that were not listed on the agenda. See, for example, Ill. Att' y Gen. PAC Req.\nRev. Ltr. 32604, issued April 9, 2015, at 3 (\" The General Assembly's express provision for\nconsideration of items not on the agenda at a regular meeting coupled with its silence concerning\nconsideration of items not on the agenda at a special meeting signifies that the General Assembly\ndid not intend to allow a public body to consider items that are not on the agenda of a special\nmeeting.\")\n\nYou alleged that the following portion of the Committee's September 10, 2019,\nmeeting minutes demonstrated improper discussions by Committee members on an item not\nlisted\n\non\n\nthe' agenda\n\nCommittee\n\nfor that special meeting: \" Director of Finance Trosien updated the\nof the Line of Credit renewal/ modification.\"'\nThis portion of the\n\non the status\n\nminutes indicates that the Committee received a status report from an individual officer who\ndoes not serve on the Committee; there is no indication that the Committee discussed or\n\ndeliberated on the update. Although it may have been the best and most transparent practice for\n\nthe Committee to include the finance director's update on the agenda, construing OMA to\npreclude a public body from receiving any information that does not appear on a special meeting\nagenda would unreasonably constrain a public body's ability to function during a meeting.\nMerely receiving an update does not rise to the level of discussions or \" the consideration of\nitems\" by Committee members under section 2. 02(a) of OMA. Because you have not provided\n\nany evidence that Committee members substantively discussed the finance director's update, you\nhave not provided facts supporting the allegation that the Committee violated section 2. 02(a) of\nOMA. Accordingly, this office has determined that no further action is warranted as to this\nmatter.\n\nThis letter serves to close this file. If you have any questions, you may contact\nme at (217) 785- 7438 or cboggs@atg. state. il. us.\nVery truly yours,\n\nHRISTOPHER R. BOGGS\n\nSupervising Attorney\n\ncc:\n\nThe Honorable Noel Talluto\nChair, Finance, Council Affairs, & Administrative\n\nElmhurst City Council\nCity Hall\n209 North York Street\nElmhurst, Illinois 60126\n\nServices Committee"}
{"id":1320,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-07-31","case_number":null,"request_numbers":["60134"],"title":"Chicago Crisis Intervention Advisory Committee violated OMA by holding meetings without notice","filename":"60134, issued July 31, 2020.pdf","rel_path":null,"word_count":5217,"summary":"The PAC determined that the Chicago Crisis Intervention Advisory Committee is a public body subject to the Open Meetings Act and failed to comply with its requirements regarding public notice, minutes, and access.","plain_summary":"A requester alleged that the Chicago Crisis Intervention Advisory Committee and its subcommittees held meetings without public notice, agendas, or minutes, violating the Open Meetings Act. The Illinois Attorney General's Public Access Bureau concluded that the Advisory Committee is a public body subject to OMA and that it improperly held meetings without adhering to the Act's requirements. The source document does not specify any particular remedies or orders beyond that conclusion.","holding":"The Chicago Crisis Intervention Advisory Committee improperly held meetings without adhering to the requirements of the Open Meetings Act.","legal_question":"Whether the Chicago Crisis Intervention Advisory Committee constitutes a 'public body' subject to the requirements of the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Chicago Crisis Intervention Advisory Committee","requesting_party":"Ms. Alexa I. Long (on behalf of the Board of Chicago)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The failure of a city advisory committee to open its meetings to the public and maintain required records.","ocr_status":"ok","ocr_quality":93.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/60134, issued July 31, 2020.pdf","sha256":"b21b51632bec97e75aae7b6f94f646c93d5d0317e653d64880c1f95d7e69ca79","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public body","open meetings","meeting notice","meeting minutes","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"• OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 31, 2020\n\nVia electronic mail\n., · ·\n. . . -.\n. '.\n\n'\"\\,•'\n\nVia ·eledrbnii/ mail\nM\"s.\" Al�xi� It Lohg.\nL�gi�lati\\re Specialist for Regulatory Matters\nLegal Counsel Division\nCity of Chicago\n121 North LaSalle Street, Suite 600\nCllicago, Illinois :60602 •\n�f¢*is. lo?�@�}jyo_fchi'cago.org\nt\n\nA•,/,\n\n•,'\n\n,\n\n-'\n\n'\n\n'\n\n•'\n\n·•• '•\n\n: -- • • : • .·>. • '.:: J:;\n\n,\n\n_ :•, '\n\n.\n\n� '..� , J\\�---��:�i fi;:':.J-1:.�\n\n.\n\n.\n\n,� .. :_: ·.:\n\n:-:-.i. � ·J\n\n!;�):<:L.: r>1�r.. ·:J,....\n\n'·'R1f· ·oMA Request for Review - 2019 PAC: 60134\n\n:,,.11\n\n, ,,\n\n·. �. � � ...: : -·�: r::: t� :.-:�:n.-:. .\n\n0•\n\n....\n\n•\n\n'\n\n.\n\n·\n\n·\n\n•\n\n·:\n\nDe� tirtd Ms. Long:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5_ILCS 120/3.S(e) (West 2018)). For the reasons explained below, the Public Access\nBureau cci�_c_hi1�s J�at the Chicago Crisis Intervention Advisory C.omriiittee (A9vi�9fa(\nCommittee)'is a public body that improperly held meetings without adhering to the--requirements\nof OMA.\n\nBACKGROUND\nOn October 11, 2019,\nn behalf of the\nBoard of Chicago, submitted a Request for Review to the Public Access Bureau alleging that the\nAdvisory Committee and its four subcommittees have held meetings without following the\nrequirements of OMA. She contended that the Advisory Committee is a public body subject to\nthe requirements of OMA, but 11as not opened its meetings to the public, posted notices and\nagendas in advance of the meetings, or kept meeting minutes. -explained that the\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-i090 • TTY: (877) 844-5461 • Fax: (217) 782�7046\nI 00 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\f•\n\n••\n\n' •\n\n,•.'.l'•···•\n\nJuly 31,. 2020,\nPage 2\n,.\n\nAdvisoif Cofu'Ihitiee was created pursuant to the Chicago Police Department Consent Decree\n(Consent Deere�) and directed this office to parts of the Consent Decree describing the creation\nof the ,Advis�ry Committee and its functions and membership. She noted that the City of\nChicago May6ris Office (Mayor's Office) chairs the Advisory Committee.•••• contended\nthat the Consent Decree \"show[s] the Advisory Committee is a part of the structure of and\naccountable to city government, has deliberative and investigative responsibilities, and its\nrecommendations:·1mpact the policies and practices of city government.\" 1 Based on records\nrelated to the Advisory Committee that she received in response to a Freedom oflnformation Act\n(FOIA) request-elieved that the Advisory Committee had met on at least a quarterly\nbasis and that it ,held a meeting on July 22, 2019. She asserted, however, that the records\nreflected that the sub-committees had met as recently as September 9, 2019, and September 13,\n2019. �ontended: \"No information is available that indicates that the [Advisory\nCommittee] posted notices and agendas for any of its quarterly meetings on either the Consent\nDecree, Chicago Police Department, or Mayor's websites.\"2 Likewise, she asserted that no\nnotices, agendas, or formal meeting·minutes were posted online for the Advisory Committee's\nfour subcommittees.\nAsap initial ma�er, section 3.5(a) of OMA (5 ILCS 120/3.S(a) (West 2018))\n.••• , ,\n\npr,0��1e�; !h p�1in'ei1t part:\n\nA person who believes that a violation of this Act by a\n• public body has occurred may file a request for review with the' •. ' •\n• Pubiic Access Counselor established in the Office of the Attorney\nGen�ral not later 60 days after the alleged OMA violation. If\nfacts concerning the violation are not discovered within the 60day ·period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\nIn this case, the Advisory Committee appears to have met on July 22, 2019, which is more than\n60 days befor- submitted her Request for Review. As noted above, however. . I Letter from\nPublic Access Counselor\n(October 11, 2019), at I.\n·.· ,·\n, • ,\n\n, to Sarah Pratt, lllinois\n\n.\n\n2\n\nLetter from\nPublic Access Counselor (Octo er\n\n,\n\nt.o Sarah Pratt, lllinois\n\n\fMs. Alexis R. Long\nJuly 31, 2020\nPage 3\n\nstated that prior to receiving records pursuant to a FOIA request on October 7, 2019, • she was not\naware ofthe-·meetings held by the Advisory Committee and its subcommittees because no\nebsites of the Mayor'sOffice or other public\nmeeting nqtic�� and' agendas were post\nfurther contended:\nbodies involved in the Consent Decree\n. On September 21, 2019, before submitting the record request, the\nConsent Decree Monitor was asked about the Advisory\n• _ Committee, its membership, and theOMA. She did not offer any\n• answers. It seems unfair to suggest that the average person\nexercising due diligence should have known where to look to find\n• out wpen and where and whether the [Advisory Committee] was\nmeeting when this information wasn't evident to the Consent\nDecree Monitor. [3 1\n. • • ; _ •. �\" _: � provided this office with facts sufficient to demonstrate that, despite\nhaving exerci.�ed reasonable diligence, she did not discover that the Advisory Committee and its\nsubcommittees had inet to discuss recommendations to the Mayor'sOffice within 60 days of its\nJuly 22, 2019\\ meeting. Although the Consent Decree provides that the Advisory C6mmittee is\nto·meet quarterly at minimum, 4 it does not specify the dates of those quarterly meetings. There\nis no indication that the City had provided public notice of the committee gatherings or posted\ncopies of any minutes of those gatherings. F urther S If·\nIleged that the subcommittees\nhave met as recently as September 2019, �within 60 days of her Request for Review\nsubmission onOctober 11, 2019. Because-id not discover the allegedOMA violations\nwithin 60 d/;lys ·despite using reasonable diligence, and because this Request for Review was\nJ liscovery of the allegedOMA violations, this complaint\nsubmitted within 60 days of I\nwas submitted within the time limits set out in section 3.5(a) ofOMA.\nOn October 22, 2019, this office forwarded a copy of the Request for Review to\nthe Mayor'sOffice and asked it to address the allegations i\nRequest for Review. In\nparticular, this offic� asked the Mayor'sOffice to addres\nclaim that the Advisory\nCommittee and its four subcommittees are \"public bodies\" as defined under section 1.02 of\nOMA.(5 IL{2S).20/l.02 (West 2018)). This office.asked the Mayor'sOffice to include\ninfom1atiop regarqing the governance and operations of those entities, such as their' membership,\nmeeti_ng schl';q�les, assigned duties, and the impact of their decisions or recommendatiol).s. On\nLetter .from --- Community Mental Health Board of Chicago, to Sarah Pratt, Illinois\nPublic Access Counselor (Oc'tober 11, 2019), Footnote 5, at 2.\n3\n\nState ofIllinois v. City of Chicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 129 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n4\n\n\f,J\n\nMs. Alexis R. Long.\nJuly 31, 2020\nPage 4\n\nNovember 4; 2019; this office received a written response from the City of Chicago Department\nof Law (Department) on behalf.of the Mayor's Office. On November 5, 2019, this office\nforwarded a copy of the written response t\n; she replied on December 20, 2019.\nDETERMINATION\n1n order that the-people shall be informed, the General Assembly firids and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2018).\n••11\n\n·section 1.02 of OMA (5 ILCS 120/1.02 (West 2018)) defines a \"public body\" as:\n• [A]ll legislative;·executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureat:ts, committees or commissions of this State, and any·\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\n• in part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nAn \"advisory body,\" for purposes of OMA, is an entity that has defined responsibilities and is a\nformal part of the structure of the public body that it advises. Board of Regents of Regency\nUniversity System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist. 1997). In contrast, OMA\n\"is not intended to open to the public the deliberations of merely informal advisory committees\nwho discuss internal\" affairs of a public body. Pope v. Parkinson, 48 Ill. App. 3d 797, 800 (4th\nDist. 1977). Factors to consider in determining whether a group constitutes an advisory body\nunder OMA include:\nwho appoints the members of the entity, the formality of their\nappointment; and whether they are paid for their tenure; the entity's\nassigned duties, including duties reflected in the entity's bylaws or\nauthorizing statute; whether its role is solely advisory or whether it\nalso has a deliberative or investigative function; whether the entity·\n•. is subject to government control or otherwise accountable to any\n. public body; whether the group has a budget; its place within the\n• • larger organizati9n or institution of which it is a part; and the\nimpact of decisions or recommendations that the group makes.\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856,\n. 865 (1st Dist. 2003).\n\n\fMs. Alexis R. Long\nJuly 31, 2020.\nPage-5\n\nIn Stukel, the plaintiff alleged that a group of presidents and chancellors of public\nuniversities (Co'uncil), which made recommendations to the Illinois Board of Higher Education\n(IBHE), viola�ed OMA by meeting privately before IBHE meetings to discuss issues related to\nfunding for public education. 8_tukel, 344 Ill. App. 3d at 857-58. The court held that the Council\nwas not an advisory body of IBHE in part because it was not incorporated into the formal\norganizational structure of IBHE, a factor that the court identified as a \"primary consideration in\ndetermining whether an organization is a public body under the Meetings Act.\" Stukel, 344 Ill.\nApp. 3d at 865: The court explained that \"the Council was formed by the presidents and\nchancellors of the various state universities to express its views to the IBHE. Granted, its role is\nadvisory but that role is one that the Council [and not IBHE] created.\" Stukel, 344 Ill. App. 3d at\n866. The court also noted that the plaintiffs complaint did not allege that the group had a\n\"deliberative or investigative function in relation to the IBHE or thatthe Council is subject to\ngovernment control. It does not appear that the Council is otherwise accountable to any public\nbody. It does not appear to have a budget[.]\" Stukel, 344 Ill. App. 3d at 866. Further, \"no\nmember of th:e' Council is a member of the IBHE.\" Stukel, 344 Ill. App. 3d at 866; see also Pope\nv. Parkinson,' 48 Ill. App. 3d 797, 800 (4th Dist. 1997) (committee of four faculty members .and\nfour students that advised director of sports stadium and chancellor was not an advisory body\nbecause OMA \"is not intended to open to the public the deliberations of merely informal\nadvisory committees who discuss internal University affairs.\"); People ex rel. Cooper v. Carlson,\n28 Ill. App. 3d 569, 572 (2d Dist 1975) (OMA does not apply to voluntary \"technical staff'\nmeetings of \"department heads.or employees who seek to improve with dispatch their\nperformance pr function of assisting in the conduct of the people's business.\").\n• ·conversely, in Reynard, the appellate court concluded that the Athletic Council.of\nIllinois State University (ISU) was an advisory body subject to FOIA. Reynard, 292 Ill. App. 3d\nat 979. The Athletic Council serves \"as an advisory body to the athletic director, with primary\nadvisory responsibility to the president. It gives advice on the development of budgets and\npolicies governing the intercollegiate athletic program.\" Reynard, 292 Ill. App. 3d at 971. The\nathletic director \"is free to reject its advice and there have been occasions when he has done so.\nThe Council deals only with internal ISU matters, it has no budget, and none of its members are\npaid.\" Reynard, 292 Ill. App. 3_d at 972. In concluding that the Athletic.Council was an advisory\nbody subject to the requirements of OMA, however, the court emphasized that the Council is\n\"part of the formal organizational structure of ISU and its duties and responsibilities are set forth\nin the supplement [to the bylaws of the ISU Senate]. The broad scope of the Council's\nresponsibilities as set forth in the supplemerit contrasts sharply with the limited duties or the\ncommittee in Pope [v. Parkinson}.\" Reynard, 292 IIL App. 3d at 978.\nIn this case, the Consent Decree between the State of Illinois and the City of\nChicago (City) requires the City to implement various reforms to the Chicago Police\n\n\fMs. Alexis R. Long\nJuly 31, 2020\nPage 6\nDepartment; ·the decree was approved by a Federal judge on January 31; 2019.5 Part IVofthe\nConsent Decree addresses reforms to improve behavioral and mental health crisis interventions.6\nRelevant to Jhis matter, sectionI, paragraph 128, of that part provides that \"[t]he City will have a\ncri,sis intervention response advisory committee (\"Advisory Committee\") with subject matter\nexpertise and experience that will assist in identifying problems and developing solutions and\ninterventions' designed to improve outcomes for individuals in crisis who require City services. \" 7\nParagraph 129 further provides: \"The Advisory Committee, at a minimum, will meet quarterly to\nreview and recommend improv�ments to the City's overall response to individuals in crisis, with\nconsideration to areas·.such as coordinated crisis response; data collection and evaluation;\ncommunity engagement and awareness; service outreach and prevention; and the CIT [Crisis\nIntervention Team] Program.\" 8\nclaim that the\nIn: its response to this office, the Department dispute\nAdvisory Cormnittee and its four subcommittees are \"public bodies\" su �ect to the requirements\nof OMA. The ])epartment confirmed that the Mayor's Office chairs the Advisory Committee,\nwhich is comprised \"of volunteer organizations and individuals, with expertise and experience in\ncrisis intervention, who meetquarterly at a minimum.\"9 According to the Department, \"[t]he\nAdvisory Committee independently chose to form subcommittees to efficiently achieve its\nobjective. 1110 The Department argued that the Advisory Committee did not meet the\ncharacteristics of a public body.\nChicago Police Consent Decree, Consent Decree Fact Sheet (last visited June 9, 2019),\nhttp://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/Consent-Decree-Fact-Sheet-Jan-31-2019.pdf.\n5\n\n6\nState ofIllinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis Intervention\n(filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT­\nDECREE-SIGNED-BY-JUDGE-DOW.pdf.\n\nState of Illinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIntervention, 1. Advisory Committee, 128 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n7\n\n8\nState �fIllinois v. City of Chicago, Case No. I 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, 1. Advisory Committee, 129 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at I.\n9\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law,.to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at I.\n'\n\n10\n\n\f11111!1!\nJuly 31, 2020.\nPage 7\n\nTo determine whether the Advisory Committee is a \"public body\" under OMA,\nthis office will evaluate the Department an� arguments under the Stukel factors ..\n(1)\nWho appoints the members of the entity, the formality\nof their appointment, and whether they are paid for their\ntenure\n\nThe Department asserted that members of the Advisory Committee are not\nappointed but instead invited to participate and represent \"a collection of City and local\ngovernment agencies and departments, academic researchers, community organizations,\nadvocacy groups, and individuals.\"11 The Mayor's Office invites participants in accordance with\nthe Consent Decree, which provides:\n. '132. The Advisory Committee will be chaired by the\nMayor's Office. The Mayor's Office will invite individuals who\nhave personally experienced a behavioral or mental health crisis,\npeople with experience working with individuals in crisis, and\nexperts with knowledge in law enforcement responses to\nindividuals in crisis. At a minimum, the Mayor's Office will invite\nindividuals from the following groups: first responders; the CIT\nCoordinator; OE.MC; county and city hospitals, health care\nprovid�rs, and mental health professionals; the Cook County\n• State's Attorney's Office; the Cook County Public Defender's\nOffice; at least one academic research entity; community\nbehavioral and mental health professionals; advocacy groups for\nconsumers of behavioral and mental health services; behavioral\nand mental health service providers; homeless service providers;\nsubstance abuse service providers; persons with lived experiences\nof behavioral or mental health crises; and other similar groups.l121\n\n11\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 2.\n\nState ofIllinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, '132 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n12\n\n\fJuly 31, 2020,,\nPage 8\nThe Department cOntended that it did not have a formal appointment or selection process,\nasserting that the invited organizations select their own representatives to participate. The\nDepartment further contended that the Advisory Committee is not accountable to the City, and\nmembers do not face consequences if they do not attend. Additionally, the Department stated\nthat members are not paid for their participation.\n(2)\nThe entity's assigned duties, including duties reflected •\nin the entity's bylaws or authorizing statute\nThe Department stated that the Advisory Committee has neither bylaws nor an\nauthorizing statute. It argued that the Advisory Committee provides only technical expertise on\na single subject matter. In particular, the Department argued that \"the Advisory Committee has a\nvery limited purpose, which is to make recommendations to improve crisis response[,]\" as set\nforth in the Consent Decree. 13 The Consent Decree provides that:\n130. The City will request that the Advisory Committee\n• provide guidance ori. crisis response-related policies, procedures,\n. _and training of City agencies; including CPD and OEMC, and\nassist the City in developing and expanding current strategies for\nresponding to individuals in crisis, including reducing the need for\npolice-involved responses to individuals in crisis and developing\nmunicipal and community resources, such as pre- and post-:arrest\ndiversion resources and alternative response options (like drop-off\ncenters, mobile crisis teams, a central non- emergency crisis line).\nThe City will further request that in providing the guidance\ndetailed above the Advisory Committee will consider specific\nstrategies for responding to children and youth when they\nexperience a behavioral or mental health crisis.l 141\nIn her reply to this offic�iisputed the Department's characterization �f\nthe role of the Advisory Committee as informal �d limited. She emphasized the significance of\nthe Consent Decree, asserting that extensive negotiations, deliberations, and public input went\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,·\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 4.\n13\n\nState ofIllinois v. City of Chicago, Case No. I 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 130 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n14\n\n\fMs. Alexis R. Long\nJuly 31, 2020\nPage 9\n\ninto the development of the Consent Decree. She also argued that \"[t]he Consent Decree has the\nsame effect as a government resolution or statute and can be enforced by the court if the parties\nto the agreement do not comply with the orders.\" 15\n(3)\nWhether the entity's role is solely advisory or whether\nit also has a deliberative or investigative function\n\nThe Department argued that the Advisory Committee is solely advisory, as its\n\"only role is to advise on the single issue of crisis intervention response.\" 16 The Department also\nargued that the Advisory Committee did not have any investigative or deliberative role..\nAccording to the Department, \"[t]he final product of the Advisory Committee meetings will be\nrecommendations the City may. choose to accept or reject.\" 17\ngued that the Advisory Committee's duties and meeting materials\nestablished tliat 1t 1s a e iberative body. She emphasized that the Consent Decree required the\nCity to respoi1d to the Advisory Committee's recommendations and provide reasons for not\nadopting recommendations.\n(4)\nWhether the entity is subject to government control or\notherwise accountable to any public body\n\nThe Department asserted that the Advisory Committee is not subject to control by\na public body. The Department acknowledged that the Mayor's Office chairs the Advisory\nCommittee, but argued that it did not have control over the Committee's work or\nrecommendations, and that most of the members \"are organizations with no connection to the\nCity.\" 18 The Department contended that the Advisory Committee \"does not possess any control\nover any part of the government, nor is it controlled by any public body.\" 19\n15\n\nE-mail fro\n\nAAG Teresa Lim (December 20, 2019).\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 5.\n16\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 5.\n17\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 5.\n18\n\n\fJuly 31, 2020\nPage 10\n\nontended that the Mayor's Office has significant control over the\nAdvisory Committee:\nhe Mayor manages the [Advisory Committee], chooses [Advisory\nCommittee] member organizations, and published the [Advisory Committee]'s first\nrecommendations in a document that displays the City of Chicago seal on its cover. 1120\n(5)\n\nWhether the group has a budget\n\nThe Department stated that the Committee does not have a budget of its own.\noted that although the Advisory Committee did not have its own budget, the City\na ocate a continued investment of $25 million in its 2020 budget for compliance with the\nConsent Decree.\n(6)\nThe entity's place within the larger organization or\ninstitution of which it is a part\n\n. The Department asserted, in pertinent part: \"[The Committee] is not in itself a\n• government department with any regulatory authority, but rather a group of volunteers. The\nAdvisory Committee, formed through Consent Decree, is merely an ad hoc group created for a\nsingle task; it is not a part of the larger structure of City government.\"21\n(7)\nThe impact of decisions or recommendations that the\ngrou·p makes\n\nThe Department argued that the Advisory Committee's recommendations are non­\nbinding. The Depar�ment contended that while the Consent Decree provided a procedure for\nresponding to the Advisory Committee's recommendations, the City could decline any of those\nrecommendations. Additionally, the Department argued that the Advisory Committee could not\ntake any final actions or make any decisions on behalf of the City.\n\n' . 19 Letter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa-Lim, Assistant Attorney General, Public Ac.cess Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 6.\n20\n\nE-mail from Jud-o AAG Teresa Lim (December 20, 2019).\n\n21 Letter.from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Off.ice of the Attorney\nGenen1I, State of Illinois (November 4, 2019), at 6.\n\n\fJuly 31, 2020\nPage 11\n_ ·._ After reviewing both partiesi arguments in light of the Stukel factors, this office\nconcludes tha:fthe Advisory Committee is a public body subject to t�e requirements of OMA.·\nBlack's Law Dictionary defines· a \"consent decree\" as \"[a] court decree that all parties agree to.\"\nBlack's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS. The Consent Decree is\na legally enforceable agreement. . Therefore, even though the Advisory Committee was not\ncreated pursuant to an authorizing statute, ordinance, or resolution, the City was nevertheless\nlegally bound to create the Advisory Committee according to the terms of the Consent Decree.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 44489, issued February 15, 2018,\n(concluding that an advisory board, formed-pursuant to an intergovernmental agreement,\nconstituted a \"public body\" under OMA where the board exhibited, in part, characteristics of a\npublic body under the Stukel factors).\nAlthough the Advisory Committee does not have bylaws, the Consent Decree\nspecifically sets forth the Advisory Committee's responsibilities, composition, and minimum\nmeeting schedule, which-signal the formality of the Advisory Committee. In contrast to the\nDepartment's claim that the Advisory Committee serves a limited purpose and merely advises on\nthe topic of \"crisis intervention response,\" the Consent Decree gives the Advisory Committee\nbroad advisory duties covering a wide range of issues within that topic. Those issues impact\nmultiple city agencies. In addition to the duties listed above in paragraph 130, the Consent\nDecree also requires that:\n131. Within 365 days of the Effective Date, the City will\nrequest that the Advisory. Committee identify and evaluate in\nwriting any opportunities to develop or enhance crisis response­\nrelated policies, procedures, and training of City agencies,\nincluding CPD, OEMC, and the Chicago Fire Department, and\nincrease municipal and community resources and alternative\nresponse options, including rapid-access clinics, drop-off centers,\nmobile crisis teams, a central non-emergency crisis line, other pre­\nand post-arrest diversion efforts, and strategies targeted at children\nand youth. The City will also request that the Advisory Committee\nidentify and evaluate the steps necessary to develop non-criminal\njustice responses to individuals in crisis, including, but not limited\nto, a behavioral health unit to provide alternative non-criminal\njustice responses to individuals in crisis. In evaluating potential\ncommunity resources and strategies, the Advisory Committee will\n\n\f\"\n\n- -\n\nJuly 31, 2020\nPage 12\n\n• !.\n\nidentify challenges and opportunities for improvement, if any, and\ninake recommendations. (221\n. Further, ',1/hile the Advisory Committee does not have investigative powers, it is\nrequired, pursuant to paragraph 131, to exercise deliberative functions to \"identify and evaluate\"\nspecific opportunities and to develop recommendations on a range of topics. In addition, the\nAdvisory Committee's input is requested throughout the Consent Decree's provisions, which also\nrequire deliberative powers. For instance, the Consent Decree provides that: (1) \"[t]he CIT\nProgram will seek input from the Advisory Committee in the development of the refresher •\ntraining\"; 23 (�) \"OEMC will consider the response to, identification of, and dispatch of calls for\nservice involving individuals in crisis by OEMC tele-communicators, * * * and any feedback\nand recommendations from the Advisory Committee\" in developing a Crisis Intervention Plan; 24\nand (3) \"CPD will seek irtput from community stakeholders, including the Advisory Committee,\nfor recommendation.s to identify appropriate and respectful terminology\" to communicate about •\nincidents involving individuals in crisis. 25\n. Regarding governmental control, the Mayor's Office appears to play a\nconsiderable'role'as the chair in facilitating meetings. Notably, the Consent Decree gave the\nMayor's Office authority to invite individuals to join the Advisory Committee. Representatives\nfrom other City departments also participated as committee members, suggesting that the City •\nhad some influence over the development of the Advisory Committee's recommendations.\nA_lthough the Advisory Committee does not have a budget of its own or provide\ncompensation for its members, this office has previously concluded that the absence of direct\npublic funding for an entity is not dispositive for purposes of determining whether the entity\nconstitutes a public body under OMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\nState ofIllinois v. City ofChicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 131 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n22\n\nState of Illinois v. City ofChicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIritervention, C. Certified CIT Officer. Designation, 99 (filed January 31, 2019),\nhttp://chicagopoIiceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED�BY­\nJUDGE-DOW. pdf.\n23\n\nState ofIllinois v. City ofChicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, G. Crisis Intervention Plan, 122 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n24\n\n25Stat; ofIllinois v. City a/Chicago, Case No. 17-cv-6260, Consent Decree, IV� Crisis\nIntervention, J. Crisis Intervention Policies, 135 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n\n\f-\n\nJuly 31, 2020\nPage 13\nT\n\n..\n\n•\n\n:.\n\n44489, issued February 15, 2018; Ill. Att'y Gen. PAC Req: Rev. Ltr. 50176, issued December 5,\n2018.\n• •\n\n• • ·Finally, even though the Advi o Committee's recommendations are nonbinding, they have a: meaningful impact As ll\nemphasized, Paragraph 131 of the Consent\nDecr�·e requires the City to respond to each o t e visory Committee's recommendations:\nThe City will address the feedback and recommendations\nidentified by the.Advisory Committee, including identifying\nrecommendations that it will adopt, arid the plan for\nimplem'entation, in the Crisis Intervention Plan. The City will\nrespond to each of the recommendations made by the Advisory\n·committee. The response will include a description of the\nactions that CPD has taken or plans to take with respect to the\nissues raised in \"the recommendations. If the City declines to\nimplement a recommendation, it will explain the reason(s) for\ndeclining.(261 (Emphasis added.)\n\nThe Department minimizes the import of the Advisory Committee's recommendations by\nasserting that the City can decline them, but it failed to acknowledge th� significance of the\nConsent Decree's prov1sion that the City must justify any decision to decline one of the\nrecommendations. The ·requirements described in Paragraph 131 indicate that the Advisory\nCommittee is more than ·an informal advisor and that the City cannot treat the Advisory.\nCommittee's recommendations as mere suggestions, but must carefully consider them. Further,\nrecommend'!,tions by an \"advis()ry\" body are inherently non-binding.\n\nAccordingly, this office concludes that the Advisory Committee is a \"public\nbody\" subject the requirements of OMA. This office requests that the Advisory Committee\nconduct all future meetings in accordance with the provisions of OMA. Among other things, the\nAdvisory Committee should provide advance notice of its meetings (5 ILCS 120/2.02 (West\n2018)), keep written minutes (5-ILCS 120/2.06(a) (West 2018)), and provide members of the\npublic with an opportunity to address Advisory Committee members (5 ILCS 120/2.06(g) (West\n2018)). This office also requests that Advisory Committee members complete the OMA\nelectronic training curriculum developed and administered by the Public Access Counselor. See\n5 ILCS 120/1.05 (West 2018).\nState_ of Illinois v. City of Chicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 131 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n26\n\n\f,'\n\n-.: .. .. .. July 31, 2020\n• Page 1.4\n\n• !\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a bi�ding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n60134 o vio mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An advisory committee's closed meetings and missing records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60134/","full_text":"• OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 31, 2020\n\nVia electronic mail\n., · ·\n... -.\n. '.\n\n'\"\\,•'\n\nVia ·eledrbnii/ mail\nM\"s.\" Al�xi� It Lohg.\nL�gi�lati\\re Specialist for Regulatory Matters\nLegal Counsel Division\nCity of Chicago\n121 North LaSalle Street, Suite 600\nCllicago, Illinois:60602 •\n�f¢*is. lo?�@�}jyo_fchi'cago.org\nt\n\nA•,/,\n\n•,'\n\n,\n\n-'\n\n'\n\n'\n\n•'\n\n·•• '•\n\n: -- • •: •.·>. • '.:: J:;\n\n,\n\n_:•, '\n\n.\n\n� '..�, J\\�---��:�i fi;:':.J-1:.�\n\n.\n\n.\n\n,�..:_: ·.:\n\n:-:-.i. � ·J\n\n!;�):<:L.: r>1�r.. ·:J,....\n\n'·'R1f· ·oMA Request for Review - 2019 PAC: 60134\n\n:,,.11\n\n,,,\n\n·. �. � �...:: -·�: r::: t�:.-:�:n.-:..\n\n0•\n\n....\n\n•\n\n'\n\n.\n\n·\n\n·\n\n•\n\n·:\n\nDe� tirtd Ms. Long:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5_ILCS 120/3.S(e) (West 2018)). For the reasons explained below, the Public Access\nBureau cci�_c_hi1�s J�at the Chicago Crisis Intervention Advisory C.omriiittee (A9vi�9fa(Committee)'is a public body that improperly held meetings without adhering to the--requirements\nof OMA.\n\nBACKGROUND\nOn October 11, 2019,\nn behalf of the\nBoard of Chicago, submitted a Request for Review to the Public Access Bureau alleging that the\nAdvisory Committee and its four subcommittees have held meetings without following the\nrequirements of OMA. She contended that the Advisory Committee is a public body subject to\nthe requirements of OMA, but 11as not opened its meetings to the public, posted notices and\nagendas in advance of the meetings, or kept meeting minutes. -explained that the\n\n,.\n\nAdvisoif Cofu'Ihitiee was created pursuant to the Chicago Police Department Consent Decree\n(Consent Deere�) and directed this office to parts of the Consent Decree describing the creation\nof the,Advis�ry Committee and its functions and membership. She noted that the City of\nChicago May6ris Office (Mayor's Office) chairs the Advisory Committee.•••• contended\nthat the Consent Decree \"show[s] the Advisory Committee is a part of the structure of and\naccountable to city government, has deliberative and investigative responsibilities, and its\nrecommendations:·1mpact the policies and practices of city government.\" 1 Based on records\nrelated to the Advisory Committee that she received in response to a Freedom oflnformation Act\n(FOIA) request-elieved that the Advisory Committee had met on at least a quarterly\nbasis and that it,held a meeting on July 22, 2019. She asserted, however, that the records\nreflected that the sub-committees had met as recently as September 9, 2019, and September 13,\n2019. �ontended: \"No information is available that indicates that the [Advisory\nCommittee] posted notices and agendas for any of its quarterly meetings on either the Consent\nDecree, Chicago Police Department, or Mayor's websites.\"2 Likewise, she asserted that no\nnotices, agendas, or formal meeting·minutes were posted online for the Advisory Committee's\nfour subcommittees.\nAsap initial ma�er, section 3.5(a) of OMA (5 ILCS 120/3.S(a) (West 2018))\n.•••,,\n\npr,0��1e�; !h p�1in'ei1t part:\n\nA person who believes that a violation of this Act by a\n• public body has occurred may file a request for review with the' •. ' •\n• Pubiic Access Counselor established in the Office of the Attorney\nGen�ral not later 60 days after the alleged OMA violation. If\nfacts concerning the violation are not discovered within the 60day ·period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\nIn this case, the Advisory Committee appears to have met on July 22, 2019, which is more than\n60 days befor- submitted her Request for Review. As noted above, however.. I Letter from\nPublic Access Counselor\n(October 11, 2019), at I.\n·.·,·\n, •,\n\n, to Sarah Pratt, lllinois\n\n.\n\nstated that prior to receiving records pursuant to a FOIA request on October 7, 2019, • she was not\naware ofthe-·meetings held by the Advisory Committee and its subcommittees because no\nebsites of the Mayor'sOffice or other public\nmeeting nqtic�� and' agendas were post\nfurther contended:\nbodies involved in the Consent Decree\n. On September 21, 2019, before submitting the record request, the\nConsent Decree Monitor was asked about the Advisory\n• _ Committee, its membership, and theOMA. She did not offer any\n• answers. It seems unfair to suggest that the average person\nexercising due diligence should have known where to look to find\n• out wpen and where and whether the [Advisory Committee] was\nmeeting when this information wasn't evident to the Consent\nDecree Monitor. [3 1\n. • •; _ •. �\" _: � provided this office with facts sufficient to demonstrate that, despite\nhaving exerci.�ed reasonable diligence, she did not discover that the Advisory Committee and its\nsubcommittees had inet to discuss recommendations to the Mayor'sOffice within 60 days of its\nJuly 22, 2019\\ meeting. Although the Consent Decree provides that the Advisory C6mmittee is\nto·meet quarterly at minimum, 4 it does not specify the dates of those quarterly meetings. There\nis no indication that the City had provided public notice of the committee gatherings or posted\ncopies of any minutes of those gatherings. F urther S If·\nIleged that the subcommittees\nhave met as recently as September 2019, �within 60 days of her Request for Review\nsubmission onOctober 11, 2019. Because-id not discover the allegedOMA violations\nwithin 60 d/;lys ·despite using reasonable diligence, and because this Request for Review was\nJ liscovery of the allegedOMA violations, this complaint\nsubmitted within 60 days of I\nwas submitted within the time limits set out in section 3.5(a) ofOMA.\nOn October 22, 2019, this office forwarded a copy of the Request for Review to\nthe Mayor'sOffice and asked it to address the allegations i\nRequest for Review. In\nparticular, this offic� asked the Mayor'sOffice to addres\nclaim that the Advisory\nCommittee and its four subcommittees are \"public bodies\" as defined under section 1.02 of\nOMA.(5 IL{2S).20/l.02 (West 2018)). This office.asked the Mayor'sOffice to include\ninfom1atiop regarqing the governance and operations of those entities, such as their' membership,\nmeeti_ng schl';q�les, assigned duties, and the impact of their decisions or recommendatiol).s. On\nLetter.from --- Community Mental Health Board of Chicago, to Sarah Pratt, Illinois\nPublic Access Counselor (Oc'tober 11, 2019), Footnote 5, at 2.\n3\n\nState ofIllinois v. City of Chicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 129 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\n\nNovember 4; 2019; this office received a written response from the City of Chicago Department\nof Law (Department) on behalf.of the Mayor's Office. On November 5, 2019, this office\nforwarded a copy of the written response t\n; she replied on December 20, 2019.\nDETERMINATION\n1n order that the-people shall be informed, the General Assembly firids and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2018).\n••11\n\n·section 1.02 of OMA (5 ILCS 120/1.02 (West 2018)) defines a \"public body\" as:\n• [A]ll legislative;·executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureat:ts, committees or commissions of this State, and any·\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\n• in part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nAn \"advisory body,\" for purposes of OMA, is an entity that has defined responsibilities and is a\nformal part of the structure of the public body that it advises. Board of Regents of Regency\nUniversity System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist. 1997). In contrast, OMA\n\"is not intended to open to the public the deliberations of merely informal advisory committees\nwho discuss internal\" affairs of a public body. Pope v. Parkinson, 48 Ill. App. 3d 797, 800 (4th\nDist. 1977). Factors to consider in determining whether a group constitutes an advisory body\nunder OMA include:\nwho appoints the members of the entity, the formality of their\nappointment; and whether they are paid for their tenure; the entity's\nassigned duties, including duties reflected in the entity's bylaws or\nauthorizing statute; whether its role is solely advisory or whether it\nalso has a deliberative or investigative function; whether the entity·\n•. is subject to government control or otherwise accountable to any\n. public body; whether the group has a budget; its place within the\n• • larger organizati9n or institution of which it is a part; and the\nimpact of decisions or recommendations that the group makes.\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856,\n. 865 (1st Dist. 2003).\n\nMs. Alexis R. Long\nJuly 31, 2020.\nPage-5\n\nIn Stukel, the plaintiff alleged that a group of presidents and chancellors of public\nuniversities (Co'uncil), which made recommendations to the Illinois Board of Higher Education\n(IBHE), viola�ed OMA by meeting privately before IBHE meetings to discuss issues related to\nfunding for public education. 8_tukel, 344 Ill. App. 3d at 857-58. The court held that the Council\nwas not an advisory body of IBHE in part because it was not incorporated into the formal\norganizational structure of IBHE, a factor that the court identified as a \"primary consideration in\ndetermining whether an organization is a public body under the Meetings Act.\" Stukel, 344 Ill.\nApp. 3d at 865: The court explained that \"the Council was formed by the presidents and\nchancellors of the various state universities to express its views to the IBHE. Granted, its role is\nadvisory but that role is one that the Council [and not IBHE] created.\" Stukel, 344 Ill. App. 3d at\n866. The court also noted that the plaintiffs complaint did not allege that the group had a\n\"deliberative or investigative function in relation to the IBHE or thatthe Council is subject to\ngovernment control. It does not appear that the Council is otherwise accountable to any public\nbody. It does not appear to have a budget[.]\" Stukel, 344 Ill. App. 3d at 866. Further, \"no\nmember of th:e' Council is a member of the IBHE.\" Stukel, 344 Ill. App. 3d at 866; see also Pope\nv. Parkinson,' 48 Ill. App. 3d 797, 800 (4th Dist. 1997) (committee of four faculty members.and\nfour students that advised director of sports stadium and chancellor was not an advisory body\nbecause OMA \"is not intended to open to the public the deliberations of merely informal\nadvisory committees who discuss internal University affairs.\"); People ex rel. Cooper v. Carlson,\n28 Ill. App. 3d 569, 572 (2d Dist 1975) (OMA does not apply to voluntary \"technical staff'\nmeetings of \"department heads.or employees who seek to improve with dispatch their\nperformance pr function of assisting in the conduct of the people's business.\").\n• ·conversely, in Reynard, the appellate court concluded that the Athletic Council.of\nIllinois State University (ISU) was an advisory body subject to FOIA. Reynard, 292 Ill. App. 3d\nat 979. The Athletic Council serves \"as an advisory body to the athletic director, with primary\nadvisory responsibility to the president. It gives advice on the development of budgets and\npolicies governing the intercollegiate athletic program.\" Reynard, 292 Ill. App. 3d at 971. The\nathletic director \"is free to reject its advice and there have been occasions when he has done so.\nThe Council deals only with internal ISU matters, it has no budget, and none of its members are\npaid.\" Reynard, 292 Ill. App. 3_d at 972. In concluding that the Athletic.Council was an advisory\nbody subject to the requirements of OMA, however, the court emphasized that the Council is\n\"part of the formal organizational structure of ISU and its duties and responsibilities are set forth\nin the supplement [to the bylaws of the ISU Senate]. The broad scope of the Council's\nresponsibilities as set forth in the supplemerit contrasts sharply with the limited duties or the\n\nDepartment; ·the decree was approved by a Federal judge on January 31; 2019.5 Part IVofthe\nConsent Decree addresses reforms to improve behavioral and mental health crisis interventions.6\nRelevant to Jhis matter, sectionI, paragraph 128, of that part provides that \"[t]he City will have a\ncri,sis intervention response advisory committee (\"Advisory Committee\") with subject matter\nexpertise and experience that will assist in identifying problems and developing solutions and\ninterventions' designed to improve outcomes for individuals in crisis who require City services. \" 7\nParagraph 129 further provides: \"The Advisory Committee, at a minimum, will meet quarterly to\nreview and recommend improv�ments to the City's overall response to individuals in crisis, with\nconsideration to areas·.such as coordinated crisis response; data collection and evaluation;\ncommunity engagement and awareness; service outreach and prevention; and the CIT [Crisis\nIntervention Team] Program.\" 8\nclaim that the\nIn: its response to this office, the Department dispute\nAdvisory Cormnittee and its four subcommittees are \"public bodies\" su �ect to the requirements\nof OMA. The ])epartment confirmed that the Mayor's Office chairs the Advisory Committee,\nwhich is comprised \"of volunteer organizations and individuals, with expertise and experience in\ncrisis intervention, who meetquarterly at a minimum.\"9 According to the Department, \"[t]he\nAdvisory Committee independently chose to form subcommittees to efficiently achieve its\nobjective. 1110 The Department argued that the Advisory Committee did not meet the\ncharacteristics of a public body.\nChicago Police Consent Decree, Consent Decree Fact Sheet (last visited June 9, 2019),\nhttp://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/Consent-Decree-Fact-Sheet-Jan-31-2019.pdf.\n5\n\n6\nState ofIllinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis Intervention\n(filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT­\nDECREE-SIGNED-BY-JUDGE-DOW.pdf.\n\nState of Illinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIntervention, 1. Advisory Committee, 128 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n7\n\n8\nState �fIllinois v. City of Chicago, Case No. I 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, 1. Advisory Committee, 129 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at I.\n9\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law,.to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\n\nTo determine whether the Advisory Committee is a \"public body\" under OMA,\nthis office will evaluate the Department an� arguments under the Stukel factors..\n(1)\nWho appoints the members of the entity, the formality\nof their appointment, and whether they are paid for their\ntenure\n\nThe Department asserted that members of the Advisory Committee are not\nappointed but instead invited to participate and represent \"a collection of City and local\ngovernment agencies and departments, academic researchers, community organizations,\nadvocacy groups, and individuals.\"11 The Mayor's Office invites participants in accordance with\nthe Consent Decree, which provides:\n. '132. The Advisory Committee will be chaired by the\nMayor's Office. The Mayor's Office will invite individuals who\nhave personally experienced a behavioral or mental health crisis,\npeople with experience working with individuals in crisis, and\nexperts with knowledge in law enforcement responses to\nindividuals in crisis. At a minimum, the Mayor's Office will invite\nindividuals from the following groups: first responders; the CIT\nCoordinator; OE.MC; county and city hospitals, health care\nprovid�rs, and mental health professionals; the Cook County\n• State's Attorney's Office; the Cook County Public Defender's\nOffice; at least one academic research entity; community\nbehavioral and mental health professionals; advocacy groups for\nconsumers of behavioral and mental health services; behavioral\nand mental health service providers; homeless service providers;\nsubstance abuse service providers; persons with lived experiences\nof behavioral or mental health crises; and other similar groups.l121\n\n11\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 2.\n\nState ofIllinois v. City of Chicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, '132 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n12\n\nJuly 31, 2020,,\nPage 8\nThe Department cOntended that it did not have a formal appointment or selection process,\nasserting that the invited organizations select their own representatives to participate. The\nDepartment further contended that the Advisory Committee is not accountable to the City, and\nmembers do not face consequences if they do not attend. Additionally, the Department stated\nthat members are not paid for their participation.\n(2)\nThe entity's assigned duties, including duties reflected •\nin the entity's bylaws or authorizing statute\nThe Department stated that the Advisory Committee has neither bylaws nor an\nauthorizing statute. It argued that the Advisory Committee provides only technical expertise on\na single subject matter. In particular, the Department argued that \"the Advisory Committee has a\nvery limited purpose, which is to make recommendations to improve crisis response[,]\" as set\nforth in the Consent Decree. 13 The Consent Decree provides that:\n130. The City will request that the Advisory Committee\n• provide guidance ori. crisis response-related policies, procedures,\n. _and training of City agencies; including CPD and OEMC, and\nassist the City in developing and expanding current strategies for\nresponding to individuals in crisis, including reducing the need for\npolice-involved responses to individuals in crisis and developing\nmunicipal and community resources, such as pre- and post-:arrest\ndiversion resources and alternative response options (like drop-off\ncenters, mobile crisis teams, a central non- emergency crisis line).\nThe City will further request that in providing the guidance\ndetailed above the Advisory Committee will consider specific\nstrategies for responding to children and youth when they\nexperience a behavioral or mental health crisis.l 141\nIn her reply to this offic�iisputed the Department's characterization �f\nthe role of the Advisory Committee as informal �d limited. She emphasized the significance of\nthe Consent Decree, asserting that extensive negotiations, deliberations, and public input went\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,·\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 4.\n13\n\nState ofIllinois v. City of Chicago, Case No. I 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 130 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\n\ninto the development of the Consent Decree. She also argued that \"[t]he Consent Decree has the\nsame effect as a government resolution or statute and can be enforced by the court if the parties\nto the agreement do not comply with the orders.\" 15\n(3)\nWhether the entity's role is solely advisory or whether\nit also has a deliberative or investigative function\n\nThe Department argued that the Advisory Committee is solely advisory, as its\n\"only role is to advise on the single issue of crisis intervention response.\" 16 The Department also\nargued that the Advisory Committee did not have any investigative or deliberative role..\nAccording to the Department, \"[t]he final product of the Advisory Committee meetings will be\nrecommendations the City may. choose to accept or reject.\" 17\ngued that the Advisory Committee's duties and meeting materials\nestablished tliat 1t 1s a e iberative body. She emphasized that the Consent Decree required the\nCity to respoi1d to the Advisory Committee's recommendations and provide reasons for not\nadopting recommendations.\n(4)\nWhether the entity is subject to government control or\notherwise accountable to any public body\n\nThe Department asserted that the Advisory Committee is not subject to control by\na public body. The Department acknowledged that the Mayor's Office chairs the Advisory\nCommittee, but argued that it did not have control over the Committee's work or\nrecommendations, and that most of the members \"are organizations with no connection to the\nCity.\" 18 The Department contended that the Advisory Committee \"does not possess any control\nover any part of the government, nor is it controlled by any public body.\" 19\n15\n\nE-mail fro\n\nAAG Teresa Lim (December 20, 2019).\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 5.\n16\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 5.\n17\n\nLetter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney\n\nontended that the Mayor's Office has significant control over the\nAdvisory Committee:\nhe Mayor manages the [Advisory Committee], chooses [Advisory\nCommittee] member organizations, and published the [Advisory Committee]'s first\nrecommendations in a document that displays the City of Chicago seal on its cover. 1120\n(5)\n\nWhether the group has a budget\n\nThe Department stated that the Committee does not have a budget of its own.\noted that although the Advisory Committee did not have its own budget, the City\na ocate a continued investment of $25 million in its 2020 budget for compliance with the\nConsent Decree.\n(6)\nThe entity's place within the larger organization or\ninstitution of which it is a part\n\n. The Department asserted, in pertinent part: \"[The Committee] is not in itself a\n• government department with any regulatory authority, but rather a group of volunteers. The\nAdvisory Committee, formed through Consent Decree, is merely an ad hoc group created for a\nsingle task; it is not a part of the larger structure of City government.\"21\n(7)\nThe impact of decisions or recommendations that the\ngrou·p makes\n\nThe Department argued that the Advisory Committee's recommendations are non­\nbinding. The Depar�ment contended that while the Consent Decree provided a procedure for\nresponding to the Advisory Committee's recommendations, the City could decline any of those\nrecommendations. Additionally, the Department argued that the Advisory Committee could not\ntake any final actions or make any decisions on behalf of the City.\n\n'. 19 Letter from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa-Lim, Assistant Attorney General, Public Ac.cess Bureau, Office of the Attorney\nGeneral, State of Illinois (November 4, 2019), at 6.\n20\n\nE-mail from Jud-o AAG Teresa Lim (December 20, 2019).\n\n21 Letter.from Alexis R. Long, Legislative Specialist for Regulatory Matters, City of Chicago,\nDepartment of Law, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Off.ice of the Attorney\n\n_ ·._ After reviewing both partiesi arguments in light of the Stukel factors, this office\nconcludes tha:fthe Advisory Committee is a public body subject to t�e requirements of OMA.·\nBlack's Law Dictionary defines· a \"consent decree\" as \"[a] court decree that all parties agree to.\"\nBlack's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS. The Consent Decree is\na legally enforceable agreement.. Therefore, even though the Advisory Committee was not\ncreated pursuant to an authorizing statute, ordinance, or resolution, the City was nevertheless\nlegally bound to create the Advisory Committee according to the terms of the Consent Decree.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 44489, issued February 15, 2018,\n(concluding that an advisory board, formed-pursuant to an intergovernmental agreement,\nconstituted a \"public body\" under OMA where the board exhibited, in part, characteristics of a\npublic body under the Stukel factors).\nAlthough the Advisory Committee does not have bylaws, the Consent Decree\nspecifically sets forth the Advisory Committee's responsibilities, composition, and minimum\nmeeting schedule, which-signal the formality of the Advisory Committee. In contrast to the\nDepartment's claim that the Advisory Committee serves a limited purpose and merely advises on\nthe topic of \"crisis intervention response,\" the Consent Decree gives the Advisory Committee\nbroad advisory duties covering a wide range of issues within that topic. Those issues impact\nmultiple city agencies. In addition to the duties listed above in paragraph 130, the Consent\nDecree also requires that:\n131. Within 365 days of the Effective Date, the City will\nrequest that the Advisory. Committee identify and evaluate in\nwriting any opportunities to develop or enhance crisis response­\nrelated policies, procedures, and training of City agencies,\nincluding CPD, OEMC, and the Chicago Fire Department, and\nincrease municipal and community resources and alternative\nresponse options, including rapid-access clinics, drop-off centers,\nmobile crisis teams, a central non-emergency crisis line, other pre­\nand post-arrest diversion efforts, and strategies targeted at children\nand youth. The City will also request that the Advisory Committee\nidentify and evaluate the steps necessary to develop non-criminal\n\n• !.\n\nidentify challenges and opportunities for improvement, if any, and\ninake recommendations. (221\n. Further, ',1/hile the Advisory Committee does not have investigative powers, it is\nrequired, pursuant to paragraph 131, to exercise deliberative functions to \"identify and evaluate\"\nspecific opportunities and to develop recommendations on a range of topics. In addition, the\nAdvisory Committee's input is requested throughout the Consent Decree's provisions, which also\nrequire deliberative powers. For instance, the Consent Decree provides that: (1) \"[t]he CIT\nProgram will seek input from the Advisory Committee in the development of the refresher •\ntraining\"; 23 (�) \"OEMC will consider the response to, identification of, and dispatch of calls for\nservice involving individuals in crisis by OEMC tele-communicators, * * * and any feedback\nand recommendations from the Advisory Committee\" in developing a Crisis Intervention Plan; 24\nand (3) \"CPD will seek irtput from community stakeholders, including the Advisory Committee,\nfor recommendation.s to identify appropriate and respectful terminology\" to communicate about •\nincidents involving individuals in crisis. 25\n. Regarding governmental control, the Mayor's Office appears to play a\nconsiderable'role'as the chair in facilitating meetings. Notably, the Consent Decree gave the\nMayor's Office authority to invite individuals to join the Advisory Committee. Representatives\nfrom other City departments also participated as committee members, suggesting that the City •\nhad some influence over the development of the Advisory Committee's recommendations.\nA_lthough the Advisory Committee does not have a budget of its own or provide\ncompensation for its members, this office has previously concluded that the absence of direct\npublic funding for an entity is not dispositive for purposes of determining whether the entity\nconstitutes a public body under OMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\nState ofIllinois v. City ofChicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 131 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n22\n\nState of Illinois v. City ofChicago, Case No. 17-cv-6260, Consent Decree, IV. Crisis\nIritervention, C. Certified CIT Officer. Designation, 99 (filed January 31, 2019),\nhttp://chicagopoIiceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED�BY­\nJUDGE-DOW. pdf.\n23\n\nState ofIllinois v. City ofChicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, G. Crisis Intervention Plan, 122 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n24\n\n25 Stat; ofIllinois v. City a/Chicago, Case No. 17-cv-6260, Consent Decree, IV� Crisis\nIntervention, J. Crisis Intervention Policies, 135 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\n\nT\n\n..\n\n•\n\n:.\n\n44489, issued February 15, 2018; Ill. Att'y Gen. PAC Req: Rev. Ltr. 50176, issued December 5,\n2018.\n• •\n\n• • ·Finally, even though the Advi o Committee's recommendations are nonbinding, they have a: meaningful impact As ll\nemphasized, Paragraph 131 of the Consent\nDecr�·e requires the City to respond to each o t e visory Committee's recommendations:\nThe City will address the feedback and recommendations\nidentified by the.Advisory Committee, including identifying\nrecommendations that it will adopt, arid the plan for\nimplem'entation, in the Crisis Intervention Plan. The City will\nrespond to each of the recommendations made by the Advisory\n·committee. The response will include a description of the\nactions that CPD has taken or plans to take with respect to the\nissues raised in \"the recommendations. If the City declines to\nimplement a recommendation, it will explain the reason(s) for\ndeclining.(261 (Emphasis added.)\n\nThe Department minimizes the import of the Advisory Committee's recommendations by\nasserting that the City can decline them, but it failed to acknowledge th� significance of the\nConsent Decree's prov1sion that the City must justify any decision to decline one of the\nrecommendations. The ·requirements described in Paragraph 131 indicate that the Advisory\nCommittee is more than ·an informal advisor and that the City cannot treat the Advisory.\nCommittee's recommendations as mere suggestions, but must carefully consider them. Further,\nrecommend'!,tions by an \"advis()ry\" body are inherently non-binding.\n\nAccordingly, this office concludes that the Advisory Committee is a \"public\nbody\" subject the requirements of OMA. This office requests that the Advisory Committee\nconduct all future meetings in accordance with the provisions of OMA. Among other things, the\nAdvisory Committee should provide advance notice of its meetings (5 ILCS 120/2.02 (West\n2018)), keep written minutes (5-ILCS 120/2.06(a) (West 2018)), and provide members of the\npublic with an opportunity to address Advisory Committee members (5 ILCS 120/2.06(g) (West\n2018)). This office also requests that Advisory Committee members complete the OMA\nelectronic training curriculum developed and administered by the Public Access Counselor. See\n5 ILCS 120/1.05 (West 2018).\nState_ of Illinois v. City of Chicago, Case No. l 7-cv-6260, Consent Decree, IV. Crisis\nIntervention, I. Advisory Committee, 131 (filed January 31, 2019), http://chicagopoliceconsentdecree.org/wp­\ncontent/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.\n26\n\n,'\n\n-.:...... July 31, 2020\n• Page 1.4\n\n• !\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a bi�ding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n60134 o vio mun"}
{"id":1321,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-11-18","case_number":null,"request_numbers":["60394"],"title":"Village of Matteson did not violate OMA by holding a meeting on a legal holiday","filename":"60394, issued November 18, 2020.pdf","rel_path":null,"word_count":1257,"summary":"A requester alleged that the Village of Matteson Board of Trustees violated the Open Meetings Act by holding a public hearing on a legal holiday. The PAC determined that the Board did not violate the Act by scheduling the meeting on that date.","plain_summary":"A citizen complained that the Village of Matteson held a public meeting on a legal holiday, arguing this was improper. The Attorney General's office reviewed the case and concluded that the Village acted within its legal rights to hold the meeting on that day. The matter is now closed with no further action required.","holding":"The Village of Matteson did not violate the Open Meetings Act by holding a public hearing on a legal holiday that coincided with its regular meeting schedule.","legal_question":"Whether a public body violates the Open Meetings Act by conducting a public hearing on a legal holiday that falls on a regularly scheduled meeting day.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Matteson Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The scheduling of a public hearing on a legal holiday that coincided with the Board's regular workshop meeting day.","ocr_status":"reocr_tesseract","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/holidays/60394, issued November 18, 2020.pdf","sha256":"144042c832ecfa57867e3454dc3bb64b149cbfef4feacc0bc9a0259623c55181","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting schedule","legal holiday","public hearing","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"I\nI\ni\n\nI\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nI\n\nI\n\n.\n\n.\n\nI\n\nKWAME RAOUL\n\nATTORNE,Y GENERAL :\n\nI.\nI\n\nNovember 18, 2020\n\nI\n\nVia electronic maih\n\nVid il�2tron'ic mail\\\nThe'Honotable Sheila Y. Chalmers-Currin\nVillage Preside.nt .j.\nVillage, of Mcitteso#\n4900. Village Cdrtm�ons\nMatteso'n, Illihois 69443\n�Chalm.ers-Currin@villageofmatteson.org\n• -t.··\n\n• _',.. :.\n\n.\n\nr,\n\n'.\n\n•.\n\n·:\n\nI\n\n... . . . , .\n\n.\n\nRE.: iOMA Request for Review- 2019 PAC 60394 •\n' . - ' ,....• ' i\nOefil.-'and:·Rresident Chalmers-Currin:\n\ni:\n\n•\n\n\\':c\n\n•\n\n,I,.\n\n.,_ ...\n\n_:.,, • .•\n\n• •\n\n•\n\n.\n\n,.-., 1_:;.\n\n•\n\nI\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2018)). For the reasons that follow, the Public Access Bureau\nconcludesthaHhe Village of Matteson (Village)Board of Trustees (Board) did not violate OMA\nby holding a pu.blic hearing• on a legal holiday that fell on the regular meeting day of its Board\nI\nworkshops.\nOn dctober 30, 2019, the Public Access Bureau received a Request for Review\na'lleging that the Board improperly held a public hearing on a legal holiday.\nfrom\n-included with his Request for Review an agenda for the public hearing, and also alleged\nthat the Board does �ot regularly hold public hearings on the second Monday of the month. On .\nNovember 14, 2019,,this office sent the Board a copy of the Request for Review and requested\nthat it provide a deta�led written response, together with copies of the meeting notice, agenda,\nminutes (both open �nd closed), and closed session verbatim recording. On May 21, 2020, the\nBoard provided the requested materials. This office forwarded-a copy of the Board's\n1\nresponse; he did not submit a reply.\n1\n\nI\n\ni\n\nI\n\n. .\n\n500 South Secorid Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Rand6lph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South Univer�ity Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\ni\n\n\fThe. Honorable Sheila Y. Chalmers - Currin\nNovember 18, 2020\nPage 2\n\nDETERMINATION\nSection 2. 01\n\nof\n\nOMA ( 5 ILCS 120/ 2. 01 ( West 2018)) provides,\n\nin relevant part:\n\nAll meetings required by this Act to bepublic shall be held\nat specified times and places which are convenient and open to the\n\npublic. No meeting required by this Act to be public shall be held\non a legal holiday unless the regular meeting day falls on that\nholiday.\nOMA does\nand\n\nnot\n\ndefine\n\nBank Holiday\n\nthe\n\nholiday.\" However, section 17( a) of the Promissory Note\n\nAct ( Bank Holiday Act) ( 205 ILCS 630/ 17( a) ( West 2018)) designates\n\nthirteen specific dayssas \"\n\nOctober, which\n\nterm \" legal\n\nlegal holidays in the State\n\nobserves Columbus\n\nIllinois[.]\". The second Monday in\nDay, is listed as a legal holiday. 205 ILCS 630/ 17( a) ( West\nof\n\n2018).\n\nThe Illinois Appellate Court has interpreted section 2. 01 of OMA to mean that\n\nno meeting ( regular; special, rescheduled or reconvened meeting) could be held on a holiday\n\nunless the legal holiday was the same day as the regular meeting day and the regular meeting\nwas not held on that day.\"\nArgo High School Council ofLocal 571 v. Argo Community High\n\nSchool District 217, 163 Ill. App. 3d 578, 580 ( 1st Dist. 1987).\n\nThe court held that a school\n\nboard did not violate OMA by holding a special meeting on Veterans' Day because it fell on the\nsame date as the date;of the board's regular meeting, which had been rescheduled. Argo High\nSchool, 163 I11. App. 3d at 581.\n\nIn affirming the trial court' s ruling, the court approvingly quoted\nthe following excerpt from that ruling:\nT] he',legislature could have, if it wanted to preclude a special or\n\nother Meeting from being held on a legal holiday, used language\nspecifically indicating that intent. More particularly, the court\nstated as follows:\n\nA] special meeting cannot be held on a legal holiday\n\nunless That legal holiday is a day where a regular meeting day\nordinarily occurs, even though the regular meeting may not be held\non that day.\nNow, why do I say that? I say that because the legislature would\nnot have had to use the word day. They could have simply said\n\nunless the regular meeting falls on that holiday, but they didn't.\nThey inserted\n\nthe word\n\nday[.]\n\n\fThe Honorable Sheila Y. Chalmers - Currin\nNovember\n\n18, 2026\n\nPage 3\n\nTo me that contemplates that some other meeting could\nbe held on a legal holiday pursuant to notice if the' regular\nmeeting day falls on that holiday. It does not require the\nregular\nmeeting also to be held on that holiday. l' l ( Emphasis\nadded.)\n\nThe Board confirmed that the October 14, 2019, public hearing, which is\ninarguably required to be public under OMA, occurred on the regular meeting day of its Board\nworkshops. With its answer, the Board included its 2019 public notice of regular meetings, 2\nwhich\n\nreflects\n\nBoard workshops are regularly held on the second Monday of each month.\n\nthat\n\nThe Board also contended that the public hearing complied both with the plain language of\nsection\n2. 01 and also with the Argo court as discussed above. Specifically, the Board argued that\ni] f the legislature intended that a regular scheduled meeting on a holiday must not be held in\norder for a special\nmeeting held on that holiday to comply with [ OMA], it would have specified\nsuch\n\na narrow\n\n3\n\nmeaning. \"\n\nUnder the plain language of section 2. 01, the only exception to the prohibition\nagainst holding meetings on legal holidays is when the public body' s regular meeting day falls on\nthe holiday. In this instance, the Board regularly holds its Board workshops on the second\nMonday of each month, which is also the date it held the public hearing in question. This office\n\nhas not received any information disputing that the Board' s monthly workshops are regular\nmeetings of the Board. Further, the Board has demonstrated that it provides annual notice of its\n\nBoard workshops as regular meetings, as required by section 2. 02( a) of OMA.\n\nhas not\n\nalleged that the Board failed to provide proper notice for its October 14, 2019, public hearing or\nthat any member of the public was prohibited from attending that meeting. For those reasons,\nthis office concludes that the Board did not violate section 2. 01 of OMA by holding a public\nhearing on a legal holiday that fell on the regular meeting day of its Board workshops.\n\nArgo High School, 163 Ill. App. 3d at 580.\n2Section 2. 02( a) of OMA ( 5 ILCS\n\n12012. 02( a) ( West 2018))\n\nprovides that \"[\n\ne] very public body\n\nshall give public notice of the schedule of regular meetings at the beginning of each calendar or fiscal year and\nshall\n\nstate\n\nthe\n\nregular\n\ndates,, times, and places of such meetings.\" ( Emphasis added).\n\n3Letter from Lauren M. DaValle, Attorney at Law, to Christopher R. Boggs, Assistant Attorney\nGeneral,\n\nPublic Access\n\nBureau,\n\nOffice\n\nof the\n\nAttorney\n\nGeneral,\n\nState\n\nof Illinois (\n\nMay 21, 2020), at 5.\n\n\fThe Honorable Sheila Y. Chalmers -Currin\nNovember\n\n18, 2020\n\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at ( 217) 785- 7438.\nVery truly yours,\n\nRI '\n\nHER R. BOGGS\n\nSupervising Attorney\nPublic Access Bureau\n\n60394 o 201 date proper mun\n\ncc:\n\nVia electronic mail\nMs. Lauren\n\nM. DaValle\n\nAssociate Attorney\nOdelson, Sterk, Murphey, Frazier & McGrath\n3318 West 95th Street\nEvergreen Park, Illinois 60805\nldavalle@osmfm.\n\ncom\n\n\f","full_text_pre_reocr":"I\nI\ni\n\nI\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nI\n\nI\n\n.\n\n.\n\nI\n\nKWAME RAOUL\n\nATTORNE,Y GENERAL:\n\nI.\nI\n\nNovember 18, 2020\n\nI\n\nVia electronic maih\n\nVid il�2tron'ic mail\\\nThe'Honotable Sheila Y. Chalmers-Currin\nVillage Preside.nt.j.\nVillage, of Mcitteso#\n4900. Village Cdrtm�ons\nMatteso'n, Illihois 69443\n�Chalm.ers-Currin@villageofmatteson.org\n• -t.··\n\n• _',..:.\n\n.\n\nr,\n\n'.\n\n•.\n\n·:\n\nI\n\n......,.\n\n.\n\nRE.: iOMA Request for Review- 2019 PAC 60394 •\n'. - ',....• ' i\nOefil.-'and:·Rresident Chalmers-Currin:\n\ni:\n\n•\n\n\\':c\n\n•\n\n,I,.\n\n.,_...\n\n_:.,, •.•\n\n• •\n\n•\n\n.\n\n,.-., 1_:;.\n\n•\n\nI\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2018)). For the reasons that follow, the Public Access Bureau\nconcludesthaHhe Village of Matteson (Village)Board of Trustees (Board) did not violate OMA\nby holding a pu.blic hearing• on a legal holiday that fell on the regular meeting day of its Board\nI\nworkshops.\nOn dctober 30, 2019, the Public Access Bureau received a Request for Review\na'lleging that the Board improperly held a public hearing on a legal holiday.\nfrom\n-included with his Request for Review an agenda for the public hearing, and also alleged\nthat the Board does �ot regularly hold public hearings on the second Monday of the month. On.\nNovember 14, 2019,,this office sent the Board a copy of the Request for Review and requested\nthat it provide a deta�led written response, together with copies of the meeting notice, agenda,\nminutes (both open �nd closed), and closed session verbatim recording. On May 21, 2020, the\nBoard provided the requested materials. This office forwarded-a copy of the Board's\n1\nresponse; he did not submit a reply.\n1\n\nI\n\ni\n\nI\n\n..\n\n500 South Secorid Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Rand6lph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South Univer�ity Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\nDETERMINATION\nSection 2. 01\n\nof\n\nOMA (5 ILCS 120/ 2. 01 (West 2018)) provides,\n\nin relevant part:\n\nAll meetings required by this Act to bepublic shall be held\nat specified times and places which are convenient and open to the\n\npublic. No meeting required by this Act to be public shall be held\non a legal holiday unless the regular meeting day falls on that\nholiday.\nOMA does\nand\n\nnot\n\ndefine\n\nBank Holiday\n\nthe\n\nholiday.\" However, section 17(a) of the Promissory Note\n\nAct (Bank Holiday Act) (205 ILCS 630/ 17(a) (West 2018)) designates\n\nthirteen specific dayssas \"\n\nOctober, which\n\nterm \" legal\n\nlegal holidays in the State\n\nobserves Columbus\n\nIllinois[.]\". The second Monday in\nDay, is listed as a legal holiday. 205 ILCS 630/ 17(a) (West\nof\n\n2018).\n\nThe Illinois Appellate Court has interpreted section 2. 01 of OMA to mean that\n\nno meeting (regular; special, rescheduled or reconvened meeting) could be held on a holiday\n\nunless the legal holiday was the same day as the regular meeting day and the regular meeting\nwas not held on that day.\"\nArgo High School Council ofLocal 571 v. Argo Community High\n\nSchool District 217, 163 Ill. App. 3d 578, 580 (1st Dist. 1987).\n\nThe court held that a school\n\nboard did not violate OMA by holding a special meeting on Veterans' Day because it fell on the\nsame date as the date;of the board's regular meeting, which had been rescheduled. Argo High\nSchool, 163 I11. App. 3d at 581.\n\nIn affirming the trial court's ruling, the court approvingly quoted\nthe following excerpt from that ruling:\nT] he',legislature could have, if it wanted to preclude a special or\n\nother Meeting from being held on a legal holiday, used language\nspecifically indicating that intent. More particularly, the court\nstated as follows:\n\nA] special meeting cannot be held on a legal holiday\n\nunless That legal holiday is a day where a regular meeting day\nordinarily occurs, even though the regular meeting may not be held\non that day.\nNow, why do I say that? I say that because the legislature would\n\nTo me that contemplates that some other meeting could\nbe held on a legal holiday pursuant to notice if the' regular\nmeeting day falls on that holiday. It does not require the\nregular\nmeeting also to be held on that holiday. l' l (Emphasis\nadded.)\n\nThe Board confirmed that the October 14, 2019, public hearing, which is\ninarguably required to be public under OMA, occurred on the regular meeting day of its Board\nworkshops. With its answer, the Board included its 2019 public notice of regular meetings, 2\nwhich\n\nreflects\n\nBoard workshops are regularly held on the second Monday of each month.\n\nthat\n\nThe Board also contended that the public hearing complied both with the plain language of\nsection\n2. 01 and also with the Argo court as discussed above. Specifically, the Board argued that\ni] f the legislature intended that a regular scheduled meeting on a holiday must not be held in\norder for a special\nmeeting held on that holiday to comply with [ OMA], it would have specified\nsuch\n\na narrow\n\n3\n\nmeaning. \"\n\nUnder the plain language of section 2. 01, the only exception to the prohibition\nagainst holding meetings on legal holidays is when the public body's regular meeting day falls on\nthe holiday. In this instance, the Board regularly holds its Board workshops on the second\nMonday of each month, which is also the date it held the public hearing in question. This office\n\nhas not received any information disputing that the Board's monthly workshops are regular\nmeetings of the Board. Further, the Board has demonstrated that it provides annual notice of its\n\nBoard workshops as regular meetings, as required by section 2. 02(a) of OMA.\n\nhas not\n\nalleged that the Board failed to provide proper notice for its October 14, 2019, public hearing or\nthat any member of the public was prohibited from attending that meeting. For those reasons,\nthis office concludes that the Board did not violate section 2. 01 of OMA by holding a public\nhearing on a legal holiday that fell on the regular meeting day of its Board workshops.\n\nArgo High School, 163 Ill. App. 3d at 580.\n2 Section 2. 02(a) of OMA (5 ILCS\n\n12012. 02(a) (West 2018))\n\nprovides that \"[\n\ne] very public body\n\nshall give public notice of the schedule of regular meetings at the beginning of each calendar or fiscal year and\nshall\n\nstate\n\nthe\n\nregular\n\ndates,, times, and places of such meetings.\" (Emphasis added).\n\n3 Letter from Lauren M. DaValle, Attorney at Law, to Christopher R. Boggs, Assistant Attorney\nGeneral,\n\nPublic Access\n\nBureau,\n\nOffice\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at (217) 785- 7438.\nVery truly yours,\n\nRI '\n\nHER R. BOGGS\n\nSupervising Attorney\nPublic Access Bureau\n\n60394 o 201 date proper mun\n\ncc:\n\nVia electronic mail\nMs. Lauren\n\nM. DaValle\n\nAssociate Attorney\nOdelson, Sterk, Murphey, Frazier & McGrath\n3318 West 95th Street\nEvergreen Park, Illinois 60805\nldavalle@osmfm.\n\ncom","plain_summary_pre_resummarize":null,"card_headline":"A public hearing scheduled on a legal holiday","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60394/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL,\nATTORNEY GENERAL |\n\nNovember 18, 2020\n\nVia electronic mail.\n\nVia electronic mail|\n\nThe Honorable Sheila Y. Chalmers-Currin\nVillage President : 7\n\nVillage of Matteson\n\n4900. Village Cornmons\n\nMattéson, Illinois 60443.\n\nSChalmers- -Cutrin@willageofmatteson. org\n\n“2°” RE. OMA Request for Review — 2019 PAC 60394\n\nDear [IED and President Chalmers-Currin:\n\n_ This determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons that follow, the Public Access Bureau\nconcludes that:the Village of Matteson (Village) Board of Trustees (Board) did not violate OMA\nby holding a public hearing on a legal holiday that fell on the regular meeting day of i its Board\nworkshops.\n\nOn October 30, 2019, the Public Access Bureau received a Request for Review\nfrom iii alleging that the Board improperly held a public hearing on a legal holiday.\nincluded with his Request for Review an agenda for the public hearing, and also alleged\nthat the Board does not regularly hold public hearings on the second Monday of the month. On |\nNovember 14, 2019, this office sent the Board a copy of the Request for Review and requested\nthat it provide a detailed written response, together with copies of the meeting notice, agenda,\nminutes (both open and closed), and closed session verbatim recording. On May 21, 2020, the\nBoard provided the requested materials. This office forwarded [Ea copy of the Board's\nresponse; he did not submit a reply.\n\n500 South Secorid Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n\n601 South University Ave., Carbondale, Illinois 62901 « (618) 529-6400 * TTY: (877) 675-9339 Fax: (618) 529-6416\n\nThe Honorable Sheila Y, Chalmers- Currin\n\nNovember 18, 2020\n\nPage 2\n\nDETERMINATION\n\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2018)) provides, in relevant part:\n\n' All meetings required by this Act to be. public shall be held '\n\n\" at specified times and places which are convenient and open to the\n\npublic. No meeting required by this Act to be public shall be held .\n\nona legal holiday unless the regular meeting day falls on that\nholiday.\n\nOMA does not define the term \"legal holiday.\" However, section 17(a) of the Promissory Note\nand Bank Holiday Act (Bank Holiday Act) (205 ILCS 630/17(a) (West 2018)) designates\nthirteen specific days as \"legal holidays in the State of Illinois[.]\" The second Monday in\nOctober, which. observes Columbus Day, is listed as a legal holiday. 205 ILCS 630/ 17(a) (West ,\n\n2018).\n\nThe Illinois Appellate Court has interpreted section 2:01 of OMA to mean that\n\n\"no meeting (regular, special, rescheduled or reconvened meeting) could be held on a holiday\nunless the legal holiday was the same day as the regular meeting day and the regular meeting\nwas not held on that day.\" Argo High School Council of Local 571 v. Argo Community High\nSchool District. 217, 163 Ill. App. 3d 578, 580 (ist Dist. 1987). The court held that a schoo!\nboard did not violate OMA by holding a special meeting on Veterans’ Day because it fell on the\nsame date as the date'of the board's regular meeting, which had been rescheduled. Argo High\nSchool, 163 Ill. App. 3d at 581. In affirming the trial court's ruling, the court approvingly quoted\nthe following excerpt;from that ruling:\n\n\"[T]he'legislature could have, if.it wanted to preclude a special or\nother meeting from being held on a legal holiday, used language\nspecifically indicating that intent. More particularly, the court\nstated as follows:\n\nel [A ] special meeting cannot be held on a legal holiday\nunless that legal holiday is a day where a regular meeting day\n\nordinarily occurs, even though the regular meeting may not be held\non that day.\n\n“Now, why do I say that? I say that because the legislature would\n_ hot have had to use the word day. They could have simply said\n\nunless the regular meeting falls on that holiday, but they didn't.\nThey inserted the word day[.]\n\n|\n'\n\n|\n|\n|\n|\n|\n\nThe Honorable Sheila Y. Chalmers-Currin\n\nNovember 18, 2020\n\nPage 3\n\n|\n|\n* * * To me that contemplates that some other meeting could\nbé held on a legal holiday pursuant to notice if the regular\n‘meeting day falls on that holiday. It does not require the |\nregular meeting also to be held on that holiday. (1 (Emphasis\nne ) ,\n\nThe Board confirmed that the October 14, 2019, public hearing, which is\ninarguably required to be public under OMA, occurred on the regular meeting day of its Board\nworkshops. With its answer, the Board included its 2019 public notice of regular meetings,”\nwhich reflects that Board workshops are regularly held on the second Monday of each month.\nThe Board also contended that the public hearing complied both with the plain language of ,\nsection 2.01 and also with the Argo court as discussed above. Specifically, the Board argued that\n\n\"{i]f the legislature intended that a regular scheduled meeting on a holiday must not be held in\norder for a special meeting held on that holiday to comply with [OMA], it would have specified\n\nsuch a narrow meaning.\"3.\n\nUnder the plain language of section 2.01, the only exception to the prohibition\nagainst holding meetings on legal holidays is when the public body's regular meeting day falls on\nthe holiday. In this instance, the Board regularly holds its Board workshops on the second\nMonday of each month, which i is also the date it held the public hearing in question. This office\nhas not received any information disputing that the Board's monthly workshops are regular .\nmeetings of the Board. Further, the Board has demonstrated that it provides annual notice of its .\nBoard workshops as regular meetings, as required by section 2.02(a) of OMA. | has not\nalleged that the Board failed to provide proper notice for its October 14, 2019, public hearing or\nthat any member of the public was prohibited from attending that meeting. For those reasons,\nthis office concludes that the Board did not violate section 2.01 of OMA by holding a public\nhearing on a legal holiday that fell on the regular meeting day of its Board workshops.\n\n‘Argo High School, 163 Ill. App. 3d at 580.\n\n*Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2018)) provides that \"[e]very public body\nshall give public notice of the schedule of regular meetings at the beginning of each calendar or fiscal year and\nshall state the regular dates, times, and places of such meetings.\" (Emphasis added).\n\n3Letter from Lauren M. DaValle, Attorney at Law, to Christopher R. Boggs, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General, State of Illinois (May 21, 2020), at 5.\n\n|\n|\n|\n\\\n‘\n|\n|\n|\n,\n|\n|\n\nThe Honorable Sheila Y, Chalmers-Currin\nNovember 18, 2020 .\nPage 4 an\n\n|\nl\n|\n~ ‘The Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at (217) 785-7438.\n\nVery truly yours,\n\nRI HER R. BOGGS\nSupervising Attorney\nPublic Access Bureau\n\n60394 o 201 date proper mun\n\ncc: Via electronic mail\nMs. Lauren M. DaValle\nAssociate Attorney _\nOdelson, Sterk, Murphey, Frazier & McGrath\n3318 West 95th Street\n’ Evergreen Park, Illinois 60805\nIdavalle@osmfm.com"}
{"id":1322,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-02-21","case_number":null,"request_numbers":["60547"],"title":"City of Colchester City Council did not violate OMA on agenda, public comment","filename":"60547, issued February 21, 2020.pdf","rel_path":null,"word_count":3220,"summary":"A requester alleged that the City of Colchester City Council violated the Open Meetings Act regarding agenda compliance, public comment, post-meeting statements, and member training requirements. The PAC determined that the Council did not violate OMA regarding the agenda and that while training compliance was late, no statutory penalty exists.","plain_summary":"A citizen alleged that a city council violated OMA by discussing matters not on a special-meeting agenda, mishandling public comment, engaging in post-adjournment discussions, and failing to complete member training on time. The PAC found no violation in the agenda, public-comment, or post-adjournment allegations, but determined that members who had not completed required OMA training within the statutory period violated OMA. Because the Act provides no penalty for late training, the Council was cautioned to comply prospectively.","holding":"The Public Access Bureau concluded that the City of Colchester City Council did not violate the Open Meetings Act in connection with its October 23, 2019, special meeting.","legal_question":"Whether the City of Colchester City Council violated the Open Meetings Act regarding agenda requirements, public comment procedures, and the statutory deadline for member training.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/1.05"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Colchester City Council","requesting_party":"Mr. [Name redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint concerned the conduct of a special city council meeting, including agenda adherence and member training compliance.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/60547, issued February 21, 2020.pdf","sha256":"db1d5d098bad1fe4598825c49a318ff54928e9c193d4b5bb4bda60cea391515d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","meeting agenda","public comment","training requirements"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nFebruary 21, 2020\n\nVia electronic mail\n\nMs. Mariah M. Wallace\nCapps, Ancelet, Icenogle &\n\nWallace\n\n55 South Adams Street\nP. O. Box 250\n\nCarthage, Illinois 62321\nRE:\n\nDear\n\nOMA Request for Review —2019 PAC 60547\n\nand Ms. Wallace:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Colchester City Council ( Council) did not violate OMA in\nconnection with its October 23, 2019, special meeting.\nBACKGROUND\n\nIn his Request for Review,\nthe\n\nalleged four violations of OMA by\n\nCouncilconcerning: ( 1) discussion of topics at the October 23, 2019, special meeting that\n\nwere\n\nnot\n\non, the agenda; (\n\n2) public\n\ncomment at the\n\nOctober 23, 2019,\n\nspecial meeting; (\n\n3)\n\nstatements made to the media and other Council members by Acting Mayor Frances Welchafter\nthe adjournment of the October 23, 2019, special meeting; and ( 4) certain Council members'\n\ncompliance with OMA' s online training requirements.\nOn November 20, 2019, this office sent a copy of the Request for Review to the\nCouncil and requested that it provide a written response to the allegations that the Council\n\ndiscussed topics that were not included on the October 23, 2019, special meeting agenda. This\n\n500 South\n100\n601\n\nSecond\n\nStreet,\n\nSpringfield,\n\nIllinois\n\n62701 • (\n\nWest Randolph Street, Chicago, Illinois 60601 • (\n\nSouth\n\nUniversity\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\nAve.. Carbondale. Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 2\n\noffice asked the Council to provide copies of the October 23, 2019, special meeting agenda and\nall minutes from that meeting, whether from open or closed sessions. On December 2, 2019, this\noffice received the Council' s response. On December 5, 2019, this office forwarded the\nCouncil' s written response to\non December 10, 2019, he replied.\nDETERMINATION\n\nSpecial Meeting Agenda\n\nasserted that during the October 23, 2019, special meeting, the Council\ndiscussed two topics that were\n\nnot on the\n\nOctober 23, 2019,\n\n1) Acting\nMayor Welch' s resignation as First Ward Alderman; and ( 2) snow removal. This office\nconstrues\ncomplaint as alleging violations of section 2. 02( a) of OMA ( 5 ILCS\nspecial\n\nmeeting\n\nagenda: (\n\nI\n\n120/ 2. 02( a) ( West 2018)).\n\nSection 2. 02( a) provides that \"[\n\np] ublic notice of any special meeting\n\nshall be given at least 48 hours before such meeting, which notice shall also include the\nagenda for the special * * *\nmeeting, but the validity of any action taken by the public body\nwhich is germane to a subject on the agenda shall not be affected by other errors or omissions in\nthe agenda.\"\n\nSection 2. 02( a) of OMA further provides that \" the requirement of a regular\n\nmeeting agenda shall not preclude the consideration of items not specifically set forth in the\nEmphasis\n\nAlthough a public body may discuss items not included on the\nagenda during a regular meeting under the express language of section 2. 02( a) of OMA, the\nagenda.\" (\n\nadded.)\n\nGeneral Assembly did not provide similar language concerning the agenda for a special meeting.\n\nSee People\n\nv.\n\nSmith, 2016 IL 119659, ¶ 30, 76 N.E. 3d 1251, 1258 ( 2016) (\"[ W] here the\n\nlegislature includes particular language in one section of a statute but omits it in another section\nof the same statute, courts will presume that the legislature acted intentionally in the exclusion or\ninclusion.\");\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 32604, issued April 9, 2015, at 3 ( public body\n\nviolated OMA by discussing a topic at a special meeting which was not listed on the posted\nagenda).\n\nThis office has also concluded, however, that simple announcements at special\n\nmeetings that are not accompanied by discussions among members of the public body do not rise\nto the level of \"the consideration of items\" under section 2. 02( a) of OMA, and therefore are not\nrequired to be on the special meeting agenda. Ill. Att' y Gen. PAC Req. Rev. Ltr. 58725, issued\nSeptember 12, 2019, at 2, 3 ( concluding that individual public body members' statements on\nupcoming community events and the status of applications for board vacancies did not amount to\n\ndeliberative discussions during a special meeting).\nThe Council contends that Acting Mayor Welch's resignation as Alderman of the\n\nFirst Ward was \" simply an announcement,\" I as \" the decision to resign was an action taken solely\nLetter from Mariah M. Wallace, Capps, Ancelet,\nBureau Chief, Public Access Bureau ( November 27, 2019),\n\nat 2.\n\nIcenogle &\n\nWallace, to Laura S. Harter, Deputy\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 3\n\nby Mayor Welch pursuant to the authority granted to her by\" 2 section 3. 1- 10- 50( d) of the Illinois\nMunicipal Code ( 65 ILCS 5/ 3. 1- 10- 50( d) ( West 2018)).\n\nAccording to section 3. 1- 10- 50( d) of the Municipal Code, an acting mayor' s\n\ndecision to resign his or her original office does not require a vote or discussion by other\nmembers of the public body, but it does require that \" the original office must be filled pursuant\nto the terms\n\nof this\n\nSection.\n\ni3\n\nActing Mayor Welch' s announcement that she was resigning did,\nnot require discussion or action by the Council, but triggered the requirement for the. Council to\n\nfill her vacancy, which it did immediately after her announcement. 4 The agenda for the October\n23, 2019,\n\nspecial meeting\n\nlisted the item \"[ a] pprove appointments of Aldermen to fill vacancies\n\nin the First Ward. i5 Therefore the Council did not engage in discussion or action in violation of\n\nOMA because notice that alderman vacancies would be filled was provided on the agenda.\nIn his Request for Review,\nalso stated that \" Mayor Welch proceeded to\ntalk about snow removal, who would do it, and that there needed to be discussion on guidelines\nfor when the snow\n\nremoval\n\ncrew\n\nis brought\n\ni6 but that there was no mention of snow\n\nout[ ]\n\nremoval on the meeting agenda. In its response to this office, the Council stated that a part time\ncity employee asked the mayor to inform the council that he would fill in for another employee\n\n2Letter from Mariah\n\nM. Wallace, Capps,\n\nAncelet,\n\nIcenogle &\n\nWallace, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau ( November 27, 2019), at 1.\nSection 3. 1- 10- 50( d) of the Municipal\n\nCode provides,\n\nin relevant part,\n\nThe election of an acting mayor or acting president pursuant to subsection ( f) or\ng) does not create a vacancy in the original office of the person on the city\ncouncil or as a trustee, as the case may be, unless the person resigns from the\n\noriginal office following election as acting mayor or acting president. If the\nperson resigns from the original office following election as acting mayor or\nacting president, then the original office must be filled pursuant to the terms of\n\nthis Section and the acting mayor or acting president shall exercise the powers\nof the mayor or president\n\nand shall vote and have veto power in the manner\n\nprovided by law for a mayor or president.\n\n4City of Colchester City Council, Special Meeting, October 23, 2019, Minutes 1.\n\n5City of Colchester City Council, Special Council Meeting, Agenda Item 6, Approve appointments\nof Aldermen\n\nto fill vacancies\n\nin the First Ward ( October 23, 2019).\n\ntetter from\nNovember\n\n11,\n\n2019).\n\nto [ Public Access Bureau, Office of the Attorney General]\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 4\n\nduring his vacation and would also be available for snow removal, thus the topic of snow\n7\nmerely an announcement only\" by Acting Mayor Welch.\n\nremoval was \"\n\nThe nature of Acting Mayor Welch's statement on snow removal appears to have\nbeen an announcement, as opposed to deliberative discussion of the topic. Although the parties\nagree that the mayor stated that the topic of snow removal guidelines\n\nwould need to be addressed\n\nby the Council in the future,\ndid not allege nor did the Council's response indicate that\nanyone other than the mayor talked about snow removal at the special meeting. Accordingly,\n\nthis office concludes that the Council did not discuss snow removal at that meeting in violation\nof OMA.\n\nalso appears to object to the Council' s vote to appoint an individual to\n\nfill the Acting Mayor' s First Ward vacancy. This office construes this contention asalleging a\nviolation\n\n2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West 2018)),\n\nof section\n\nwhich\n\nprovides: \"\n\nAny\n\nagenda required under this' Section shall set forth the general subject matter of any resolution or\nordinance that\n\nthe\n\nspecial\n\nwill\n\nbe the subject of final action\n\nmeeting\n\nstated: \"[\n\nat the\n\nmeeting.\"\n\nAs noted above, the agenda for\n\na] pprove appointments to fill vacancies in the First Ward. i8 The\n\nminutes reflect that the Council\nvoted to fill two vacancies in the First Ward during the October\n9\n23, 2019, special meeting.\nAccordingly, the Council's agenda sufficiently described the general\nsubject matter of its final actions regarding First Ward vacancies.\nPublic Comment\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2018))\n\nprovides that \"[ a]\n\nperson who believes that a violation of this Act by a public body has occurred may file a\nrequest for review with the. Public Access Counselor established in the Office of the Attorney\nGeneral[.] * * *\n\nThe request for review * * *\n\nthe allegation.\" ( Emphasis\n\nmust include a summary of the facts supporting\n\nadded.)\n\nIn his Request for Review,\n\nthere was any public comment.\n\nwrote: \"\n\nMayor/ Alderman Welch asked if\n\nOne resident replied ' I didn' t know we could speak tonight.'\n\nsaid we can't, it's not on the agenda. I believe a special meeting must adhere to the\n\nLetter\n\nfrom Mariah M. Wallace, Capps, Ancelet,\n\nIcenogle &\n\nWallace, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau ( November 27, 2019), at 2.\n\nCity of Colchester City Council, Special Council Meeting, Agenda Item 6, Approve appointments\nof Aldermen to fill vacancies in the First Ward ( October 23, 2019).\n\n9City of Colchester City Council, Special Meeting, October 23, 2019, Minutes 1.\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 5\n\nagenda and only the agenda. Mayor/ Alderman Welch said ' well fine' while acting quite\ndisgusted. I believe this is a violation. i10\n\nAs noted above, section 2. 02( c) of OMA requires a public body' s meeting agenda\nto \" set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal\n\naction at the\n\nmeeting.\"\n\nThis provision does not, however, require public bodies to designate\n\na specific period for public comment. Nor is there such a requirement in section 2. 06( g) of\nOMA,\n\nwhich\n\nmerely states that \"[ a] ny person\n\nshall be permitted an opportunity to address public\nby the public body.\" The Public Access\n\nofficials under the rules established and recorded\n\nBureau has previously determined that OMA does not require a public body to provide advance\nnotice of the opportunity for public comment on its meeting agenda. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 37996, issued August 1, 2016, at 3.\n\nFurther,\n\nsubmission does not include any information indicating that\n\nthe Council prohibited any individual from exercising his or her statutory right to address the\nCouncil. This office has previously determined that to warrant further action by this office, a\n\nRequest for Review concerning public comment must set forth facts indicating that a member of\nthe public attempted to address public officials during an open meeting but was improperly\n\nrestricted by the public body from doing so. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 42017,\nissued June 1, 2016, at 1- 2 ( determining that a Request for Review alleging that a board' s public\ncomment rules violated section 2. 06( g) of OMA did not warrant further inquiry because the\n\nRequest for Review did not allege that anyone attempted to address the board during an open\nmeeting but was denied an opportunity to speak).\n\nRequest for Review did not allege\n\nthat anyone was denied the opportunity to address the Council. Accordingly, this office\nconcludes that\nhas not provided facts to support his allegation of a violation of either\nsection 2. 02( c) or 2. 06( g).\nActing Mayor Welch' s Comments after Adjournment\nalleged:\n\nAfter the meeting was adjourned, Mayor Welch made an\nannouncement to the media and council members who were in the\n\non [ sic] that the Sheriff has spoke to her and told her that his\n\ndepartment is not interested in providing police services to our\ntown. I believe this to be a violation also as it was not on the\nagenda, and it was after an adjournment. There were 5 council\n\n1' Letter from\nNovember 11, 2019).\n\nto [ Public Access Bureau, Office of the Attorney General]\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 6\n\nmembers and the city clerk still discussing city business.\nAlderman Clark ha[ d] left the room. l' 1]\n\nThis office construes\n\ncontention as alleging that the Council held an\n\nimproper meeting after the adjournment of the October 23, 2019, special meeting. The\nrequirements of OMA apply to each \" meeting\" of a public body. 5 ILCS 120/ 1 ( West 2018).\nSection 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2018))\n\ndefines \" meeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic\n\nmeans ( such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.]\nThe Council is comprised of six aldermen and a mayor. Thus, if three members\nof the Council engaged in deliberative discussions of public business after the October 23, 2019,\n\nspecial meeting, all of the procedural safeguards and requirements of OMA would apply.\n\nhas alleged that only Acting Mayor Welch made a statement concerning public business\nafter the meeting. Accordingly, he has not provided facts sufficient to support a conclusion that\na majority of a quorum of Council members discussed public business outside of an open\nmeeting.\n\nOMA Training\nIn his Request for Review,\nsubmitted\n\na\n\nFreedom\n\nof\n\nexplained that on October 23, 2019, he\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2018)) request to\n\nthe City of Colchester ( City) seeking copies of the OMA training certificates for five named\naldermen.\n\nOn October 29, 2019, he received the requested certificates, which he provided to this\n\noffice with his Request for,Review. He pointed out that three of the aldermen took the training\nonly after the City received his FOIA request, which he alleged was a violation of OMA.\nSection 1. 05( b) of OMA provides the requirements for members of public bodies\n\nto complete ' the electronic training program developed by the Public Access Counselor:\nExcept as otherwise provided in this Section, each elected\n\nor appointed member of a public body subject to this Act who\n\nLetter from\nNovember\n\n11,\n\n2019).\n\nPublic Access Bureau, Office of the Attorney General]\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 7\n\nbecomes such a member after the effective date of this amendatory\nAct of the 97th General Assembly shall successfully complete the\nelectronic training curriculum developed and administered by the\n\nPublic Access Counselor. For these members, the training must be\ncompleted not later than the 90th day after the date the member:\n1)\n\ntakes the oath of office, if the member is required to\n\ntake an oath of office to assume the person' s duties\n\nas a member of the public body; or\n2)\n\notherwise assumes responsibilities as a member of\n\nthe public body, if the member is not required to\ntake an oath of office to assume the person' s duties\n\nas a member of the governmental body.\nEach member successfully completing the electronic\ntraining curriculum shall file a copy of the certificate of completion\nwith the public body.\n\nThe failure of one or more members of a public body to\ncomplete the training required by this Section does not affect the\nvalidity of an action taken by the public body.\n\nAn elected or appointed member of a public body subject to\nthis Act who has successfully completed the training required\nunder this subsection ( b) and filed a copy of the certificate of\ncompletion with the public body is not required to subsequently\ncomplete the training required under this subsection ( b).\n\nThe OMA electronic training certificates furnished to this office by\nindicate that the five Council members identified in\n\nFOIA request had completed the\n\ntraining required by section 1. 05 of OMA by October 28, 2019. This office notes that under the\n\nplain language of section 1. 05( b) of OMA, an elected or appointed member of a public body is\nrequired to complete the electronic training within 90 days of taking the oath of office or\nassuming the responsibilities of the office if an oath is not required. This office also notes that\n\nan elected or appointed member of a public body who has previously completed the OMA\nelectronic training is not required to take the training again; only the members who are\ndesignated to take the training annually\n\nunder section\n\n1. 05( a) of OMA ( 5 ILCS 120/ 1. 05( a)\n\n\fMs. Mariah M. Wallace\n\nFebruary 21, 2020\nPage 8\n\nWest 2018))\n\nmust take the training each year, although elected or appointed members may wish\nto voluntarily take the training more than once to obtain updates and information about changes\n\nin the law. To the extent that members did not complete the electronic training within the\n\nstatutory time frame, the Council has violated OMA. OMA, however, provides no penalty for\nlate completion of the electronic training curriculum. This office cautions the Council to ensure\nthat in the future, any new members who have not previously completed the OMA electronic\ntraining curriculum as a member of any other public body complete the curriculum within 90\n\ndays after taking the oath of office or, if no oath is _required, otherwise assuming the\nresponsibilities of a member of the Council, and promptly file a copy of the certificate of\ncompletion\n\nwith the Council.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter, LHarter@atg. state. il.us, or (217) 524- 7958.\nThis letter serves to close\n\nthis file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n60547 o 202a proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A special city council meeting's agenda and member training","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"no_violation","plain_summary_pre_audit_fix":"A citizen complained that the City of Colchester City Council violated the Open Meetings Act by discussing topics not on the agenda at a special meeting, by how public comment was handled, and by certain members' compliance with training requirements. The Illinois Attorney General's Public Access Bureau reviewed the claims and concluded that the Council did not violate the OMA regarding the agenda topics or public comment. The determination did not address the training compliance allegation.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60547/","full_text":"FFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nFebruary 21, 2020\n\nVia electronic mail\n\nMs. Mariah M. Wallace\nCapps, Ancelet, Icenogle &\n\nWallace\n\n55 South Adams Street\nP. O. Box 250\n\nCarthage, Illinois 62321\nRE:\n\nDear\n\nOMA Request for Review —2019 PAC 60547\n\nand Ms. Wallace:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City of Colchester City Council (Council) did not violate OMA in\nconnection with its October 23, 2019, special meeting.\nBACKGROUND\n\nIn his Request for Review,\nthe\n\nalleged four violations of OMA by\n\nCouncilconcerning: (1) discussion of topics at the October 23, 2019, special meeting that\n\nwere\n\nnot\n\non, the agenda; (2) public\n\ncomment at the\n\nOctober 23, 2019,\n\nspecial meeting; (3)\n\nstatements made to the media and other Council members by Acting Mayor Frances Welchafter\nthe adjournment of the October 23, 2019, special meeting; and (4) certain Council members'\n\ncompliance with OMA's online training requirements.\nOn November 20, 2019, this office sent a copy of the Request for Review to the\nCouncil and requested that it provide a written response to the allegations that the Council\n\ndiscussed topics that were not included on the October 23, 2019, special meeting agenda. This\n\n500 South\n100\n601\n\nSecond\n\nStreet,\n\nSpringfield,\n\nIllinois\n\n62701 • (West Randolph Street, Chicago, Illinois 60601 • (South\n\nUniversity\n\n217) 782- 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n\n312) 814- 3000 • TTY: (800) 964- 3013 • Fax: (312) 814- 3806\nAve.. Carbondale. Illinois 62901 • (618) 529- 6400 • TTY: (877) 675- 9339 • Fax: (618) 529- 6416\n\noffice asked the Council to provide copies of the October 23, 2019, special meeting agenda and\nall minutes from that meeting, whether from open or closed sessions. On December 2, 2019, this\noffice received the Council's response. On December 5, 2019, this office forwarded the\nCouncil's written response to\non December 10, 2019, he replied.\nDETERMINATION\n\nSpecial Meeting Agenda\n\nasserted that during the October 23, 2019, special meeting, the Council\ndiscussed two topics that were\n\nnot on the\n\nOctober 23, 2019,\n\n1) Acting\nMayor Welch's resignation as First Ward Alderman; and (2) snow removal. This office\nconstrues\ncomplaint as alleging violations of section 2. 02(a) of OMA (5 ILCS\nspecial\n\nmeeting\n\nagenda: (I\n\n120/ 2. 02(a) (West 2018)).\n\nSection 2. 02(a) provides that \"[\n\np] ublic notice of any special meeting\n\nshall be given at least 48 hours before such meeting, which notice shall also include the\nagenda for the special * * *\nmeeting, but the validity of any action taken by the public body\nwhich is germane to a subject on the agenda shall not be affected by other errors or omissions in\nthe agenda.\"\n\nSection 2. 02(a) of OMA further provides that \" the requirement of a regular\n\nmeeting agenda shall not preclude the consideration of items not specifically set forth in the\nEmphasis\n\nAlthough a public body may discuss items not included on the\nagenda during a regular meeting under the express language of section 2. 02(a) of OMA, the\nagenda.\" (added.)\n\nGeneral Assembly did not provide similar language concerning the agenda for a special meeting.\n\nSee People\n\nv.\n\nSmith, 2016 IL 119659, ¶ 30, 76 N.E. 3d 1251, 1258 (2016) (\"[ W] here the\n\nlegislature includes particular language in one section of a statute but omits it in another section\nof the same statute, courts will presume that the legislature acted intentionally in the exclusion or\ninclusion.\");\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 32604, issued April 9, 2015, at 3 (public body\n\nviolated OMA by discussing a topic at a special meeting which was not listed on the posted\nagenda).\n\nThis office has also concluded, however, that simple announcements at special\n\nmeetings that are not accompanied by discussions among members of the public body do not rise\nto the level of \"the consideration of items\" under section 2. 02(a) of OMA, and therefore are not\nrequired to be on the special meeting agenda. Ill. Att' y Gen. PAC Req. Rev. Ltr. 58725, issued\nSeptember 12, 2019, at 2, 3 (concluding that individual public body members' statements on\nupcoming community events and the status of applications for board vacancies did not amount to\n\ndeliberative discussions during a special meeting).\nThe Council contends that Acting Mayor Welch's resignation as Alderman of the\n\nFirst Ward was \" simply an announcement,\" I as \" the decision to resign was an action taken solely\n\nby Mayor Welch pursuant to the authority granted to her by\" 2 section 3. 1- 10- 50(d) of the Illinois\nMunicipal Code (65 ILCS 5/ 3. 1- 10- 50(d) (West 2018)).\n\nAccording to section 3. 1- 10- 50(d) of the Municipal Code, an acting mayor's\n\ndecision to resign his or her original office does not require a vote or discussion by other\nmembers of the public body, but it does require that \" the original office must be filled pursuant\nto the terms\n\nof this\n\nSection.\n\ni3\n\nActing Mayor Welch's announcement that she was resigning did,\nnot require discussion or action by the Council, but triggered the requirement for the. Council to\n\nfill her vacancy, which it did immediately after her announcement. 4 The agenda for the October\n23, 2019,\n\nspecial meeting\n\nlisted the item \"[ a] pprove appointments of Aldermen to fill vacancies\n\nin the First Ward. i5 Therefore the Council did not engage in discussion or action in violation of\n\nOMA because notice that alderman vacancies would be filled was provided on the agenda.\nIn his Request for Review,\nalso stated that \" Mayor Welch proceeded to\ntalk about snow removal, who would do it, and that there needed to be discussion on guidelines\nfor when the snow\n\nremoval\n\ncrew\n\nis brought\n\ni6 but that there was no mention of snow\n\nout[ ]\n\nremoval on the meeting agenda. In its response to this office, the Council stated that a part time\ncity employee asked the mayor to inform the council that he would fill in for another employee\n\n2 Letter from Mariah\n\nM. Wallace, Capps,\n\nAncelet,\n\nIcenogle &\n\nWallace, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau (November 27, 2019), at 1.\nSection 3. 1- 10- 50(d) of the Municipal\n\nCode provides,\n\nin relevant part,\n\nThe election of an acting mayor or acting president pursuant to subsection (f) or\ng) does not create a vacancy in the original office of the person on the city\ncouncil or as a trustee, as the case may be, unless the person resigns from the\n\noriginal office following election as acting mayor or acting president. If the\nperson resigns from the original office following election as acting mayor or\nacting president, then the original office must be filled pursuant to the terms of\n\nthis Section and the acting mayor or acting president shall exercise the powers\nof the mayor or president\n\nand shall vote and have veto power in the manner\n\nprovided by law for a mayor or president.\n\n4 City of Colchester City Council, Special Meeting, October 23, 2019, Minutes 1.\n\n5 City of Colchester City Council, Special Council Meeting, Agenda Item 6, Approve appointments\nof Aldermen\n\nto fill vacancies\n\nin the First Ward (October 23, 2019).\n\nduring his vacation and would also be available for snow removal, thus the topic of snow\n7\nmerely an announcement only\" by Acting Mayor Welch.\n\nremoval was \"\n\nThe nature of Acting Mayor Welch's statement on snow removal appears to have\nbeen an announcement, as opposed to deliberative discussion of the topic. Although the parties\nagree that the mayor stated that the topic of snow removal guidelines\n\nwould need to be addressed\n\nby the Council in the future,\ndid not allege nor did the Council's response indicate that\nanyone other than the mayor talked about snow removal at the special meeting. Accordingly,\n\nthis office concludes that the Council did not discuss snow removal at that meeting in violation\nof OMA.\n\nalso appears to object to the Council's vote to appoint an individual to\n\nfill the Acting Mayor's First Ward vacancy. This office construes this contention asalleging a\nviolation\n\n2. 02(c) of OMA (5 ILCS 120/ 2. 02(c) (West 2018)),\n\nof section\n\nwhich\n\nprovides: \"\n\nAny\n\nagenda required under this' Section shall set forth the general subject matter of any resolution or\nordinance that\n\nthe\n\nspecial\n\nwill\n\nbe the subject of final action\n\nmeeting\n\nstated: \"[\n\nat the\n\nmeeting.\"\n\nAs noted above, the agenda for\n\na] pprove appointments to fill vacancies in the First Ward. i8 The\n\nminutes reflect that the Council\nvoted to fill two vacancies in the First Ward during the October\n9\n23, 2019, special meeting.\nAccordingly, the Council's agenda sufficiently described the general\nsubject matter of its final actions regarding First Ward vacancies.\nPublic Comment\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2018))\n\nprovides that \"[ a]\n\nperson who believes that a violation of this Act by a public body has occurred may file a\nrequest for review with the. Public Access Counselor established in the Office of the Attorney\nGeneral[.] * * *\n\nThe request for review * * *\n\nthe allegation.\" (Emphasis\n\nmust include a summary of the facts supporting\n\nadded.)\n\nIn his Request for Review,\n\nthere was any public comment.\n\nwrote: \"\n\nMayor/ Alderman Welch asked if\n\nOne resident replied ' I didn' t know we could speak tonight.'\n\nsaid we can't, it's not on the agenda. I believe a special meeting must adhere to the\n\nLetter\n\nfrom Mariah M. Wallace, Capps, Ancelet,\n\nIcenogle &\n\nWallace, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau (November 27, 2019), at 2.\n\nCity of Colchester City Council, Special Council Meeting, Agenda Item 6, Approve appointments\n\nagenda and only the agenda. Mayor/ Alderman Welch said ' well fine' while acting quite\ndisgusted. I believe this is a violation. i10\n\nAs noted above, section 2. 02(c) of OMA requires a public body's meeting agenda\nto \" set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal\n\naction at the\n\nmeeting.\"\n\nThis provision does not, however, require public bodies to designate\n\na specific period for public comment. Nor is there such a requirement in section 2. 06(g) of\nOMA,\n\nwhich\n\nmerely states that \"[ a] ny person\n\nshall be permitted an opportunity to address public\nby the public body.\" The Public Access\n\nofficials under the rules established and recorded\n\nBureau has previously determined that OMA does not require a public body to provide advance\nnotice of the opportunity for public comment on its meeting agenda. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 37996, issued August 1, 2016, at 3.\n\nFurther,\n\nsubmission does not include any information indicating that\n\nthe Council prohibited any individual from exercising his or her statutory right to address the\nCouncil. This office has previously determined that to warrant further action by this office, a\n\nRequest for Review concerning public comment must set forth facts indicating that a member of\nthe public attempted to address public officials during an open meeting but was improperly\n\nrestricted by the public body from doing so. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 42017,\nissued June 1, 2016, at 1- 2 (determining that a Request for Review alleging that a board's public\ncomment rules violated section 2. 06(g) of OMA did not warrant further inquiry because the\n\nRequest for Review did not allege that anyone attempted to address the board during an open\nmeeting but was denied an opportunity to speak).\n\nRequest for Review did not allege\n\nthat anyone was denied the opportunity to address the Council. Accordingly, this office\nconcludes that\nhas not provided facts to support his allegation of a violation of either\nsection 2. 02(c) or 2. 06(g).\nActing Mayor Welch's Comments after Adjournment\nalleged:\n\nAfter the meeting was adjourned, Mayor Welch made an\nannouncement to the media and council members who were in the\n\non [ sic] that the Sheriff has spoke to her and told her that his\n\ndepartment is not interested in providing police services to our\n\nmembers and the city clerk still discussing city business.\nAlderman Clark ha[ d] left the room. l' 1]\n\nThis office construes\n\ncontention as alleging that the Council held an\n\nimproper meeting after the adjournment of the October 23, 2019, special meeting. The\nrequirements of OMA apply to each \" meeting\" of a public body. 5 ILCS 120/ 1 (West 2018).\nSection 1. 02 of OMA (5 ILCS 120/ 1. 02 (West 2018))\n\ndefines \" meeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic\n\nmeans (such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.]\nThe Council is comprised of six aldermen and a mayor. Thus, if three members\nof the Council engaged in deliberative discussions of public business after the October 23, 2019,\n\nspecial meeting, all of the procedural safeguards and requirements of OMA would apply.\n\nhas alleged that only Acting Mayor Welch made a statement concerning public business\nafter the meeting. Accordingly, he has not provided facts sufficient to support a conclusion that\na majority of a quorum of Council members discussed public business outside of an open\nmeeting.\n\nOMA Training\nIn his Request for Review,\nsubmitted\n\na\n\nFreedom\n\nof\n\nexplained that on October 23, 2019, he\n\nInformation Act (FOIA) (5 ILCS 140/ 1 et seq. (West 2018)) request to\n\nthe City of Colchester (City) seeking copies of the OMA training certificates for five named\naldermen.\n\nOn October 29, 2019, he received the requested certificates, which he provided to this\n\noffice with his Request for,Review. He pointed out that three of the aldermen took the training\nonly after the City received his FOIA request, which he alleged was a violation of OMA.\nSection 1. 05(b) of OMA provides the requirements for members of public bodies\n\nto complete ' the electronic training program developed by the Public Access Counselor:\nExcept as otherwise provided in this Section, each elected\n\nor appointed member of a public body subject to this Act who\n\nbecomes such a member after the effective date of this amendatory\nAct of the 97th General Assembly shall successfully complete the\nelectronic training curriculum developed and administered by the\n\nPublic Access Counselor. For these members, the training must be\ncompleted not later than the 90th day after the date the member:\n1)\n\ntakes the oath of office, if the member is required to\n\ntake an oath of office to assume the person's duties\n\nas a member of the public body; or\n2)\n\notherwise assumes responsibilities as a member of\n\nthe public body, if the member is not required to\ntake an oath of office to assume the person's duties\n\nas a member of the governmental body.\nEach member successfully completing the electronic\ntraining curriculum shall file a copy of the certificate of completion\nwith the public body.\n\nThe failure of one or more members of a public body to\ncomplete the training required by this Section does not affect the\nvalidity of an action taken by the public body.\n\nAn elected or appointed member of a public body subject to\nthis Act who has successfully completed the training required\nunder this subsection (b) and filed a copy of the certificate of\ncompletion with the public body is not required to subsequently\ncomplete the training required under this subsection (b).\n\nThe OMA electronic training certificates furnished to this office by\nindicate that the five Council members identified in\n\nFOIA request had completed the\n\ntraining required by section 1. 05 of OMA by October 28, 2019. This office notes that under the\n\nplain language of section 1. 05(b) of OMA, an elected or appointed member of a public body is\nrequired to complete the electronic training within 90 days of taking the oath of office or\nassuming the responsibilities of the office if an oath is not required. This office also notes that\n\nWest 2018))\n\nmust take the training each year, although elected or appointed members may wish\nto voluntarily take the training more than once to obtain updates and information about changes\n\nin the law. To the extent that members did not complete the electronic training within the\n\nstatutory time frame, the Council has violated OMA. OMA, however, provides no penalty for\nlate completion of the electronic training curriculum. This office cautions the Council to ensure\nthat in the future, any new members who have not previously completed the OMA electronic\ntraining curriculum as a member of any other public body complete the curriculum within 90\n\ndays after taking the oath of office or, if no oath is _required, otherwise assuming the\nresponsibilities of a member of the Council, and promptly file a copy of the certificate of\ncompletion\n\nwith the Council.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter, LHarter@atg. state. il.us, or (217) 524- 7958.\nThis letter serves to close\n\nthis file.\n\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n60547 o 202a proper mun"}
{"id":1323,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-02-22","case_number":null,"request_numbers":["60662"],"title":"Town of Normal violated Open Meetings Act by restricting public comment on non-agenda topic","filename":"60662, issued February 22, 2021.pdf","rel_path":null,"word_count":2519,"summary":"A requester alleged that the Town of Normal Town Council violated the Open Meetings Act by improperly limiting his public comment during a meeting. The PAC determined that the Council violated section 2.06(g) of the OMA by restricting public comment, but took no further action because the Council subsequently amended its rules.","plain_summary":"A citizen complained that the Town of Normal Council unfairly stopped him from speaking during a public meeting because his topic wasn't on the agenda. The Attorney General's office agreed that the Council's actions violated the Open Meetings Act's rules on public comment. Because the Town has since revised its rules for public comment, the case was closed without further penalties.","holding":"The Town of Normal violated section 2.06(g) of the Open Meetings Act by improperly limiting public comment during its September 16, 2019, meeting.","legal_question":"Did the Town of Normal violate section 2.06(g) of the Open Meetings Act by restricting a member of the public from speaking on a topic not specifically listed on the meeting agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Town of Normal","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerns the limitations placed on public comment during a Town Council meeting regarding topics not explicitly listed on the agenda.","ocr_status":"ok","ocr_quality":94.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/unreasonable-rules/60662, issued February 22, 2021.pdf","sha256":"a9c5a642744a29a1378e556dce1133b8d53f9b2bcc83d98d64aac891bf2ce450","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting rules","Open Meetings Act","agenda"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nFebruary 22, 2021\n\nVia electronic\n\nmail\n\nVia electronic mail\n\nMr. Brian Day\nCorporation Counsel\nTown of Normal\n\n11 Uptown Circle\nNormal, Illinois\n\n61761\n\nbday@normal. org\nRE:\n\nDear\n\nOMA Request for Review — 2019 PAC 60662\n\nand Mr. Day:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that that the Town of Normal ( Town) Town Council ( Council) violated section 2. 06( g)\n\nof OMA (5 ILCS 120/ 2. 06( g) ( West 2018)) by improperly limiting\n\npublic\n\ncomment during its September 16, 2019, meeting. Because the Council has since revised its\nrules for public comment, however, no further remedial action is recommended.\n\nOn November 15, 2019, this office received\n\nRequest for Review\n\nalleging that the Council violated OMA by interrupting him and denying him the right to finish\naddressing the Council at its September 16, 2019, meeting because he was speaking about a topic\nthat was not listed on the agenda.\n\nasserted that the topic of his comment was\n\ngermane to the agenda and that the Council allowed speakers immediately before him to address\nthe Council on matters not on the agenda.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: 4800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South\n\nUniversity Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brian Day\nFebruary 22, 2021\nPage 2\n\nOn December 4, 2019, this office forwarded a copy of the Request for Review to\nthe Council and asked it to provide this office with a detailed written response to the allegations\n\nraised by\n\nand provide this office with copies of the minutes, agenda, and recordings\n\nof the September 16, 2019, meeting, as well as a copy of the Council' s rules for public comment.\nOn December 18, 2019, Mr. Brian Day, Corporation Counsel for the Town, furnished the\nrequested information and a written response on behalf of the Council.\n\nreplied on\n\nJanuary 3, 2020.\nDETERMINATION\n\nSection 2. 06( g) of OMA provides: \" Any person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\nSection 2. 06( g) Provides the Right to Comment at Public Meetings\n\nIn enacting section 2. 06( g), the General Assembly created a statutory right, within\nthe Open Meetings Act, to address public officials. The Council argued in its response that\n\nsection 2. 06( g) of OMA does not require public comment at meetings of public bodies because\n\nsection 2. 06( g) does not mention meetings. The statutory right to address public officials set out\nin section 2. 06( g) of OMA, however, must be interpreted as part of OMA as a whole. See\nJackson v. Board ofElection Commissioners, 2012 IL 111928, ¶ 48, 975 N. E. 2d 583, 596 ( 2012)\na \" statute should be evaluated as a whole, with each provision construed in connection with\n\nThe public policy of the State, as implemented by OMA, is that the public\nbe given advance notice of and the right to attend all meetings at which any business of the\n\nevery other section.\").\npublic\n\nbody is discussed\n\nor acted\n\nupon\n\nin any way.\" (\n\nEmphasis added.)\n\n5 ILCS 120/ 1 ( West\n\n2018):\n\nOMA requires, among other things, proper posting of a notice and an agenda for every\npublic meeting ( 5 ILCS 120/ 2. 02 ( West 2018)) and holding those meetings at specified times and\nplaces that are convenient and open to the public ( 5 ILCS 102/ 2. 01( West 2018), as amended by\nPublic Act 101- 640, effective June 12, 2020). Further, section 2. 06 of OMA ( 5 ILCS 120/ 2. 06\n\nWest 2018)) requires public bodies to keep written minutes of all their meetings, to make\nminutes of open meetings available to the public, to make a verbatim recording of its closed\n\nmeetings, among other statutory requirements for public body meetings. If the General\nAssembly intended to create a statutory right to address public officials outside of meetings\nSee\n\nalso\n\n735 ILCS 110/ 5 ( West 2018) (\"[\n\nIlt is declared to be the public policy of the State of\n\nIllinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process\nof government\n\nmust\n\nbe\n\nencouraged\n\nand\n\nsafeguarded\n\nwith\n\ngreat\n\ndiligence. * * *\n\nThe laws.\n\ncourts,\n\nand other agencies\n\nof this State must provide the utmost protection for the free exercise of these rights of petition, speech, association,\nand\n\ngovernment\n\nparticipation.\").\n\n\fMr. Brian Day\nFebruary 22, 2021\nPage 3\n\nsubject to OMA, it would not have placed the right to address public officials within the Open\n\nMeetings Act and specifically added it to section 2. 06, which sets forth a variety of requirements\nfor meetings of public bodies. Viewing the right to address public officials within the framework\nof OMA as a whole, section 2. 06( g) cannot reasonably be construed to exclude meetings of\npublic bodies.\nThe Right to Public Comment is not Limited to Agenda Items\n\nAs stated above, section 2. 06( g) of OMA provides that \"[ a] ny person shall be\npermitted an opportunity to address public officials under the rules established and recorded by\n\nthe public body.\" Although OMA does not specifically address the types of rules that a public\nbody may enforce during the public comment portion of an open meeting, ordinarily only\nreasonable \" time, place, and manner\"\na\n\ndesignated\n\npublic\n\nforum\n\nunder\n\nrestrictions\n\nthat are content - neutral are permissible\n\nthe first amendment\n\nto the United States Constitution!\n\nin such\n\nSee\n\ne. g., Surita v. Hyde, 665 F. 3d 860, 869- 872 ( 7th Cir. 2011) ( holding that audience time during\ncity council meetings constitutes designated public forums under the first amendment, and that\n\nbarring a speaker from addressing city council meeting unless he apologized for actions that\noccurred two days earlier was not a content -neutral, time, place or manner restriction, and,\n\ntherefore, was unconstitutional);\n\nTimmon v. Wood, 633 F. Supp. 2d 453, 465 ( W. D. Mich. 2008)\n\nCity Councils have legitimate reasons for having rules to maintain decorum at public meetings[\nand \"\n\nto assure that the meetings\n\ncan\n\nbe efficiently\n\nconducted.\").\n\nFurther,\n\nthe rules must tend\n\nto accommodate, rather than unreasonably restrict, the right to address public officials. III. Att'y\n\nGen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 6; see, also e.g., Reed v. Town of\nGilbert, Ariz., 576 U. S. 155, 163, 135 S. Ct. 2218, 2226 ( 2015) ( content -based laws, which are\n\nthose that target speech based on its communicative content, are generally prohibited);\nThe Town' s rules for public comment in effect at the time of the September 16,\n\n2019, Council meeting provided, in pertinent part, that \"[ 41 public comments must be germane\nto the meeting agenda of the public body. i3 The Council cites several first amendment court\n\ndecisions in support of its contention that it may limit public comments under section 2. 06( g) to\nmatters that are germane and relevant to the agenda.\n\nAlthough courts have held that a public\n\nbody may limit public comment to matters on the agenda without violating the first amendment\n\n2U. S. Const., amend. 1, the protections of which apply to the states through the fourteenth\namendment. See Surita v. Hyde, 665 F. 3d 860, 869, n. 2 ( 7th Cir. 2011).\n\n3Town of Normal,\n\nResolution\n\nNo. 5683,\n\nadopted\n\nJune 3, 2019.\n\n\fMr. Brian Day\nFebruary 22, 2021\nPage 4\n\nright\n\nto address\n\npublic\n\nofficials\n\nin a designated public forum such as a council meeting, 4 the\n\nstatutory right to address a public body during an open meeting under OMA does not allow for\nsuch a narrow rule. Although first amendment case law pertaining to permissible limitations of\n\nspeakers during public meetings provides useful guidance, OMA is a statutory scheme. The\nright to address public officials under section 2. 06( g) of OMA must be analyzed in the context of\n\nthat statute as a whole. OMA does not preclude members of a public body from \" the\nconsideration of items not specifically set forth in the agenda,\" ( 5 ILCS 120/ 2. 02( a) ( West\n2018)), as long as the public body does not take final action on items not listed on the agenda.\n\nGiven that the public body itself is able to discuss matters that are not specifically listed on the\nagenda, a rule that would prohibit members of the public from addressing matters that are not\n\nlisted on the agenda would impermissibly restrict the right to public comment. Accordingly, this\noffice has determined that a rule limiting participants to speaking only on subjects listed on the\nagenda would exceed the scope of permissible rulemaking authorized by section 2. 06( g). See,\n\ne. g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 38037, issued August 1, 2016, at 3; Ill. Att' y Gen. PAC\nReq. Rev. Ltr. 45349, issued March 16, 2017, at 6.\nThese determinations, however, do not conclude that participants have complete\n\nfreedom to address a public body on any issue. Rather, under section 2. 06( g), a public body may\nestablish rules that limit public comment to matters directly relevant or germane to the business\nof that particular public body. Otherwise, allowing the public to comment on matters unrelated to\n\npublic business would impede the public body' s ability to run efficient meetings. See, e. g.,\nScroggins v. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 ( D. Kan. 1998) ( city council did not\nviolate first amendment to the United States Constitution by restricting personal comments about\nan appointee to a mayoral commission that were not directly relevant to the business of the\n\npublic body); Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6\nCommission did not violate 2. 06( g) by limiting public comment to matters that were germane to\nmatters that the Commission had the authority to consider); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n51665, issued February 5, 2019, at 7 ( board did not violate section 2. 06( g) by prohibiting speaker\nfrom commenting on highly personal matters not related to the business of the board).\nSee, e. g., Youkhanna v. City of Sterling Heights, 934 F. 3d 508, 519 ( 6th Cir. 2019) ( city council\ndid not violate the first amendment because its rule requiring comments to be relevant to the agenda was reasonable\nin light of the purpose served by the forum -- meeting to approve a settlement that would give zoning permission to\nbuild a mosque -- and because the rule limiting public comment to the agenda item was viewpoint -neutral);\nEichenlaub\nTwp. of Indiana, 385 F. 3d 274, 281 ( 3d Cir. 2004) (\"[ M] atters presented at a citizen' s forum may be\nv.\n\nlimited\n\nto\n\nissues\n\nCir. 1990) (\"[\n\nto town\n\nWhite v. City of Norwalk, 900 F. 2d 1421, 1425 ( 9th\nI] n dealing with agenda items, the Council does not violate the first amendment when it restricts public\ngermane\n\ngovernment.\");\n\nspeakers to the subject at hand.\"); I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, 924 ( N. D. III.\n2009) (\" A council does not violate the First Amendment when it limits public participants to speaking only about\nsubjects\n\non\n\nthe\n\nagenda.\").\n\n\fMr. Brian Day\nFebruary 22, 2021\nPage 5\n\nThis office has reviewed the material provided by the Council and\nincluding the relevant sections of the recording of the meeting. Item 5( B) of the agenda for the\nSeptember 16, 2019, meeting provides: \" Report to Receive and File Town of Normal\nExpenditures\nfor Payment as of September 11, 2019[.]\" 8 In its response to this office, the\nCouncil acknowledged that the expenditures included a subsidy payment to the local transit\nsystem, Connect Transit. While addressing the Council,\nattempted to discuss an\nappointment to the local transit system board.\n\nThe Mayor interrupted him twice and informed\n\nhim each time that the matter was not an agenda matter, despite allowing other members of the\n\npublic to freely discuss matters not on the agenda without interruption, including concerns over\npolice and fire pensions and recycling.\n\nabided by the Mayor' s wishes and did not\n\ncontinue to speak on the matter. 6 Later during the meeting, however, the Council discussed the\nlocal transit system, including the vacant board seat. A motion was made then to suspend it rules\nand allow\n\nto speak; the motion failed.'\n\ncomments were arguably related to the agenda item concerning\nexpenditures, in which case the Council would have failed to follow its own rule by cutting short\nhis opportunity to comment. However, there is no question that\npublic comments\nwere germane and relevant to the business of the Council since it discussed the very matter he\nwished to address during the meeting. Therefore this office concludes that the Council violated\nOMA when it enforced its improper rule limiting public comment to agenda items to preclude\nfrom addressing comments to the Council concerning the appointment to the local\ntransit system\n\nboard.\n\nOn January 7, 2021, Mr. Day, attorney for the Council, provided this office with\nthe Town' s amended rules for public comment, which were revised on October 19, 2020. The\n\namended rules provide that: \" Comments germane to an agenda item will be heard immediately\nfollowing the Pledge of Allegiance. Comments that are not germane to an agenda item will be\nheard immediately prior to the Concerns. All comments must be germane to matters concerning\nthe business of the Town of Normal.\" 8 Because the Town has amended its rules to expand the\n5Normal Town Council, Agenda ( September 16, 2019).\n\n6Normal Town Council, Meeting, September 16, 2019, Video Recording, 4: 15- 21: 23, available at\nhttps:// www. youtube. com/ watch? v— FLtYshTBvMU&\n\nt= 1271s.\n\n7Normal Town Council, Meeting, September 16, 2019, Video Recording, 2: 00: 06-2: 28: 52,\navailable\n\nat haps:// www. youtube. com/ watch? v= FLtYshTBvMU&\n\nt= 1271s.\n\nNormal\n\nATown of Normal, Resolution No. 5820, adopted October\n\n19, 2020\n\nMeeting, September 16, 2019, Minutes 5- 6.\n\nTown Council,\n\nRegular\n\n\fMr. Brian Day\nFebruary 22, 2021\nPage 6\n\nright to public comment consistent with this determination,\n\nno further remedial action is\n\nrequired.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at ( 312) 814- 5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery truly yours,\n\nEDIE STEINBERG\n\nL\n\nSenior Assistant Attorney GC\n\nPublic Access Bureau\n60662\n\no\n\n206g pub comment improper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Limitations on public comment at a town council meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60662/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nFebruary 22, 2021\n\nVia electronic\n\nmail\n\nVia electronic mail\n\nMr. Brian Day\nCorporation Counsel\nTown of Normal\n\n11 Uptown Circle\nNormal, Illinois\n\n61761\n\nbday@normal. org\nRE:\n\nDear\n\nOMA Request for Review — 2019 PAC 60662\n\nand Mr. Day:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) 5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that that the Town of Normal (Town) Town Council (Council) violated section 2. 06(g)\n\nof OMA (5 ILCS 120/ 2. 06(g) (West 2018)) by improperly limiting\n\npublic\n\ncomment during its September 16, 2019, meeting. Because the Council has since revised its\nrules for public comment, however, no further remedial action is recommended.\n\nOn November 15, 2019, this office received\n\nRequest for Review\n\nalleging that the Council violated OMA by interrupting him and denying him the right to finish\naddressing the Council at its September 16, 2019, meeting because he was speaking about a topic\nthat was not listed on the agenda.\n\nasserted that the topic of his comment was\n\ngermane to the agenda and that the Council allowed speakers immediately before him to address\nthe Council on matters not on the agenda.\n\nOn December 4, 2019, this office forwarded a copy of the Request for Review to\nthe Council and asked it to provide this office with a detailed written response to the allegations\n\nraised by\n\nand provide this office with copies of the minutes, agenda, and recordings\n\nof the September 16, 2019, meeting, as well as a copy of the Council's rules for public comment.\nOn December 18, 2019, Mr. Brian Day, Corporation Counsel for the Town, furnished the\nrequested information and a written response on behalf of the Council.\n\nreplied on\n\nJanuary 3, 2020.\nDETERMINATION\n\nSection 2. 06(g) of OMA provides: \" Any person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\nSection 2. 06(g) Provides the Right to Comment at Public Meetings\n\nIn enacting section 2. 06(g), the General Assembly created a statutory right, within\nthe Open Meetings Act, to address public officials. The Council argued in its response that\n\nsection 2. 06(g) of OMA does not require public comment at meetings of public bodies because\n\nsection 2. 06(g) does not mention meetings. The statutory right to address public officials set out\nin section 2. 06(g) of OMA, however, must be interpreted as part of OMA as a whole. See\nJackson v. Board ofElection Commissioners, 2012 IL 111928, ¶ 48, 975 N. E. 2d 583, 596 (2012)\na \" statute should be evaluated as a whole, with each provision construed in connection with\n\nThe public policy of the State, as implemented by OMA, is that the public\nbe given advance notice of and the right to attend all meetings at which any business of the\n\nevery other section.\").\npublic\n\nbody is discussed\n\nor acted\n\nupon\n\nin any way.\" (Emphasis added.)\n\n5 ILCS 120/ 1 (West\n\n2018):\n\nOMA requires, among other things, proper posting of a notice and an agenda for every\npublic meeting (5 ILCS 120/ 2. 02 (West 2018)) and holding those meetings at specified times and\nplaces that are convenient and open to the public (5 ILCS 102/ 2. 01(West 2018), as amended by\nPublic Act 101- 640, effective June 12, 2020). Further, section 2. 06 of OMA (5 ILCS 120/ 2. 06\n\nWest 2018)) requires public bodies to keep written minutes of all their meetings, to make\nminutes of open meetings available to the public, to make a verbatim recording of its closed\n\nmeetings, among other statutory requirements for public body meetings. If the General\nAssembly intended to create a statutory right to address public officials outside of meetings\nSee\n\nalso\n\n735 ILCS 110/ 5 (West 2018) (\"[\n\nIlt is declared to be the public policy of the State of\n\nIllinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process\nof government\n\nmust\n\nbe\n\nencouraged\n\nand\n\nsafeguarded\n\nwith\n\ngreat\n\ndiligence. * * *\n\nThe laws.\n\ncourts,\n\nand other agencies\n\nof this State must provide the utmost protection for the free exercise of these rights of petition, speech, association,\n\nsubject to OMA, it would not have placed the right to address public officials within the Open\n\nMeetings Act and specifically added it to section 2. 06, which sets forth a variety of requirements\nfor meetings of public bodies. Viewing the right to address public officials within the framework\nof OMA as a whole, section 2. 06(g) cannot reasonably be construed to exclude meetings of\npublic bodies.\nThe Right to Public Comment is not Limited to Agenda Items\n\nAs stated above, section 2. 06(g) of OMA provides that \"[ a] ny person shall be\npermitted an opportunity to address public officials under the rules established and recorded by\n\nthe public body.\" Although OMA does not specifically address the types of rules that a public\nbody may enforce during the public comment portion of an open meeting, ordinarily only\nreasonable \" time, place, and manner\"\na\n\ndesignated\n\npublic\n\nforum\n\nunder\n\nrestrictions\n\nthat are content - neutral are permissible\n\nthe first amendment\n\nto the United States Constitution!\n\nin such\n\nSee\n\ne. g., Surita v. Hyde, 665 F. 3d 860, 869- 872 (7th Cir. 2011) (holding that audience time during\ncity council meetings constitutes designated public forums under the first amendment, and that\n\nbarring a speaker from addressing city council meeting unless he apologized for actions that\noccurred two days earlier was not a content -neutral, time, place or manner restriction, and,\n\ntherefore, was unconstitutional);\n\nTimmon v. Wood, 633 F. Supp. 2d 453, 465 (W. D. Mich. 2008)\n\nCity Councils have legitimate reasons for having rules to maintain decorum at public meetings[\nand \"\n\nto assure that the meetings\n\ncan\n\nbe efficiently\n\nconducted.\").\n\nFurther,\n\nthe rules must tend\n\nto accommodate, rather than unreasonably restrict, the right to address public officials. III. Att'y\n\nGen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 6; see, also e.g., Reed v. Town of\nGilbert, Ariz., 576 U. S. 155, 163, 135 S. Ct. 2218, 2226 (2015) (content -based laws, which are\n\nthose that target speech based on its communicative content, are generally prohibited);\nThe Town's rules for public comment in effect at the time of the September 16,\n\n2019, Council meeting provided, in pertinent part, that \"[ 41 public comments must be germane\nto the meeting agenda of the public body. i3 The Council cites several first amendment court\n\ndecisions in support of its contention that it may limit public comments under section 2. 06(g) to\nmatters that are germane and relevant to the agenda.\n\nAlthough courts have held that a public\n\nbody may limit public comment to matters on the agenda without violating the first amendment\n\n2U. S. Const., amend. 1, the protections of which apply to the states through the fourteenth\namendment. See Surita v. Hyde, 665 F. 3d 860, 869, n. 2 (7th Cir. 2011).\n\nright\n\nto address\n\npublic\n\nofficials\n\nin a designated public forum such as a council meeting, 4 the\n\nstatutory right to address a public body during an open meeting under OMA does not allow for\nsuch a narrow rule. Although first amendment case law pertaining to permissible limitations of\n\nspeakers during public meetings provides useful guidance, OMA is a statutory scheme. The\nright to address public officials under section 2. 06(g) of OMA must be analyzed in the context of\n\nthat statute as a whole. OMA does not preclude members of a public body from \" the\nconsideration of items not specifically set forth in the agenda,\" (5 ILCS 120/ 2. 02(a) (West\n2018)), as long as the public body does not take final action on items not listed on the agenda.\n\nGiven that the public body itself is able to discuss matters that are not specifically listed on the\nagenda, a rule that would prohibit members of the public from addressing matters that are not\n\nlisted on the agenda would impermissibly restrict the right to public comment. Accordingly, this\noffice has determined that a rule limiting participants to speaking only on subjects listed on the\nagenda would exceed the scope of permissible rulemaking authorized by section 2. 06(g). See,\n\ne. g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 38037, issued August 1, 2016, at 3; Ill. Att' y Gen. PAC\nReq. Rev. Ltr. 45349, issued March 16, 2017, at 6.\nThese determinations, however, do not conclude that participants have complete\n\nfreedom to address a public body on any issue. Rather, under section 2. 06(g), a public body may\nestablish rules that limit public comment to matters directly relevant or germane to the business\nof that particular public body. Otherwise, allowing the public to comment on matters unrelated to\n\npublic business would impede the public body's ability to run efficient meetings. See, e. g.,\nScroggins v. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did not\nviolate first amendment to the United States Constitution by restricting personal comments about\nan appointee to a mayoral commission that were not directly relevant to the business of the\n\npublic body); Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6\nCommission did not violate 2. 06(g) by limiting public comment to matters that were germane to\nmatters that the Commission had the authority to consider); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n51665, issued February 5, 2019, at 7 (board did not violate section 2. 06(g) by prohibiting speaker\nfrom commenting on highly personal matters not related to the business of the board).\nSee, e. g., Youkhanna v. City of Sterling Heights, 934 F. 3d 508, 519 (6th Cir. 2019) (city council\ndid not violate the first amendment because its rule requiring comments to be relevant to the agenda was reasonable\nin light of the purpose served by the forum -- meeting to approve a settlement that would give zoning permission to\nbuild a mosque -- and because the rule limiting public comment to the agenda item was viewpoint -neutral);\nEichenlaub\nTwp. of Indiana, 385 F. 3d 274, 281 (3d Cir. 2004) (\"[ M] atters presented at a citizen's forum may be\nv.\n\nlimited\n\nto\n\nissues\n\nCir. 1990) (\"[\n\nto town\n\nWhite v. City of Norwalk, 900 F. 2d 1421, 1425 (9th\nI] n dealing with agenda items, the Council does not violate the first amendment when it restricts public\ngermane\n\ngovernment.\");\n\nspeakers to the subject at hand.\"); I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, 924 (N. D. III.\n2009) (\" A council does not violate the First Amendment when it limits public participants to speaking only about\n\nThis office has reviewed the material provided by the Council and\nincluding the relevant sections of the recording of the meeting. Item 5(B) of the agenda for the\nSeptember 16, 2019, meeting provides: \" Report to Receive and File Town of Normal\nExpenditures\nfor Payment as of September 11, 2019[.]\" 8 In its response to this office, the\nCouncil acknowledged that the expenditures included a subsidy payment to the local transit\nsystem, Connect Transit. While addressing the Council,\nattempted to discuss an\nappointment to the local transit system board.\n\nThe Mayor interrupted him twice and informed\n\nhim each time that the matter was not an agenda matter, despite allowing other members of the\n\npublic to freely discuss matters not on the agenda without interruption, including concerns over\npolice and fire pensions and recycling.\n\nabided by the Mayor's wishes and did not\n\ncontinue to speak on the matter. 6 Later during the meeting, however, the Council discussed the\nlocal transit system, including the vacant board seat. A motion was made then to suspend it rules\nand allow\n\nto speak; the motion failed.'\n\ncomments were arguably related to the agenda item concerning\nexpenditures, in which case the Council would have failed to follow its own rule by cutting short\nhis opportunity to comment. However, there is no question that\npublic comments\nwere germane and relevant to the business of the Council since it discussed the very matter he\nwished to address during the meeting. Therefore this office concludes that the Council violated\nOMA when it enforced its improper rule limiting public comment to agenda items to preclude\nfrom addressing comments to the Council concerning the appointment to the local\ntransit system\n\nboard.\n\nOn January 7, 2021, Mr. Day, attorney for the Council, provided this office with\nthe Town's amended rules for public comment, which were revised on October 19, 2020. The\n\namended rules provide that: \" Comments germane to an agenda item will be heard immediately\nfollowing the Pledge of Allegiance. Comments that are not germane to an agenda item will be\nheard immediately prior to the Concerns. All comments must be germane to matters concerning\nthe business of the Town of Normal.\" 8 Because the Town has amended its rules to expand the\n5 Normal Town Council, Agenda (September 16, 2019).\n\n6 Normal Town Council, Meeting, September 16, 2019, Video Recording, 4: 15- 21: 23, available at\nhttps:// www. youtube. com/ watch? v— FLtYshTBvMU&\n\nt= 1271s.\n\n7 Normal Town Council, Meeting, September 16, 2019, Video Recording, 2: 00: 06-2: 28: 52,\navailable\n\nat haps:// www. youtube. com/ watch? v= FLtYshTBvMU&\n\nt= 1271s.\n\nNormal\n\nright to public comment consistent with this determination,\n\nno further remedial action is\n\nrequired.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at (312) 814- 5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery truly yours,\n\nEDIE STEINBERG\n\nL\n\nSenior Assistant Attorney GC\n\nPublic Access Bureau\n60662\n\no\n\n206g pub comment improper\n\nmun"}
{"id":1324,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-12-19","case_number":null,"request_numbers":["61021"],"title":"DuPage County Board not in violation of OMA, PAC finds no further action on minutes complaint","filename":"61021, issued December 19, 2019.pdf","rel_path":null,"word_count":811,"summary":"The requester alleged that the DuPage County Board's open and closed session minutes for an April 23, 2019, meeting were inconsistent regarding motions made. The PAC determined that the requester failed to provide sufficient evidence to support the claim that the minutes were inadequate and closed the file.","plain_summary":"A citizen complained that the DuPage County Board's meeting minutes contained conflicting information about who made motions during a meeting. The Attorney General's office reviewed the complaint and decided not to take further action, noting that the requester did not provide enough evidence to prove the minutes were inaccurate or failed to meet legal requirements.","holding":"The PAC determined that no further action is warranted because the requester's allegations regarding the minutes were speculative and lacked supporting facts.","legal_question":"Whether the DuPage County Board violated section 2.06(a) of the Open Meetings Act by maintaining inconsistent open and closed session minutes.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"DuPage County Board","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The requester alleged inconsistencies between open and closed session minutes regarding motions made to enter and adjourn closed session.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_a/61021, issued December 19, 2019.pdf","sha256":"0013d46eecdf40b65009412c57e5e8c3fbe30b9aa19d974e0ec0f524a3f04922","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","closed session","Open Meetings Act","DuPage County Board"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nDecember\n\n19, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review — 2019 PAC 61021\nDear\n\nThis determination is issued pursuant to section 3. 5( a) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( a) ( West 2018)).\n\nOn December 14, 2019, this office received your Request for Review alleging that\nthe open session minutes and closed session minutes of the DuPage County Board' s April 23,\n2019, meeting are inconsistent. You state that the Board' s open session minutes indicate, and a\n\nvideo recording of the open session portion of the meeting confirm, that at 11: 32 a.m., Board\nmember Elliott made a motion to enter closed session pursuant to sections 2( c)( 2), 2( c)( 11), and\n\n2( c)( 21) of OMA,' which was seconded by Board member Larsen and approved by a voice vote.\nYou complain that the Board's closed session minutes indicate that at 11: 35 a.m., Board member\n\nZay made a motion to enter closed session pursuant to section 2( c)( 11), which was seconded by\nBoard member Chaplin. You also allege that the open session minutes indicate that Board\n\nmember Zay made a motion to adjourn closed session, which was seconded by Board member\nChaplin, while the closed session minutes indicate that the motion to adjourn was made by Board\nmember Elliot and seconded by Board member Renehan.\nSection 2. 06( a) of OMA ( 5 ILCS 120/ 2. 06( a) ( West 2018)) provides: \"\n\nAll public\n\nbodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim\n\nrecord of all their closed meetings in the form of an audio or video recording.\" The Board' s open\nsession minutes are the official record of what transpired in open session.\n\nAlthough information\n\nin closed session minutes about the open session portion of a meeting ideally will be consistent\nwith open session minutes, there is no basis for this office to conclude that the Board violated\n\nOMA because its closed session minutes do not accurately document the open session portion of\n5 ILCS 120/ 2( c)( 2), ( c)( 11), ( c)( 21) ( West 2018).\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fDecember\n\n19, 2019\n\nPage 2\n\nthe meeting. Further, de minimis inconsistencies in minutes concerning the precise time a public\nbody entered closed session and who made motions to enter or adjourn closed session do not\ndeprive the public of any meaningful information concerning the resulting vote or the substance\nof closed session discussions.\n\nYour Request for Review also alleged that the closed session minutes may be\ninadequate because they do not reflect a discussion of collective bargaining even though the\nBoard cited the section 2( c)( 2) exception for \"[ c] ollective negotiating matters between the public\n\nbody and its employees\nsession.\n\nor\n\ntheir representatives[ ]\"\n\nas one of its three bases for entering closed\n\nSection 2a of OMA ( 5 ILCS 120/ 2a ( West 2018)) provides: \"\n\nThe vote of each member\n\non the question of holding a meeting closed to the public and a citation to the specific exception\n\ncontained in Section 2 of this Act which authorizes the closing of the meeting to the public shall\nbe publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of\nthe meeting.\" No provision of OMA, however, requires a public body to proceed to discuss in\nclosed session all topics that the public body anticipated discussing at the time it voted to enter\nclosed session.\n\nYour allegation that the Board' s minutes failed to provide an adequate summary\n\nof closed session deliberations2 is speculative and does not provide facts supporting that\nallegation as required by section 3. 5( a) of OMA. Accordingly, this office has determined that no\nfurther action is warranted in this matter.\n\nThis file is closed. If you have questions, you may contact me at ( 312) 814- 6756.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n61021 ono fi war county\ncc:\n\nThe Honorable Dan Cronin\nChairman\n\nDuPage County Board\n421 North County Farm Road\nWheaton, Illinois 60187\nchairman@dupageco. org\n\nSection 2. 06( a)( 3) of OMA ( 5 ILCS 120/ 2. 06( a)( 3) ( West 2018)) requires that meeting minutes\ninclude \" a summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken.\"\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"County board minutes of closed-session motions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61021/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nDecember\n\n19, 2019\n\nVia electronic mail\n\nRE: OMA Request for Review — 2019 PAC 61021\nDear\n\nThis determination is issued pursuant to section 3. 5(a) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(a) (West 2018)).\n\nOn December 14, 2019, this office received your Request for Review alleging that\nthe open session minutes and closed session minutes of the DuPage County Board's April 23,\n2019, meeting are inconsistent. You state that the Board's open session minutes indicate, and a\n\nvideo recording of the open session portion of the meeting confirm, that at 11: 32 a.m., Board\nmember Elliott made a motion to enter closed session pursuant to sections 2(c)(2), 2(c)(11), and\n\n2(c)(21) of OMA,' which was seconded by Board member Larsen and approved by a voice vote.\nYou complain that the Board's closed session minutes indicate that at 11: 35 a.m., Board member\n\nZay made a motion to enter closed session pursuant to section 2(c)(11), which was seconded by\nBoard member Chaplin. You also allege that the open session minutes indicate that Board\n\nmember Zay made a motion to adjourn closed session, which was seconded by Board member\nChaplin, while the closed session minutes indicate that the motion to adjourn was made by Board\nmember Elliot and seconded by Board member Renehan.\nSection 2. 06(a) of OMA (5 ILCS 120/ 2. 06(a) (West 2018)) provides: \"\n\nAll public\n\nbodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim\n\nrecord of all their closed meetings in the form of an audio or video recording.\" The Board's open\nsession minutes are the official record of what transpired in open session.\n\nAlthough information\n\nin closed session minutes about the open session portion of a meeting ideally will be consistent\nwith open session minutes, there is no basis for this office to conclude that the Board violated\n\nOMA because its closed session minutes do not accurately document the open session portion of\n5 ILCS 120/ 2(c)(2), (c)(11), (c)(21) (West 2018).\n\nthe meeting. Further, de minimis inconsistencies in minutes concerning the precise time a public\nbody entered closed session and who made motions to enter or adjourn closed session do not\ndeprive the public of any meaningful information concerning the resulting vote or the substance\nof closed session discussions.\n\nYour Request for Review also alleged that the closed session minutes may be\ninadequate because they do not reflect a discussion of collective bargaining even though the\nBoard cited the section 2(c)(2) exception for \"[ c] ollective negotiating matters between the public\n\nbody and its employees\nsession.\n\nor\n\ntheir representatives[ ]\"\n\nas one of its three bases for entering closed\n\nSection 2a of OMA (5 ILCS 120/ 2a (West 2018)) provides: \"\n\nThe vote of each member\n\non the question of holding a meeting closed to the public and a citation to the specific exception\n\ncontained in Section 2 of this Act which authorizes the closing of the meeting to the public shall\nbe publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of\nthe meeting.\" No provision of OMA, however, requires a public body to proceed to discuss in\nclosed session all topics that the public body anticipated discussing at the time it voted to enter\nclosed session.\n\nYour allegation that the Board's minutes failed to provide an adequate summary\n\nof closed session deliberations2 is speculative and does not provide facts supporting that\nallegation as required by section 3. 5(a) of OMA. Accordingly, this office has determined that no\nfurther action is warranted in this matter.\n\nThis file is closed. If you have questions, you may contact me at (312) 814- 6756.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n61021 ono fi war county\ncc:\n\nThe Honorable Dan Cronin\nChairman\n\nDuPage County Board\n421 North County Farm Road\nWheaton, Illinois 60187\nchairman@dupageco. org\n\nSection 2. 06(a)(3) of OMA (5 ILCS 120/ 2. 06(a)(3) (West 2018)) requires that meeting minutes\ninclude \" a summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken.\""}
{"id":1325,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-12-17","case_number":null,"request_numbers":["61108"],"title":"ACT Board status analyzed for unagendaed Executive Director vote","filename":"61108, issued December 17, 2024.pdf","rel_path":null,"word_count":2451,"summary":"The requester alleged that the Agency for Community Transit (ACT) Board violated the Open Meetings Act by voting to appoint an Executive Director without including the action on the meeting agenda. The PAC determined that the Board failed to provide proper notice of the final action taken during the meeting.","plain_summary":"A requester alleged that a transit agency board voted to fill its executive-director position without advance agenda notice. The PAC determined that the agency was a subsidiary body of a public transit district and therefore subject to OMA; the Board violated OMA by taking final action without identifying the general subject matter of the vote in the agenda. A later open-meeting re-vote meant no remedy was necessary, but the Board was asked to comply with OMA going forward.","holding":"","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on a matter not included in the posted meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Agency for Community Transit (ACT) Board","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board voted to appoint a new Executive Director without providing advance notice of the vote on the meeting agenda.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/61108, issued December 17, 2024.pdf","sha256":"4bea0d0637759c31d84398a2bdc7dba8677fab771eeedd341b8a0b36a4d6c4a4","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","open meetings act","final action"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nDecember 17, 2024\n\nVia electronic mail\n\nMr. SJ Morrison\nAgency for Community Transit\nOne Transit Way\nGranite City, Illinois 62040\nRE: OMA Request for Review - 2019 PAC 61108\nDear - and Mr. Morrison:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nOn December 23, 2019,\nsubmitted the above-referenced\nRequest for Review alleging that the Board of Directors for the Agency for Community Transit\n(ACT Board) violated OMA at its December 17, 2019, meeting by voting to fill the position of\nExecutive Director for the Agency for Community Transit (ACT) without providing advance\nnotice of that vote in the meeting agenda. At this meeting,\nstated that the current\nExecutive Director, Jerry Kane,resigned and the Board voted on his replacement.\nprovided this office with a copy of the Board's December 17, 2019, meeting agenda and a press\nrelease announcing Mr. Kane's resign ation dated December 20, 2019.\nOn January 22,2020,this office forwarded a copy of the Request for Review to\nthe ACT Board and asked it to provide copies of the agenda and minutes of its December 17,\n2019, meeting and a written response to the allegation that the ACT Board voted to fill the\nposition of Board Director without providing the public with advance notice of that action. On\nFebruary 3, 2020, counsel for the ACT Board provided a written response and copies of the\nagenda and draft minutes for the December 17,2019, meeting. In its written response, the ACT\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAnomeyGeneral.gov\n\n\fMr. SJ Morrison\nDecember 17, 2024\nPage 2\nBoard asserted that it is not a \"public body\" subject to the requirements of OMA and is instead a\nnot-for-profit corporation that contracts with Madison County Transit District (MCT District) to\nprovide transit services; the Board provided a copy of its Certificate of Good Standing, dated\nFebruary 3, 2020, from the Illinois Secretary of State's Office.\nOn February 4, 2020, this office forwarded a c�CT Board's response to\nhe replied on February 9, 2020. In particular,--asserted that the ACT\nBoard is a public body because it is a subsidiary or an advisory body to the District. On\nFebruary 26, 2020, an Assistant Attorney General (AAG) in the Public Access Bureau contacted\nthe ACT Board and asked if it could provide copies of ACT's articles of incorporation and the\ncontractual agreement it signed with the District. Later that day, counsel for the Board\nresponded by providing our office with these materials and disputing\nclaim that\nthe Board constituted a subsidiary body.\nOn May 26, 2020, counsel for the ACT Board advised this office that the Board\n\"had another meeting last Friday, May 22, 2020, during which it reaffirmed the prior action\ntaken on December 17, 2019, to hire Steven J. Morrison as Executive Director.\" 1 Although\ncounsel asserted that the ACT Board is not a \"public body\" for purposes of OMA, the Board\nasserted that it had nonetheless resolved\nconcerns by re-voting on the matter at a\nsubsequent open meeting after providing advance notice.\nDETERMINATION\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (2022).\nAs background, ACT's articles of incorporation reflect that it was incorporated in\n1984 as a not-for-profit corporation \"to plan, coordinate, schedule, develop, and provide\ntransportation for the residents of Madison County, Illinois.\" 2 The contract shows that in 2005,\nthe District entered into a services agreement to provide:\n[A] professionally managed-full service, public fixed-route transit\noperation for the benefit of the residents of Madison County. Such\noperation shall include but are not limited, the following: operator\ntraining; accident investigation; scheduling of personnel and\nE-mailfrom Andrew Carruthers to Christina Lucente-McCullough, Assistant Attorney General,\nPublic Access Bureau (May 26, 2020).\n1\n\nArticles of Incorporation under the General Not For Profit Corporation Ac t, Agency for\nCommunity Transit (October 31, 1984).\n2\n\nOffice of the Illinois Attorney General\n\n\fMr. SJ Morrison\nDecember 1 7, 2024\nPage 3\nservices; service evaluation; customer information; service\nsupervisions; American with Disabilities Act service functions; *\n* * overall operation of the transportation system. [31\nAccording to this agreement, the ACT Board's Executive Director, Jerry Kane, would continue\nto serve as the Managing Director of the MCT District. The agreement also stipulates that the\nMCT District \"agrees to pay to the AGENCY the sum of $500,000.00 per year as and for\npayment of the General Management and Administrative services stated herein. \" 4\nWhether Agency for Community Transit is a Subsidiary or Advisory Body\nThe requirements of OMA apply only to \"public bodies.\" (5 ILCS 120/1 (West\n2022)). Section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines a \"public body\" as:\n[A]11 legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nasserted that the ACT Board is a subsidiazy\nIn his reply to this office,\nand an advisory body of the MCT District. Courts have considered four primary factors in\ndetermining whether an entity is a \"subsidiary body\" of a public body: (1 ) the extent to which the\nentity has a legal existence independent of government resolution, (2) the degree of government\ncontrol exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the\nnature of the functions performed by the entity.\" Better Government Ass'n v. Illinois High\nSchool Ass'n, 201 7 IL 121124, ,-i 26. \"[N]o single factor is determinative or conclusive, but as\nthe definition indicates, the key distinguishing factors are government creation and control.\"\nBetter Government Ass'n, 2017 IL 121124, ,-i 26.\nIn Hopfv. Topcorp, 256 Ill. App. 3d 887, 889 (1993), the Illinois Appellate Court\nconsidered whether a corporation that was created by the City of Evanston in conjunction with\nNorthwestern University to develop a research park was subject to the requirements of OMA .\nAgreement for Services between Agency for Community Transit and Madison County Mass\nTransit District, Section 2(A) (June 7, 2005).\n3\n\nAgreement for Services between Agency for Community Transit and Madison County Mass\nTransit District, Section 2(F) (June 7, 2005).\n4\n\nOffice of the Illinois Attorney General\n\n\fMr. SJ Morrison\nDecember 17, 2024\nPage 4\nThe corporation, Topcorp, Inc., was created to acquire the land while its subsidiary, Research\nPark, Inc. (RPI), was created to operate, market, and promote interest in the park. Hopf, 256 Ill.\nApp. 3d at 889-90. The City and Northwestern equally shared the operating costs of Topcorp\nand RPI and each guaranteed half of a $300,000 loan obtained by RPI. Hopf, 256 Ill. App. 3d at\n891. The City and Northwestern both also appointed members to a board of directors for each\nentity; the City appointed its mayor, city manager and an alderman to the Topcorp board. Hopf,\n256 Ill. App. 3d at 890. The court emphasized that although the City and Northwestern\ninfluenced the corporations through their appointments to the boards, \"the functions of the two\ncorporations remain proprietary[ ]\" and that \"neither the City nor Northwestern can control the\ntwo corporations.\" (Emphasis in original.) Hopf, 256 Ill. App. 3d at 894. Further, the City's\nfunding of half of each corporate entity's operations \"in and of itself, does not render the\ncorporations public bodies.\" Hopf, 256 Ill. App. 3d at 897. Therefore, the court concluded that\nTopcorp and RPI were not subsidiary bodies of the City, and were not subject to the\nrequirements of OMA.\nApplying the first factor listed above, ACT has an independent legal existence as\na not-for-profit corporation registered with the Illinois Secretary of State's Office.\nWith respect to the second factor, the degree of government control, ACT is\ngoverned by a Board of Directors, which currently consists of six members. 5 According to the\nDecember 20, 2019 , press release, Jerry Kane served as Executive Director for ACT as well as\nthe Managing Director of the MCT District. At the December 1 7, 2019, Board meeting, Mr.\nKane resigned as Executive Director of ACT and was replaced by Mr. SJ Morrison, who is also\nthe Managing Director of the MCT District.\nIn its response, counsel for the ACT Board pointed out that the services\nagreement specifies that ACT is an independent contractor and has the contractual right to\nsubcontract out its services without permission or consultation with the MCT District. The\nAgreement for Services stipulates that:\nIt is acknowledged and understood by and between the\nparties that the DISTRICT is a unit of local government which has\ncontracted for a certain portion of it services to be rendered by the\nAGENCY which is a not-for-profit corporation. The AGENCY, as\nan independent contractor, shall be fully responsible for the\ninternal performance of [its] duties * * * At all time, the employees\n\nAgency for Community Transit, Agency for Community Transit Board of Directors,\nhttps://actinfo.orglorganization (last visited November 20, 2024).\n5\n\nOffice of the Illinois Attorney General\n\n\fMr. SJ Morrison\nDecember 1 7, 2024\nPage 5\nof the AGENCY shall be supervised by and under the direct\ncontrol of the AGENCY. [6l\nACT's by-laws, however, state that the MCT District's Board of Trustees (MCT Board) appoints\nDirectors to the ACT Board to serve seven-year terms, and is responsible for filling any\nvacancies on the ACT Board.7 Additionally, the by-laws stipulate that the \"Managing Director\nof [MCT] shall serve as the Secretary/Treasurer of [ACT] * * * As Treasurer, the\nSecretary/Treasurer will review the expenditure of all funds.\" 8\nThe third factor considers the degree of public funding received by the entity. As\nstated above, ACT is publicly funded, receiving $500,000 annually from the MCT District per\nthe terms of the services agreement. Finally, under the fourth factor, the nature of the functions\nperformed by the entity, counsel for the ACT Board explained that ACT \"is a contractual vendor\nfor a unit of government * * * it maintains a website given the transportation services that it\nprovides as third-party contractor, including information about its Board meetings.\" 9 ACT's by­\nlaws state that ACT's sole purpose is \"to cooperate with and assist the [MCT] with the fulfillment\nof its legislative duty to provide for the transportation needs of the County of Madison.\" 10\nSpecifically, ACT provides \"transportation related services for residents, business, governments,\nand non-profits[,]\" including \"services to elderly, disabled, and low income individuals for a\nnominal fare.\"11 The State Constitution recognizes that \"[p]ublic transportation is an essential\npublic purpose for which public funds may be expended. The General Assembly by law may\nprovide for, aid, and assist public transportation, including the granting of public funds or credit\nto any corporation or public authority authorized to provide public transportation within the\nState.\" (Emphasis added.) Ill. Const. 1970, art. XIII, § 7.\nHaving reviewed the information submitted by the parties and in light of the\nrelevant factors, this office concludes that ACT is a subsidiary body of the MCT District, and the\nACT Board is a \"public body\" subject to the requirements of OMA. Although ACT has an\nindependent legal existence as a not-for-profit corporation, it is apparent that ACT's sole purpose\nAgreement for Services between Agency for Community Transit and Madison County Mass\nTransit District,Section 3 (June 7, 2005).\n6\n\n7\n\nBylaws,Agency for CommunityTransit (ACT),Articlell,§ 3 (last amended August 18, 2022).\n\n8\n\nBylaws,Agency for CommunityTransit (ACT),Article III,§ 6 (last amended August 18, 2022).\n\nE-mail from Andrew K. Carruthers, Hepler Broom, LLC., to Christina Lucente-McCullough,\nAssistant Attorney General, Public Access Bureau (February 3, 2020).\n9\n\nBylaws,Agency for Community Transit (ACT),Article I(B) (last amended on August 18,2022).\n\n10\n11\n\n(2022), at 2.\n\nAgency for Community Transit,Form 990Retum of Organization Exempt from Income Tax\n\nOffice of the Illinois Attorney General\n\n\fMr. SJ Morrison\nDecember 17, 2024\nPage 6\nis to provide public transportation services for the MCT District. As noted above, the State\nConstitution provides that \"[p]ublic transportation is an essential public purpose [.]\" Moreover, it\nis apparent that MCT exercises a sign ificant degree of control over ACT's day-to-d ay operations.\nIn his role as the MCT District Managing Director, Mr. Kane served as the Board's Executive\nDirector and ACT's Secretary/Treasurer. As stated in the by-laws, ACT's Secretary/Treasurer is\nresponsible for reviewing all financial expenditures. In addition, the MCT Board appoints the\nmembers of the ACT Board. These factors outweigh the operating agreement design ating ACT\nas an independent contractor and the absence of any reference to the MCT District in the Board's\nArticles of Incorporation. The public nature of the function provided by ACT and the degree of\ncontrol exercised by the MCT District and MCT Board are readily distinguishable from the\ncircumstances in Hopf\nAccordingly, this office concludes that the ACT Board is a \"public body\" subject\nto the requirements of OMA, and therefore, it violated OMA by taking final action at its\nDecember 17, 2019, without providing advance notice in the meeting agenda. Although there is\nno remedy necessary given the ACT's Board subsequent action at its May 22, 2020, meeting, this\noffice requests that the ACT Board adhere to the requirements of OMA at its future meetings,\nincluding the requirements to post a notice and agenda of its upcoming meetings as required by\nsection 2.02 of OMA (5 ILCS 120/2.02 (West 2022)), to provide an opportunity for the public to\naddress the ACT Board as required by section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West\n2022)), and for its members to take the electronic OMA training, as required by section 1.05(b)\nof OMA (5 ILCS 120/1.05(b) (West 2022)).\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n61108 o 202 notice improper npo\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Board vote to appoint an executive director without agenda notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A citizen alleged that the Board of Directors for the Agency for Community Transit (ACT Board) violated the Open Meetings Act at its December 17, 2019, meeting by voting to fill the position of Executive Director without providing advance notice of that vote in the meeting agenda. The Illinois Attorney General's office reviewed the request and analyzed whether the ACT Board is a subsidiary or advisory body of a public body, considering factors such as its independent legal existence, government control, public funding, and the nature of its functions. The determination does not state whether a violation occurred or whether the case was closed; it only discusses the legal analysis of the board's status under the Act.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61108/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nDecember 17, 2024\n\nVia electronic mail\n\nMr. SJ Morrison\nAgency for Community Transit\nOne Transit Way\nGranite City, Illinois 62040\nRE: OMA Request for Review - 2019 PAC 61108\nDear - and Mr. Morrison:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nOn December 23, 2019,\nsubmitted the above-referenced\nRequest for Review alleging that the Board of Directors for the Agency for Community Transit\n(ACT Board) violated OMA at its December 17, 2019, meeting by voting to fill the position of\nExecutive Director for the Agency for Community Transit (ACT) without providing advance\nnotice of that vote in the meeting agenda. At this meeting,\nstated that the current\nExecutive Director, Jerry Kane,resigned and the Board voted on his replacement.\nprovided this office with a copy of the Board's December 17, 2019, meeting agenda and a press\nrelease announcing Mr. Kane's resign ation dated December 20, 2019.\nOn January 22,2020,this office forwarded a copy of the Request for Review to\nthe ACT Board and asked it to provide copies of the agenda and minutes of its December 17,\n2019, meeting and a written response to the allegation that the ACT Board voted to fill the\nposition of Board Director without providing the public with advance notice of that action. On\nFebruary 3, 2020, counsel for the ACT Board provided a written response and copies of the\nagenda and draft minutes for the December 17,2019, meeting. In its written response, the ACT\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nBoard asserted that it is not a \"public body\" subject to the requirements of OMA and is instead a\nnot-for-profit corporation that contracts with Madison County Transit District (MCT District) to\nprovide transit services; the Board provided a copy of its Certificate of Good Standing, dated\nFebruary 3, 2020, from the Illinois Secretary of State's Office.\nOn February 4, 2020, this office forwarded a c�CT Board's response to\nhe replied on February 9, 2020. In particular,--asserted that the ACT\nBoard is a public body because it is a subsidiary or an advisory body to the District. On\nFebruary 26, 2020, an Assistant Attorney General (AAG) in the Public Access Bureau contacted\nthe ACT Board and asked if it could provide copies of ACT's articles of incorporation and the\ncontractual agreement it signed with the District. Later that day, counsel for the Board\nresponded by providing our office with these materials and disputing\nclaim that\nthe Board constituted a subsidiary body.\nOn May 26, 2020, counsel for the ACT Board advised this office that the Board\n\"had another meeting last Friday, May 22, 2020, during which it reaffirmed the prior action\ntaken on December 17, 2019, to hire Steven J. Morrison as Executive Director.\" 1 Although\ncounsel asserted that the ACT Board is not a \"public body\" for purposes of OMA, the Board\nasserted that it had nonetheless resolved\nconcerns by re-voting on the matter at a\nsubsequent open meeting after providing advance notice.\nDETERMINATION\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (2022).\nAs background, ACT's articles of incorporation reflect that it was incorporated in\n1984 as a not-for-profit corporation \"to plan, coordinate, schedule, develop, and provide\ntransportation for the residents of Madison County, Illinois.\" 2 The contract shows that in 2005,\nthe District entered into a services agreement to provide:\n[A] professionally managed-full service, public fixed-route transit\noperation for the benefit of the residents of Madison County. Such\noperation shall include but are not limited, the following: operator\ntraining; accident investigation; scheduling of personnel and\nE-mailfrom Andrew Carruthers to Christina Lucente-McCullough, Assistant Attorney General,\nPublic Access Bureau (May 26, 2020).\n1\n\nArticles of Incorporation under the General Not For Profit Corporation Ac t, Agency for\nCommunity Transit (October 31, 1984).\n2\n\nOffice of the Illinois Attorney General\n\nMr. SJ Morrison\nDecember 1 7, 2024\nPage 3\nservices; service evaluation; customer information; service\nsupervisions; American with Disabilities Act service functions; *\n* * overall operation of the transportation system. [31\nAccording to this agreement, the ACT Board's Executive Director, Jerry Kane, would continue\nto serve as the Managing Director of the MCT District. The agreement also stipulates that the\nMCT District \"agrees to pay to the AGENCY the sum of $500,000.00 per year as and for\npayment of the General Management and Administrative services stated herein. \" 4\nWhether Agency for Community Transit is a Subsidiary or Advisory Body\nThe requirements of OMA apply only to \"public bodies.\" (5 ILCS 120/1 (West\n2022)). Section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines a \"public body\" as:\n[A]11 legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but not limited\nto committees and subcommittees which are supported in whole or\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nasserted that the ACT Board is a subsidiazy\nIn his reply to this office,\nand an advisory body of the MCT District. Courts have considered four primary factors in\ndetermining whether an entity is a \"subsidiary body\" of a public body: (1) the extent to which the\nentity has a legal existence independent of government resolution, (2) the degree of government\ncontrol exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the\nnature of the functions performed by the entity.\" Better Government Ass'n v. Illinois High\nSchool Ass'n, 201 7 IL 121124,,-i 26. \"[N]o single factor is determinative or conclusive, but as\nthe definition indicates, the key distinguishing factors are government creation and control.\"\nBetter Government Ass'n, 2017 IL 121124,,-i 26.\nIn Hopfv. Topcorp, 256 Ill. App. 3d 887, 889 (1993), the Illinois Appellate Court\nconsidered whether a corporation that was created by the City of Evanston in conjunction with\nNorthwestern University to develop a research park was subject to the requirements of OMA.\nAgreement for Services between Agency for Community Transit and Madison County Mass\nTransit District, Section 2(A) (June 7, 2005).\n\nThe corporation, Topcorp, Inc., was created to acquire the land while its subsidiary, Research\nPark, Inc. (RPI), was created to operate, market, and promote interest in the park. Hopf, 256 Ill.\nApp. 3d at 889-90. The City and Northwestern equally shared the operating costs of Topcorp\nand RPI and each guaranteed half of a $300,000 loan obtained by RPI. Hopf, 256 Ill. App. 3d at\n891. The City and Northwestern both also appointed members to a board of directors for each\nentity; the City appointed its mayor, city manager and an alderman to the Topcorp board. Hopf,\n256 Ill. App. 3d at 890. The court emphasized that although the City and Northwestern\ninfluenced the corporations through their appointments to the boards, \"the functions of the two\ncorporations remain proprietary[ ]\" and that \"neither the City nor Northwestern can control the\ntwo corporations.\" (Emphasis in original.) Hopf, 256 Ill. App. 3d at 894. Further, the City's\nfunding of half of each corporate entity's operations \"in and of itself, does not render the\ncorporations public bodies.\" Hopf, 256 Ill. App. 3d at 897. Therefore, the court concluded that\nTopcorp and RPI were not subsidiary bodies of the City, and were not subject to the\nrequirements of OMA.\nApplying the first factor listed above, ACT has an independent legal existence as\na not-for-profit corporation registered with the Illinois Secretary of State's Office.\nWith respect to the second factor, the degree of government control, ACT is\ngoverned by a Board of Directors, which currently consists of six members. 5 According to the\nDecember 20, 2019, press release, Jerry Kane served as Executive Director for ACT as well as\nthe Managing Director of the MCT District. At the December 1 7, 2019, Board meeting, Mr.\nKane resigned as Executive Director of ACT and was replaced by Mr. SJ Morrison, who is also\nthe Managing Director of the MCT District.\nIn its response, counsel for the ACT Board pointed out that the services\nagreement specifies that ACT is an independent contractor and has the contractual right to\nsubcontract out its services without permission or consultation with the MCT District. The\nAgreement for Services stipulates that:\nIt is acknowledged and understood by and between the\nparties that the DISTRICT is a unit of local government which has\ncontracted for a certain portion of it services to be rendered by the\nAGENCY which is a not-for-profit corporation. The AGENCY, as\nan independent contractor, shall be fully responsible for the\ninternal performance of [its] duties * * * At all time, the employees\n\nAgency for Community Transit, Agency for Community Transit Board of Directors,\nhttps://actinfo.orglorganization (last visited November 20, 2024).\n5\n\nOffice of the Illinois Attorney General\n\nMr. SJ Morrison\nDecember 1 7, 2024\nPage 5\nof the AGENCY shall be supervised by and under the direct\ncontrol of the AGENCY. [6l\nACT's by-laws, however, state that the MCT District's Board of Trustees (MCT Board) appoints\nDirectors to the ACT Board to serve seven-year terms, and is responsible for filling any\nvacancies on the ACT Board.7 Additionally, the by-laws stipulate that the \"Managing Director\nof [MCT] shall serve as the Secretary/Treasurer of [ACT] * * * As Treasurer, the\nSecretary/Treasurer will review the expenditure of all funds.\" 8\nThe third factor considers the degree of public funding received by the entity. As\nstated above, ACT is publicly funded, receiving $500,000 annually from the MCT District per\nthe terms of the services agreement. Finally, under the fourth factor, the nature of the functions\nperformed by the entity, counsel for the ACT Board explained that ACT \"is a contractual vendor\nfor a unit of government * * * it maintains a website given the transportation services that it\nprovides as third-party contractor, including information about its Board meetings.\" 9 ACT's by­\nlaws state that ACT's sole purpose is \"to cooperate with and assist the [MCT] with the fulfillment\nof its legislative duty to provide for the transportation needs of the County of Madison.\" 10\nSpecifically, ACT provides \"transportation related services for residents, business, governments,\nand non-profits[,]\" including \"services to elderly, disabled, and low income individuals for a\nnominal fare.\"11 The State Constitution recognizes that \"[p]ublic transportation is an essential\npublic purpose for which public funds may be expended. The General Assembly by law may\nprovide for, aid, and assist public transportation, including the granting of public funds or credit\nto any corporation or public authority authorized to provide public transportation within the\nState.\" (Emphasis added.) Ill. Const. 1970, art. XIII, § 7.\nHaving reviewed the information submitted by the parties and in light of the\nrelevant factors, this office concludes that ACT is a subsidiary body of the MCT District, and the\nACT Board is a \"public body\" subject to the requirements of OMA. Although ACT has an\nindependent legal existence as a not-for-profit corporation, it is apparent that ACT's sole purpose\nAgreement for Services between Agency for Community Transit and Madison County Mass\nTransit District,Section 3 (June 7, 2005).\n6\n\n7\n\nBylaws,Agency for CommunityTransit (ACT),Articlell,§ 3 (last amended August 18, 2022).\n\n8\n\nBylaws,Agency for CommunityTransit (ACT),Article III,§ 6 (last amended August 18, 2022).\n\nE-mail from Andrew K. Carruthers, Hepler Broom, LLC., to Christina Lucente-McCullough,\nAssistant Attorney General, Public Access Bureau (February 3, 2020).\n9\n\nBylaws,Agency for Community Transit (ACT),Article I(B) (last amended on August 18,2022).\n\nis to provide public transportation services for the MCT District. As noted above, the State\nConstitution provides that \"[p]ublic transportation is an essential public purpose [.]\" Moreover, it\nis apparent that MCT exercises a sign ificant degree of control over ACT's day-to-d ay operations.\nIn his role as the MCT District Managing Director, Mr. Kane served as the Board's Executive\nDirector and ACT's Secretary/Treasurer. As stated in the by-laws, ACT's Secretary/Treasurer is\nresponsible for reviewing all financial expenditures. In addition, the MCT Board appoints the\nmembers of the ACT Board. These factors outweigh the operating agreement design ating ACT\nas an independent contractor and the absence of any reference to the MCT District in the Board's\nArticles of Incorporation. The public nature of the function provided by ACT and the degree of\ncontrol exercised by the MCT District and MCT Board are readily distinguishable from the\ncircumstances in Hopf\nAccordingly, this office concludes that the ACT Board is a \"public body\" subject\nto the requirements of OMA, and therefore, it violated OMA by taking final action at its\nDecember 17, 2019, without providing advance notice in the meeting agenda. Although there is\nno remedy necessary given the ACT's Board subsequent action at its May 22, 2020, meeting, this\noffice requests that the ACT Board adhere to the requirements of OMA at its future meetings,\nincluding the requirements to post a notice and agenda of its upcoming meetings as required by\nsection 2.02 of OMA (5 ILCS 120/2.02 (West 2022)), to provide an opportunity for the public to\naddress the ACT Board as required by section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West\n2022)), and for its members to take the electronic OMA training, as required by section 1.05(b)\nof OMA (5 ILCS 120/1.05(b) (West 2022)).\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n61108 o 202 notice improper npo\n\nOffice of the Illinois Attorney General"}
{"id":1326,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-01-12","case_number":null,"request_numbers":["61109"],"title":"Edgar County Housing Authority Board violated OMA by hiring interim director not on agenda","filename":"61109, issued January 12, 2021.pdf","rel_path":null,"word_count":1995,"summary":"A requester alleged the Edgar County Housing Authority Board failed to provide adequate agenda notice for final actions taken during a November 20, 2019, meeting. The PAC determined that while the notice regarding the executive director's dismissal was sufficient, the notice regarding the appointment of an interim executive director was inadequate.","plain_summary":"A former executive director complained that the Housing Authority board fired her and hired a replacement without properly listing those actions on the meeting agenda. The Attorney General's office agreed that the board failed to give the public proper notice about the hiring of the new interim director. Because the interim director had already left the position by the time the investigation concluded, the PAC closed the matter without requiring further remedial action.","holding":"The Edgar County Housing Authority violated section 2.02(c) of the Open Meetings Act by taking final action to appoint an interim executive director without listing that subject matter on the meeting agenda.","legal_question":"Whether the Edgar County Housing Authority Board of Trustees violated section 2.02(c) of the Open Meetings Act by taking final action on items not sufficiently described on the meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Edgar County Housing Authority Board of Trustees","requesting_party":"Ms. [Name redacted in text]","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The board took final action to appoint an interim executive director without including the item on the meeting agenda.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/61109, issued January 12, 2021.pdf","sha256":"7ca7c2359da518e35a92b70fcffdb89ab98c9d9812a1cf03e0e3600a6b640f93","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","final action","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJanuary 12, 2021\n\nVia electronic mail\n\nVia electronic mai!\nMr. David Wright\nChairperson\n\nEdgar County Housing Authority\nBoard of Trustees\n\n604 East Highland Drive\nParis,\n\nIllinois\n\n61944\n\nedgarhousing@gmail.\n\nRE:\nDear\n\ncom\n\nOMA Request for Review — 2019 PAC 61109\n\nand Mr. Wright:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasonsexplained\n\nbelow, the Public Access\n\nBureau concludes that the agenda for the Edgar County Housing Authority (Authority) Board of\nTrustees' ( Board' s) November 20, 2019, meeting provided sufficient notice concerning the status\nof the Authority' s executive director' s employment but failed to provide adequate notice related\nto the selection of an interim - executive director.\n\nIn her Request for Review\n\nalleged that at its November 20,\n\n2019, meeting the Board took final action to dismiss her from her position as the Authority' s\nexecutive director. The Board also hired Mr. John Hollis, who was the Authority's former executive director, to fill that position, including setting his work hours and rate of pay.\nasserted the Board did not provide sufficient advance notice of those final actions on the\nmeeting agenda.\n\n500 South\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\n601 South\n\nSecond\n\nStreet,\n\nSpringfield,\n\nUniversity Ave., Carbondale,\n\nIllinois\n\n62701 • (\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. David\n\nWright\n\nJanuary 12, 2021\nPage 2\n\nOn January 3, 2020, this office sent a copy of the Request for Review to the\nBoard and asked it to provide a copy of the meeting minutes from the Board' s November 20,\n\n2019, meeting together with a detailed response to the allegations in\n\nRequest for\n\nReview. This office also asked the Board to confirm that the agenda\n\nincluded with\n\nthe Request for Review was the final and approved version of that document.\n\nOn January 21, 2020, this office received the Board' s written answer and the\n\nsupporting materials, which outside counsel submitted on behalf of the Board. Later that day,\nthis office forwarded the Board' s answer to\n\nshe replied on January 27, 2020.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 III. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nSection 2. 02( c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97- 827, effective\n\nJanuary I, 2013, added section 2. 02( c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action.\n\nAnd this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what' s going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. ( Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\n\nThe Public Access Bureau has determined that \" the General Assembly' s use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" See, for\nexample, 111. Att' y Gen. PAC\nReq. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5\n\n\fMr. David Wright\n\nJanuary 12, 2021\nPage 3\n\ndetermining that voting to sign a new city administrator to a five- year contract under the agenda\nitem \" Appointment of the City Administrator\" did not violate section 2. 02( c) of OMA).\nThe agenda for the Board' s November 20, 2019, meeting included an item for\n\nNew Business — Status of Executive Director.\" 1 The minutes for the meeting demonstrate that\nthe Board voted on motions to, \" remove\n\nas Executive Director and to name John\n\nHollis as interim Executive Director to serve until a new Executive Director is hired by the\n\nboard.\" 2 Concerning the interim executive director position, the Board voted to \" set as a short\nterm, part- time ( less than 32 hours per week average) position with no benefits. The hourly\nwage was set at $ 38. 00.\";\n\nThe Public Access Bureau has previously determined that overly generic agenda\nitems pertaining to personnel do not meet the requirements of section 2. 02( c) of OMA. See, for\n\nexample, III. Att'y Gen. PAC Req. Rev. Ltr. 50745, issued January 17, 2018, at 2- 3 ( agenda item\nDiscussion of Personnel Matters ( Possible Action Items)\" did not provide general subject matter\n\nof vote to remove treasurer); III. Att'y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017,\nat 3- 4 ( agenda items. \"Action Regarding Executive Session Issues\" and \" Personnel- Section 2 ( c)\n1)\" did not provide general subject matter of vote to appoint village administrator); 111. Att' y\nGen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25, 2017, at 4- 5 ( agenda item \" Employment\nof Personnel\" did not provide general subject matter of vote to approve administrators' salaries).\n\nThis office has also noted, however, that section 2. 02( c) of OMA generally does not require\nnames to be listed on an agenda in connection with personnel transactions. Further, this office\nhas explained that\n\nto comply with section 2. 02( c), an agenda item for personnel\nactions must at least reference the category or categories of\nemployees at issue, such as teachers, bus drivers, social workers,\n\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\n\nacting upon. III. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\n\nEdgar County Housing Authority, Board of Trustees, Regular Meeting, Agenda Item 9\nNovember\n\n20, 2019).\n\n2Edgar County Housing Authority, Board of Trustees, Regular Meeting, November 20, 2019,\nMinutes 2.\nEdgar\n\nMinutes 2.\n\nCounty Housing Authority Board of Trustees, Regular Meeting, November 20, 2019,\n\n\fMr. David Wright\n\nJanuary 12, 2021\nPage 4\n\nIn its response to this office, the Board argued that the agenda item quoted above\n\nset forth the general subject matter of the personnel actions the Board took during its November\n\n20, 2019, meeting. Specifically, the Board contended the use of the word \" status\" was broad\nenough to provide sufficient notice that the \" status of the Office of Executive Director was being\nevaluated, assessed and could be acted upon. i4 With respect to the Board' s action concerning the\nselection of the interim -executive director, the Board' s response to this office asserted \"[ t] he\n\nappointment of the short- term interim Executive Director and provision for his rate of pay, are all\nconsistent with the agenda topic of the Status of the Executive Director. i5\n\nRequest\n\nfor Review asserted that the agenda items did not provide enough detail concerning the actions\nthe Board took. 6\nThe dictionary can be used as a resource to ascertain the ordinary and popular\nmeaning of words. Banco Popular North America v. Gizynski, 2015 IL App ( 1st) 142871, ¶ 47,\n39 N. E. 3d 205, 213 ( 2015). The Merriam -Webster Dictionary defines the word \" status\" as,\namong\n\nother\n\nthings, \"\n\nthe condition\n\nof a person * * *[,]\"\n\nand a \" state\n\nor condition\n\nwith\n\nrespect\n\ncircumstances.\" 7 This definition signals that the Board intended to consider\n\nto\n\nin her\n\nrole as the Authority' s executive director under the existing circumstances at the time of the\nNovember 20, 2019, meeting. Therefore, the agenda item \" New Business — Status of Executive\nDirectori8 identified the general subject matter of the action to be taken, namely it alerted the\npublic that the Board might consider and vote on\n\ncontinued employment.\n\nsummary on the agenda indicating that the Board might vote to remove\n\nWhile a\n\nfrom that\n\nposition would have better informed the public, that level of detail was not required to be\n\nincluded on the agenda to provide advance notice of the general subject matter of the Board' s\nfinal action.\n\n4Letter from E. Robert Anderson to Shannon Bamaby, Assistant Attorney General, Public Access\nBureau ( January 13, 2020).\n\n5Letter from E. Robert Anderson to Shannon Barnaby, Assistant Attorney General, Public Access\nBureau ( January 13, 2020).\n\nreply to this office alleged that the Board may have held improper meetings prior to\nthe November 20, 2019, meeting to discuss her removal and the appointment of Mr. Hollis. However,\ndid not raise this allegation in her Request for Review, and therefore, it is outside of the scope of this determination.\n\n7MERRIAM- WEBSTER DICTIONARY, https:// www. merriam- webster. com/ dictionary/ status ( last\nvisited\n\nDecember\n\n17, 2020).\n\nEdgar County Housing Authority, Board of Trustees, Regular Meeting, Agenda Item 9\nNovember\n\n20, 2019).\n\n\fMr. David Wright\n\nJanuary 12, 2021\nPage 5\n\nHowever, the Board' s reference to the status of the executive director in this\n\nagenda item was too vague and imprecise to provide any meaningful notice to the public that the\nBoard might take action to appoint a new individual to the Authority' s executive director\nposition. See, for example, III. Att' y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017, at\n\n3- 4 ( agenda items \" Action Regarding Executive Session Issues\" and \" Personnel- Section 2 ( c)\n1)\"\n\ndid not provide general subject matter of vote to appoint village administrator).\n\nA member\n\nof the public reading the agenda in advance of the Board' s November 20, 2019, meeting, would\nnot have had sufficient notice that the Board planned to vote on that appointment. Accordingly,\nthis office concludes that the Board violated section 2. 02( c) of OMA during its November 20,\n\n2019, meeting by voting to appoint Mr. Hollis as the interim -executive director for the Authority\nwithout having listed the general subject matter of that final action on the meeting agenda.\nThe Board' s response to the Request for Review stated that Mr. Hollis was no\n\nlonger the Authority' s executive director as of December 26, 2019. Therefore, although there is\nno remedial action that could rectify this violation, this office reminds the Board that meeting\nagendas must set forth the main elements of all items on which the Board intends to take final\n\naction, and to otherwise comply with all of the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, you may contact me at sbarnaby@atg. state. il. us.\nVery truly yours, ''_ //\n\nAssistant Attorney General\nPublic Access Bureau\n\n61109 0 202c notice proper improper co\n\ncc:\n\nVia electronic mail\nMr. E. Robert Anderson\nAnderson\n\nLaw Offices\n\n1204 North Main Street\nP. O. Box\n\n10\n\nParis, Illinois 61944- 0010\nalo@robandersonlaw.\n\ncom\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Appointment of an interim executive director off-agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61109/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJanuary 12, 2021\n\nVia electronic mail\n\nVia electronic mai!\nMr. David Wright\nChairperson\n\nEdgar County Housing Authority\nBoard of Trustees\n\n604 East Highland Drive\nParis,\n\nIllinois\n\n61944\n\nedgarhousing@gmail.\n\nRE:\nDear\n\ncom\n\nOMA Request for Review — 2019 PAC 61109\n\nand Mr. Wright:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasonsexplained\n\nbelow, the Public Access\n\nBureau concludes that the agenda for the Edgar County Housing Authority (Authority) Board of\nTrustees' (Board's) November 20, 2019, meeting provided sufficient notice concerning the status\nof the Authority's executive director's employment but failed to provide adequate notice related\nto the selection of an interim - executive director.\n\nIn her Request for Review\n\nalleged that at its November 20,\n\n2019, meeting the Board took final action to dismiss her from her position as the Authority's\nexecutive director. The Board also hired Mr. John Hollis, who was the Authority's former executive director, to fill that position, including setting his work hours and rate of pay.\nasserted the Board did not provide sufficient advance notice of those final actions on the\nmeeting agenda.\n\n500 South\n\n217) 782- 1090 • TTY: (877) 844- 5461 •\n\nFax: (217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814- 3000 • TTY: (800) 964- 3013 •\n\nFax: (312) 814- 3806\n\n601 South\n\nSecond\n\nStreet,\n\nOn January 3, 2020, this office sent a copy of the Request for Review to the\nBoard and asked it to provide a copy of the meeting minutes from the Board's November 20,\n\n2019, meeting together with a detailed response to the allegations in\n\nRequest for\n\nReview. This office also asked the Board to confirm that the agenda\n\nincluded with\n\nthe Request for Review was the final and approved version of that document.\n\nOn January 21, 2020, this office received the Board's written answer and the\n\nsupporting materials, which outside counsel submitted on behalf of the Board. Later that day,\nthis office forwarded the Board's answer to\n\nshe replied on January 27, 2020.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 III. App. 3d\n161, 171 (5th Dist. 1989).\n\nSection 2. 02(c) of OMA provides that \"[ a] ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97- 827, effective\n\nJanuary I, 2013, added section 2. 02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\nT] here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action.\n\nAnd this just says that you have to have a *\n\ngeneral notice if you' re going to have and take final action, as\nto generally what's going to be discussed so that —that people\nwho follow their units of local government know what they' re\ngoing to be acting upon. (Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\n\nThe Public Access Bureau has determined that \" the General Assembly's use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" See, for\n\ndetermining that voting to sign a new city administrator to a five- year contract under the agenda\nitem \" Appointment of the City Administrator\" did not violate section 2. 02(c) of OMA).\nThe agenda for the Board's November 20, 2019, meeting included an item for\n\nNew Business — Status of Executive Director.\" 1 The minutes for the meeting demonstrate that\nthe Board voted on motions to, \" remove\n\nas Executive Director and to name John\n\nHollis as interim Executive Director to serve until a new Executive Director is hired by the\n\nboard.\" 2 Concerning the interim executive director position, the Board voted to \" set as a short\nterm, part- time (less than 32 hours per week average) position with no benefits. The hourly\nwage was set at $ 38. 00.\";\n\nThe Public Access Bureau has previously determined that overly generic agenda\nitems pertaining to personnel do not meet the requirements of section 2. 02(c) of OMA. See, for\n\nexample, III. Att'y Gen. PAC Req. Rev. Ltr. 50745, issued January 17, 2018, at 2- 3 (agenda item\nDiscussion of Personnel Matters (Possible Action Items)\" did not provide general subject matter\n\nof vote to remove treasurer); III. Att'y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017,\nat 3- 4 (agenda items. \"Action Regarding Executive Session Issues\" and \" Personnel- Section 2 (c)\n1)\" did not provide general subject matter of vote to appoint village administrator); 111. Att' y\nGen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25, 2017, at 4- 5 (agenda item \" Employment\nof Personnel\" did not provide general subject matter of vote to approve administrators' salaries).\n\nThis office has also noted, however, that section 2. 02(c) of OMA generally does not require\nnames to be listed on an agenda in connection with personnel transactions. Further, this office\nhas explained that\n\nto comply with section 2. 02(c), an agenda item for personnel\nactions must at least reference the category or categories of\nemployees at issue, such as teachers, bus drivers, social workers,\n\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\n\nacting upon. III. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\n\nEdgar County Housing Authority, Board of Trustees, Regular Meeting, Agenda Item 9\nNovember\n\n20, 2019).\n\nIn its response to this office, the Board argued that the agenda item quoted above\n\nset forth the general subject matter of the personnel actions the Board took during its November\n\n20, 2019, meeting. Specifically, the Board contended the use of the word \" status\" was broad\nenough to provide sufficient notice that the \" status of the Office of Executive Director was being\nevaluated, assessed and could be acted upon. i4 With respect to the Board's action concerning the\nselection of the interim -executive director, the Board's response to this office asserted \"[ t] he\n\nappointment of the short- term interim Executive Director and provision for his rate of pay, are all\nconsistent with the agenda topic of the Status of the Executive Director. i5\n\nRequest\n\nfor Review asserted that the agenda items did not provide enough detail concerning the actions\nthe Board took. 6\nThe dictionary can be used as a resource to ascertain the ordinary and popular\nmeaning of words. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47,\n39 N. E. 3d 205, 213 (2015). The Merriam -Webster Dictionary defines the word \" status\" as,\namong\n\nother\n\nthings, \"\n\nthe condition\n\nof a person * * *[,]\"\n\nand a \" state\n\nor condition\n\nwith\n\nrespect\n\ncircumstances.\" 7 This definition signals that the Board intended to consider\n\nto\n\nin her\n\nrole as the Authority's executive director under the existing circumstances at the time of the\nNovember 20, 2019, meeting. Therefore, the agenda item \" New Business — Status of Executive\nDirectori8 identified the general subject matter of the action to be taken, namely it alerted the\npublic that the Board might consider and vote on\n\ncontinued employment.\n\nsummary on the agenda indicating that the Board might vote to remove\n\nWhile a\n\nfrom that\n\nposition would have better informed the public, that level of detail was not required to be\n\nincluded on the agenda to provide advance notice of the general subject matter of the Board's\nfinal action.\n\n4 Letter from E. Robert Anderson to Shannon Bamaby, Assistant Attorney General, Public Access\nBureau (January 13, 2020).\n\n5 Letter from E. Robert Anderson to Shannon Barnaby, Assistant Attorney General, Public Access\nBureau (January 13, 2020).\n\nreply to this office alleged that the Board may have held improper meetings prior to\nthe November 20, 2019, meeting to discuss her removal and the appointment of Mr. Hollis. However,\ndid not raise this allegation in her Request for Review, and therefore, it is outside of the scope of this determination.\n\n7MERRIAM- WEBSTER DICTIONARY, https:// www. merriam- webster. com/ dictionary/ status (last\nvisited\n\nHowever, the Board's reference to the status of the executive director in this\n\nagenda item was too vague and imprecise to provide any meaningful notice to the public that the\nBoard might take action to appoint a new individual to the Authority's executive director\nposition. See, for example, III. Att' y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017, at\n\n3- 4 (agenda items \" Action Regarding Executive Session Issues\" and \" Personnel- Section 2 (c)\n1)\"\n\ndid not provide general subject matter of vote to appoint village administrator).\n\nA member\n\nof the public reading the agenda in advance of the Board's November 20, 2019, meeting, would\nnot have had sufficient notice that the Board planned to vote on that appointment. Accordingly,\nthis office concludes that the Board violated section 2. 02(c) of OMA during its November 20,\n\n2019, meeting by voting to appoint Mr. Hollis as the interim -executive director for the Authority\nwithout having listed the general subject matter of that final action on the meeting agenda.\nThe Board's response to the Request for Review stated that Mr. Hollis was no\n\nlonger the Authority's executive director as of December 26, 2019. Therefore, although there is\nno remedial action that could rectify this violation, this office reminds the Board that meeting\nagendas must set forth the main elements of all items on which the Board intends to take final\n\naction, and to otherwise comply with all of the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, you may contact me at sbarnaby@atg. state. il. us.\nVery truly yours, ''_ //\n\nAssistant Attorney General\nPublic Access Bureau\n\n61109 0 202c notice proper improper co\n\ncc:\n\nVia electronic mail\nMr. E. Robert Anderson\nAnderson\n\nLaw Offices\n\n1204 North Main Street\nP. O. Box\n\n10\n\nParis, Illinois 61944- 0010\nalo@robandersonlaw.\n\ncom"}
{"id":1327,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-02-25","case_number":null,"request_numbers":["61343"],"title":"Village of Capron Board of Trustees violated OMA by holding private conference call meeting","filename":"61343, issued February 25, 2020.pdf","rel_path":null,"word_count":1374,"summary":"A Village Trustee alleged that the Village of Capron Board of Trustees held an improper meeting via conference call without providing public notice or adhering to OMA requirements. The PAC determined that the conference call involving a quorum of the Board constituted a meeting under OMA and that the Board violated the Act by failing to comply with its requirements.","plain_summary":"A Village Trustee reported that the Village Board held a private conference call to discuss public business, which excluded the public and lacked proper notice. The Attorney General's office agreed that this call was an illegal meeting under the Open Meetings Act. The Board was asked to create and release minutes of that meeting to fix the violation.","holding":"The Village of Capron Board of Trustees violated the Open Meetings Act by conducting a meeting via conference call without providing notice or following the Act's procedural requirements.","legal_question":"Whether a conference call involving a quorum of a public body to discuss public business constitutes a 'meeting' under the Open Meetings Act that requires public notice and adherence to the Act's procedures.","disposition":"violation_found","primary_statute":["5 ILCS 120/1.02","5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Capron Board of Trustees","requesting_party":"Linda Wohlfarth","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board held an unannounced conference call involving a quorum of members to discuss public business.","ocr_status":"ok","ocr_quality":96.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/61343, issued February 25, 2020.pdf","sha256":"8e278c346912e35b1fb7f2a60d31e668851e92c4e6350a427bec2a7b5a9c91e1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["conference call","quorum","meeting notice","public business"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 25, 2020\n\nVia electronic mail\nThe Honorable Linda Wohlfarth\n\nVia electronic mail\n\nThe Honorable Conrad Lobinsky\nMayor\nVillage\n\nof Capron\n\n[street address redacted for site publication -- see original PDF]\nmayor@villageofcapron.\n\ncom\n\nRE: OMA Request for Review —2020 PAC 61343\n\nDear Ms. Wohlfarth and Mr. Lobinsky:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that Village of Capron Board of Trustees ( Board) violated OMA by holding a\nmeeting on January 13, 2020, without adhering to the requirements of the Act.\n\nOn January 14, 2020, Capron Village Trustee Linda Wohlfarth submitted the\nabove -referenced Request for Review alleging that on January 13, 2020, the Village' s mayor\narranged a conference call with herself and other Village officials to discuss a comment Ms.\n\nWohlfarth made online alleging an improper use of Village property. Ms. Wohlfarth alleged that\nshe participated in this call and that four voting members of the Board, including herself, took\npart in a forty -minute discussion of public business. She asserted that the entire phone\nconversation was recorded. This office construed the Request for Review as alleging that the\nBoard phone call constituted an improper meeting because the Board did not comply with the\nrequirements\n\nof OMA.\n\nOn February 5, 2020, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to the allegation that the Board violated\n\n500 South Second\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago. Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 •\n601 South University Ave.. Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877)\n\nStreet, Springfield,\n\nIllinois 62701 • (\n\nFax: ( 312) 814- 3806\n6416\n\n\fThe Honorable Linda Wohlfarth\n\nThe Honorable Conrad Lobinsky\nFebruary 25, 2020\nPage 2\n\nOMA by holding a private meeting to discuss public business. In particular, this office asked the\nBoard to identify the Board members who participated in the conference call and describe the\ndiscussion that took place, including the topics of discussion and any actions that were taken.\nThis office also asked the Board to provide copies of notes or minutes, if any, taken during this\n\nconference call as well as any recording of the call for this office' s confidential review. On\nFebruary 11, 2020, counsel for the Board provided an answer and an audio recording of the\nconference call. On February 18, 2020, Ms. Wohlfarth replied to the Board' s response and\n\nprovided this office with copies of the text messages she received from Mayor Lobinsky before\nthe conference call.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 111. App. 3d\n161, 171 ( 5th Dist. 1989).\n\nSection 2( a) of OMA (5 ILCS 120/ 2( a) ( West 2018)) provides that \"[ a] l] meetings\nof public bodies shall be open to the public unless excepted in subsection ( c) and closed in\naccordance with Section 2a.\"\nmeeting\"\n\nSection 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2018)) defines\n\nas:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic means ( such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held\n\nfor the purpose of discussing public business or, for a 5 -member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business ( Emphasis added).\n\nUnder this statutory definition, a \" meeting\" may include conference calls or other\ncommunications by electronic means involving a quorum or majority of a quorum of a public\n\nbody. The Office of the Attorney General has stated that \" whether a gathering falls within the\ndefinition of meeting as used in the Act, would depend upon the peculiar facts in each situation.\"\n\n1974 Ill. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 126. A gathering does not\nconstitute a meeting for purposes of OMA when there is \" no examining or weighing of reasons\nfor or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt\nto reach accord on a specific matter of public business.\" Nabhani v. Coglianese, 552 F. Supp.\n657, 661 ( N. D. III. 1982).\n\n\fThe Honorable Linda Wohlfarth\n\nThe Honorable Conrad Lobinsky\n\nFebruary 25, 2020\nPage 3\n\nThe Board consists of seven members; four members constitute a quorum and\n\nthree members a majority of a quorum. Therefore, if three members of the Board engaged in\ndeliberative discussions of public business during the January 13, 2020 conference call, that call\nwould be subject to all of the requirements of OMA.\nIt is undisputed that the Board did not provide advance notice and an agenda or an\n\nopportunity for the public to attend, or otherwise follow the requirements of OMA in connection\nwith that meeting.\n\nIn its response to this office, counsel for the Board stated:\nI would note that the conference call was conducted in a\n\nrelatively informal manner with no agenda identified, and of\ncourse no motions were made, nor was any action taken by the\nmembers of the [ Board] of the Village of Capron which were on\n\nthe call. The discussion on the call was generally focused on\ncreating a better understanding of the Public Works SOP [ standard\noperating procedure] regarding taking a Village vehicle home, and\nthe concept of Public Works employees being \" on call\" for Village\nemergencies * * *\n\nThe Village acknowledges that this conference\n\ncall could be interpreted as crossing the line regarding the OMA) I\nThis office' s review of the audio recording of the conference call corroborated that\nMayor Lobinsky and the three other voting Board members, including Ms. Wohlfarth,\nparticipated in the January 13, 2020 discussion.\n\nAlthough the conference call was intended to\n\ninformally clear up a misconception about the Public Works Department' s standard operating\nprocedure, the entire thirty- five minute discussion directly concerned various matters of Village\nbusiness. Specifically, the four Board members discussed the use of the Village truck at issue,\nwhy a particular employee would have had Village property at his home after hours, how the\nVillage advertises job postings, hiring of Village employees, and how much the Village spends\non providing employees with health insurance coverage. Because a quorum of the members of\n\nthe Board discussed public business during the January 13, 2020, conference call. without\nproviding advance notice and without following the other requirements of OMA, this office\nconcludes that the Board violated OMA on that date.\n\nTo remedy this violation, this office request that the Board compile and make\n\npublicly available minutes of the January 13, 2020, meeting. This office also cautions the Board\nto consider in advance whether any gatherings, in person or via conference call, could involve\nE- mail from Thomas A. Green, Barrick, Switzer, Long, Balsey & Van Evera. LLP., to Christina\nM. Lucente- McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General\nFebruary 1 I, 2020).\n\n\fhe Honorable Linda Wohlfarth\n\nThe Honorable Conrad Lobinsky\n\nFebruary 25, 2020\nPage 4\n\nthree or more of its members engaging in deliberative discussions of public business, which\nwould be \" meetings\" requiring advance notice and adherence to the other requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.\n\nIf you have any questions, please contact me at\n\n312) 814- 5383 or clucentemccullough@atg. state. il.us. This letter serves to close this file.\nVery truly yours.\n\nCHRISTINA\n\nM. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n61343\n\no\n\n2a meeting\n\nimproper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Unannounced conference call among board members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61343/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 25, 2020\n\nVia electronic mail\nThe Honorable Linda Wohlfarth\n\nVia electronic mail\n\nThe Honorable Conrad Lobinsky\nMayor\nVillage\n\nof Capron\n\n[street address redacted for site publication -- see original PDF]\nmayor@villageofcapron.\n\ncom\n\nRE: OMA Request for Review —2020 PAC 61343\n\nDear Ms. Wohlfarth and Mr. Lobinsky:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that Village of Capron Board of Trustees (Board) violated OMA by holding a\nmeeting on January 13, 2020, without adhering to the requirements of the Act.\n\nOn January 14, 2020, Capron Village Trustee Linda Wohlfarth submitted the\nabove -referenced Request for Review alleging that on January 13, 2020, the Village's mayor\narranged a conference call with herself and other Village officials to discuss a comment Ms.\n\nWohlfarth made online alleging an improper use of Village property. Ms. Wohlfarth alleged that\nshe participated in this call and that four voting members of the Board, including herself, took\npart in a forty -minute discussion of public business. She asserted that the entire phone\nconversation was recorded. This office construed the Request for Review as alleging that the\nBoard phone call constituted an improper meeting because the Board did not comply with the\nrequirements\n\nof OMA.\n\nOn February 5, 2020, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to the allegation that the Board violated\n\n500 South Second\n\n217) 782- 1090 • TTY: (877) 844- 5461 •\n\nFax: (217) 782- 7046\n\n100 West Randolph Street, Chicago. Illinois 60601 • (312) 814- 3000 • TTY: (800) 964- 3013 •\n\nOMA by holding a private meeting to discuss public business. In particular, this office asked the\nBoard to identify the Board members who participated in the conference call and describe the\ndiscussion that took place, including the topics of discussion and any actions that were taken.\nThis office also asked the Board to provide copies of notes or minutes, if any, taken during this\n\nconference call as well as any recording of the call for this office's confidential review. On\nFebruary 11, 2020, counsel for the Board provided an answer and an audio recording of the\nconference call. On February 18, 2020, Ms. Wohlfarth replied to the Board's response and\n\nprovided this office with copies of the text messages she received from Mayor Lobinsky before\nthe conference call.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 111. App. 3d\n161, 171 (5th Dist. 1989).\n\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2018)) provides that \"[ a] l] meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\"\nmeeting\"\n\nSection 1. 02 of OMA (5 ILCS 120/ 1. 02 (West 2018)) defines\n\nas:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic means (such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held\n\nfor the purpose of discussing public business or, for a 5 -member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business (Emphasis added).\n\nUnder this statutory definition, a \" meeting\" may include conference calls or other\ncommunications by electronic means involving a quorum or majority of a quorum of a public\n\nbody. The Office of the Attorney General has stated that \" whether a gathering falls within the\ndefinition of meeting as used in the Act, would depend upon the peculiar facts in each situation.\"\n\n1974 Ill. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 126. A gathering does not\nconstitute a meeting for purposes of OMA when there is \" no examining or weighing of reasons\nfor or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt\nto reach accord on a specific matter of public business.\" Nabhani v. Coglianese, 552 F. Supp.\n\nThe Board consists of seven members; four members constitute a quorum and\n\nthree members a majority of a quorum. Therefore, if three members of the Board engaged in\ndeliberative discussions of public business during the January 13, 2020 conference call, that call\nwould be subject to all of the requirements of OMA.\nIt is undisputed that the Board did not provide advance notice and an agenda or an\n\nopportunity for the public to attend, or otherwise follow the requirements of OMA in connection\nwith that meeting.\n\nIn its response to this office, counsel for the Board stated:\nI would note that the conference call was conducted in a\n\nrelatively informal manner with no agenda identified, and of\ncourse no motions were made, nor was any action taken by the\nmembers of the [ Board] of the Village of Capron which were on\n\nthe call. The discussion on the call was generally focused on\ncreating a better understanding of the Public Works SOP [ standard\noperating procedure] regarding taking a Village vehicle home, and\nthe concept of Public Works employees being \" on call\" for Village\nemergencies * * *\n\nThe Village acknowledges that this conference\n\ncall could be interpreted as crossing the line regarding the OMA) I\nThis office's review of the audio recording of the conference call corroborated that\nMayor Lobinsky and the three other voting Board members, including Ms. Wohlfarth,\nparticipated in the January 13, 2020 discussion.\n\nAlthough the conference call was intended to\n\ninformally clear up a misconception about the Public Works Department's standard operating\nprocedure, the entire thirty- five minute discussion directly concerned various matters of Village\nbusiness. Specifically, the four Board members discussed the use of the Village truck at issue,\nwhy a particular employee would have had Village property at his home after hours, how the\nVillage advertises job postings, hiring of Village employees, and how much the Village spends\non providing employees with health insurance coverage. Because a quorum of the members of\n\nthe Board discussed public business during the January 13, 2020, conference call. without\nproviding advance notice and without following the other requirements of OMA, this office\nconcludes that the Board violated OMA on that date.\n\nTo remedy this violation, this office request that the Board compile and make\n\npublicly available minutes of the January 13, 2020, meeting. This office also cautions the Board\nto consider in advance whether any gatherings, in person or via conference call, could involve\nE- mail from Thomas A. Green, Barrick, Switzer, Long, Balsey & Van Evera. LLP., to Christina\nM. Lucente- McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General\n\nthree or more of its members engaging in deliberative discussions of public business, which\nwould be \" meetings\" requiring advance notice and adherence to the other requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.\n\nIf you have any questions, please contact me at\n\n312) 814- 5383 or clucentemccullough@atg. state. il.us. This letter serves to close this file.\nVery truly yours.\n\nCHRISTINA\n\nM. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n61343\n\no\n\n2a meeting\n\nimproper mun"}
{"id":1328,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-05-14","case_number":null,"request_numbers":["62002"],"title":"Decatur School Board did not violate OMA by using overflow room for crowded meeting","filename":"62002, issued May 14, 2020.pdf","rel_path":null,"word_count":1609,"summary":"A requester alleged that the Decatur Public School District No. 61 Board of Education violated the Open Meetings Act by holding a meeting in a location that was not sufficiently accessible to the public due to capacity issues. The PAC determined that the Board provided adequate seating and access, and therefore did not violate the Act.","plain_summary":"The question was whether the Decatur Public School District No. 61 Board of Education violated section 2.01 of the Open Meetings Act (5 ILCS 120/2.01), which requires meetings to be held at a location convenient and open to the public. The Public Access Bureau held that the Board did not violate OMA because it took reasonable steps to accommodate an unusually large crowd, including nearly doubling seating, reserving accessible seating, and providing an overflow room with a live stream. The reasoning relied on Gerwin v. Livingston County Board's standard that section 2.01 requires 'reasonable accessibility,' not 'absolute accessibility,' and that a public body satisfies the statute if it provides reasonable access under the circumstances, even if some attendees experience minor inconvenience. Because the record showed seating was available for all attendees and speakers from the overflow room were able to address the Board despite a brief delay, no violation was found.","holding":"Section 2.01 of OMA requires only reasonable, not absolute, accessibility of a meeting location, and a public body that takes reasonable steps to accommodate an unusually large crowd does not violate OMA even if some attendees must stand or use an overflow room.","legal_question":"Whether a public body violates the Open Meetings Act by holding a meeting in a room that reaches capacity, provided that alternative viewing areas and seating are made available to the public.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Decatur Public School District No. 61 Board of Education","requesting_party":"Ms. [Name redacted in source]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The accessibility and capacity of a public school board meeting room.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/62002, issued May 14, 2020.pdf","sha256":"858f2c3df447bdd6249efd17522c5f0c3a90118a2d1c35087eba6a9573e77220","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting accessibility","public meeting","school board","meeting capacity"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 14, 2020\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMs. Christine G. Christensen\nMiller, Tracy, Braun, Funk &\n\nMiller, Ltd.\n\n316 South• Charter\nP. O. Box 80.\nMonticello, Illinois 61865\ncchristensen@millertracy.\n\nRE:\n\nDear\n\ncom\n\nOMA\n\nRequest for Review — 2020 PAC 62002\n\nand Ms. Christensen:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the February 25, 2020, meeting of the Decatur Public School District No.\n61 Board of Education ( Board) did not violate the requirements\n\nof OMA.\n\nIn her March 2, 2020, Request for Review,\n\nalleged that the\n\nBoard violated the requirements of OMA because the meeting location was not open or\nconvenient\n\nto the public.\n\nIn particular,\n\nalleged that the meeting room was at capacity\n\nand members of the public had to stand in the hallway or view the proceedings in a conference\n\nroom on another floor. On March 9, 2020, this office sent a copy of the Request for Review to\nthe Board and requested that it provide a written response to\n\nallegations and to\n\nprovide copies of the February 25, 2020, meeting agenda and minutes, as well as any recordings\nof the open session of the meeting. On March 18, 2020, counsel for the Board provided a written\nanswer. On April 1, 2020, this office forwarded the Board' s written response to\n\ndid not reply.\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • (\n\n100 West Randolph\n\nIllinois\n\n601 South\n\nUniversity\n\nStreet, Chicago,\nAve., Carbondale,\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois 62901 • (\n\n618)\n\n529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\nshe\n\n\fMs. Christine G. Christensen\n\nMay 14, 2020\nPage 2\n\nDETERMINATION\n\nSection 1 of OMA ( 5 ILCS\n\n120/ 1\n\net\n\nseq. ( West 2018))\n\nprovides that \" it is the\n\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted\n\nSection\n\nopenly.\"\n\n1 of OMA further. provides that members\n\nof the\n\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in\nany way.\" This office construed Mr. Johnson' s Request for Review as alleging a\nviolation\n\nof section\n\n2. 01\n\nof OMA (\n\n5 ILCS 120/ 2. 01 ( West 2018)),\n\nwhich\n\nprovides\n\nthat \"[\n\na] ll\n\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient\n\nand\n\nconvenient,'\n\nThis provision \" requires a venue that is not only 'open,' but\nGerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 ( 4th\n\nto the public.\"\n\nopen\n\nto the public.\"\n\nDist. 2003).\n\nIn addressing the meaning of \"convenient\" for purposes of section 2. 01 of OMA,\nstated that \"[\na] meeting can be open in the sense that no one is prohibited from\n\nthe Gerwin\n\ncourt\n\nattending it,' but it can be held in such an ill- suited, unaccommodating, unadvantageous place that\nof the\n\nmembers\n\nIll.\n\npublic,\n\nApp. 3d ' at 361.\n\nlegislature\n\nas a practical\n\nStill, the\n\nintended * * *\n\ncourt\n\nmatter,\n\nwould\n\nbe deterred from attending\n\nfound that \"[ i] t would be unreasonable\n\nit.\" Gerwin, 345\n\nto suppose the\n\nthat public bodies hold their meetings ' at such locations\n\nas are\n\nsufficient to accommodate all interested members of the public, such that they may see and hear\nall\n\nin reasonable\n\nproceedings\n\nApp.\n\n3d\n\ncomfort\n\nand\n\nsafety.' (\n\nEmphasis in original.)\n\nGerwin, 345 I11.\n\n361.\n\nAccordingly, the court construed section 2. 01 as requiring \" not 'absolute\nGerwin, 345 III. App. 3d at 362, quoting State ex\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N. W. 2d 408,\nat\n\naccessibility'\n\n418 ( Wis.\n\nbut ' reasonable accessibility.'\n\n1993).\n\nThe Board explained that it held its February 25, 2020, meeting at its usual\n\nlocation, the board room on the first floor of the Keil Administration Building. The Board stated\nthat it ordinarily supplied seating for 82 members of the public in the board room, and that\naverage attendance at its meetings is approximately 70 people. The Board acknowledged that\n\nattendance on occasions had been higher in the months prior to the meeting in question. The\nBoard stated that the Board and its staff had been contacted by members of the public about\nincreased attendance at its meetings, and anticipated a larger than normal turnout for the\n\nFebruary 25, 2020, meeting. Accordingly, the Board stated it had prepared additional seating for\n75 people to view a live stream of the meeting in a conference room on the third floor and had\nreserved accessible seating in the board room for individuals with disabilities. The Board stated\n\nthat between 75 and 80 people attended the meeting in the board room along with approximately\n20 people in the third floor conference room. The Board acknowledged that a few individuals\n\nchoose to stand in the hallway outside of the board room, but asserted that most of those were\nDistrict administrators\n\nwho\n\nstood\n\nso\n\nthat others\n\ncould\n\nsit\n\nin the board\n\nroom.\n\n\fMs. Christine G. Christensen\n\nMay 14, 2020\nPage 3\n\nasserted that she had contacted the District on February 19, 2020,\nabout moving the location of the February 25, 2020, meeting to a larger space because more\npeoplemight have attended the meeting than could have been accommodated in the board room.\nShe also alleged that another person had contacted the District about ensuring adequate seating at\nthe meeting for people with disabilities.\nstated that the Board had declined the\nrequest for a change of meeting location.\nasserted that the February 25, 2020,\nmeeting was inconvenient because individuals attending the meeting in the conference room had\nto be summoned\n\nfrom the third floor to participate\n\nin public comment.\n\nfurther\n\nasserted that the meeting was inconvenient because individuals standing in the hallway were not\nprovided seating. Lastly,\n\nalleged that the Board had alternative locations to hold the\n\nmeeting that would have accommodated more people. She speculated that the Board may have.\nchosen to hold the meeting in the board room to discourage increased participation by members\nof the Decatur Federation of Teaching Assistants whose contract was being negotiated at that\ntime;\n\nr..\n\nThe Board' s response asserted that every person who wished to sit was provided: a\n\nseat in either the board room or the conference room on the third floor. The Board stated that\nevery attendee who wished to speak at the meeting was provided an opportunity, and that ,\nindividuals seated in the conference room who wished to speak were escorted to the board room\nto address the Board. The Board further argued that the inconvenience of a person seated in the\n\nconference room going downstairs to provide public comment was minimal and did not\nconstitute\n\na violation\n\nof OMA.\n\nThis office has reviewed the materials submitted by the parties, including pictures\nof the meeting room and a video recording of the open session portion of the February 25, 2020,\nmeeting. This office' s review of the video of the meeting indicated that the board room was at\ncapacity and some individuals walked from the conference room upstairs to the board room to\naddress the Board. The video also shows that three individuals who addressed the Board\n\ncomplained about the Board' s choice of location for the meeting, the lack of seating for all who\nwished to attend in the room where, the meeting was held, and the accessibility of the meeting\nroom for individuals\n\nin the third floor conference\n\nroom who wished to speak.\n\nand\n\nthe Board agree that the Board was informed before the meeting of the potential for an unusually\nlarge turnout at the meeting. However, the court in Gerwin made clear that a public body is\nrequired to provide reasonable access under the circumstances.\n\nThe Board took reasonable steps\n\nto provide access for the unusually large crowd by nearly doubling the amount of seating for\nattendees, reserving accessible seating for the disabled, and providing an overflow room for\nindividuals to observe a live stream video of the meeting. The available information indicates\nthat seating was provided for all attendees, but some attendees choose to stand outside the board\nroom rather, than sit in the conference\nroom.\nFurther, despite a slight delay in the meeting to\n\n\fMs. Christine G. Christensen\n\nMay 14, 2020\nPage 4\n\nallow speakers to walk from the conference room to the board room to address the Board, there\n\nis no indication that any individual who wished to observe the meeting and address the Board\nwas unable to do so. Accordingly, we conclude that the Board did not violate OMA. This office\nencourages the Board to continue to monitor public attendance at its meetings and be mindful of\n\nits obligation to make its meetings reasonably accessible to the public.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, mhartman@atg. state. il. us, or (217) 782- 9054.\nThis letter serves to close this file.\n\nVery truly yours,\n\nMATT\n\nHARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n62002 o 201 location proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's meeting room capacity and overflow accommodations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62002/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 14, 2020\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMs. Christine G. Christensen\nMiller, Tracy, Braun, Funk &\n\nMiller, Ltd.\n\n316 South• Charter\nP. O. Box 80.\nMonticello, Illinois 61865\ncchristensen@millertracy.\n\nRE:\n\nDear\n\ncom\n\nOMA\n\nRequest for Review — 2020 PAC 62002\n\nand Ms. Christensen:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS\n\n120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the February 25, 2020, meeting of the Decatur Public School District No.\n61 Board of Education (Board) did not violate the requirements\n\nof OMA.\n\nIn her March 2, 2020, Request for Review,\n\nalleged that the\n\nBoard violated the requirements of OMA because the meeting location was not open or\nconvenient\n\nto the public.\n\nIn particular,\n\nalleged that the meeting room was at capacity\n\nand members of the public had to stand in the hallway or view the proceedings in a conference\n\nroom on another floor. On March 9, 2020, this office sent a copy of the Request for Review to\nthe Board and requested that it provide a written response to\n\nallegations and to\n\nprovide copies of the February 25, 2020, meeting agenda and minutes, as well as any recordings\nof the open session of the meeting. On March 18, 2020, counsel for the Board provided a written\nanswer. On April 1, 2020, this office forwarded the Board's written response to\n\ndid not reply.\n\nDETERMINATION\n\nSection 1 of OMA (5 ILCS\n\n120/ 1\n\net\n\nseq. (West 2018))\n\nprovides that \" it is the\n\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted\n\nSection\n\nopenly.\"\n\n1 of OMA further. provides that members\n\nof the\n\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in\nany way.\" This office construed Mr. Johnson's Request for Review as alleging a\nviolation\n\nof section\n\n2. 01\n\nof OMA (5 ILCS 120/ 2. 01 (West 2018)),\n\nwhich\n\nprovides\n\nthat \"[\n\na] ll\n\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient\n\nand\n\nconvenient,'\n\nThis provision \" requires a venue that is not only 'open,' but\nGerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 (4th\n\nto the public.\"\n\nopen\n\nto the public.\"\n\nDist. 2003).\n\nIn addressing the meaning of \"convenient\" for purposes of section 2. 01 of OMA,\nstated that \"[\na] meeting can be open in the sense that no one is prohibited from\n\nthe Gerwin\n\ncourt\n\nattending it,' but it can be held in such an ill- suited, unaccommodating, unadvantageous place that\nof the\n\nmembers\n\nIll.\n\npublic,\n\nApp. 3d ' at 361.\n\nlegislature\n\nas a practical\n\nStill, the\n\nintended * * *\n\ncourt\n\nmatter,\n\nwould\n\nbe deterred from attending\n\nfound that \"[ i] t would be unreasonable\n\nit.\" Gerwin, 345\n\nto suppose the\n\nthat public bodies hold their meetings ' at such locations\n\nas are\n\nsufficient to accommodate all interested members of the public, such that they may see and hear\nall\n\nin reasonable\n\nproceedings\n\nApp.\n\n3d\n\ncomfort\n\nand\n\nsafety.' (Emphasis in original.)\n\nGerwin, 345 I11.\n\n361.\n\nAccordingly, the court construed section 2. 01 as requiring \" not 'absolute\nGerwin, 345 III. App. 3d at 362, quoting State ex\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N. W. 2d 408,\nat\n\naccessibility'\n\n418 (Wis.\n\nbut ' reasonable accessibility.'\n\n1993).\n\nThe Board explained that it held its February 25, 2020, meeting at its usual\n\nlocation, the board room on the first floor of the Keil Administration Building. The Board stated\nthat it ordinarily supplied seating for 82 members of the public in the board room, and that\naverage attendance at its meetings is approximately 70 people. The Board acknowledged that\n\nattendance on occasions had been higher in the months prior to the meeting in question. The\nBoard stated that the Board and its staff had been contacted by members of the public about\nincreased attendance at its meetings, and anticipated a larger than normal turnout for the\n\nFebruary 25, 2020, meeting. Accordingly, the Board stated it had prepared additional seating for\n75 people to view a live stream of the meeting in a conference room on the third floor and had\nreserved accessible seating in the board room for individuals with disabilities. The Board stated\n\nthat between 75 and 80 people attended the meeting in the board room along with approximately\n20 people in the third floor conference room. The Board acknowledged that a few individuals\n\nchoose to stand in the hallway outside of the board room, but asserted that most of those were\nDistrict administrators\n\nwho\n\nstood\n\nso\n\nasserted that she had contacted the District on February 19, 2020,\nabout moving the location of the February 25, 2020, meeting to a larger space because more\npeoplemight have attended the meeting than could have been accommodated in the board room.\nShe also alleged that another person had contacted the District about ensuring adequate seating at\nthe meeting for people with disabilities.\nstated that the Board had declined the\nrequest for a change of meeting location.\nasserted that the February 25, 2020,\nmeeting was inconvenient because individuals attending the meeting in the conference room had\nto be summoned\n\nfrom the third floor to participate\n\nin public comment.\n\nfurther\n\nasserted that the meeting was inconvenient because individuals standing in the hallway were not\nprovided seating. Lastly,\n\nalleged that the Board had alternative locations to hold the\n\nmeeting that would have accommodated more people. She speculated that the Board may have.\nchosen to hold the meeting in the board room to discourage increased participation by members\nof the Decatur Federation of Teaching Assistants whose contract was being negotiated at that\ntime;\n\nr..\n\nThe Board's response asserted that every person who wished to sit was provided: a\n\nseat in either the board room or the conference room on the third floor. The Board stated that\nevery attendee who wished to speak at the meeting was provided an opportunity, and that,\nindividuals seated in the conference room who wished to speak were escorted to the board room\nto address the Board. The Board further argued that the inconvenience of a person seated in the\n\nconference room going downstairs to provide public comment was minimal and did not\nconstitute\n\na violation\n\nof OMA.\n\nThis office has reviewed the materials submitted by the parties, including pictures\nof the meeting room and a video recording of the open session portion of the February 25, 2020,\nmeeting. This office's review of the video of the meeting indicated that the board room was at\ncapacity and some individuals walked from the conference room upstairs to the board room to\naddress the Board. The video also shows that three individuals who addressed the Board\n\ncomplained about the Board's choice of location for the meeting, the lack of seating for all who\nwished to attend in the room where, the meeting was held, and the accessibility of the meeting\nroom for individuals\n\nin the third floor conference\n\nroom who wished to speak.\n\nand\n\nthe Board agree that the Board was informed before the meeting of the potential for an unusually\nlarge turnout at the meeting. However, the court in Gerwin made clear that a public body is\nrequired to provide reasonable access under the circumstances.\n\nThe Board took reasonable steps\n\nto provide access for the unusually large crowd by nearly doubling the amount of seating for\nattendees, reserving accessible seating for the disabled, and providing an overflow room for\nindividuals to observe a live stream video of the meeting. The available information indicates\nthat seating was provided for all attendees, but some attendees choose to stand outside the board\n\nallow speakers to walk from the conference room to the board room to address the Board, there\n\nis no indication that any individual who wished to observe the meeting and address the Board\nwas unable to do so. Accordingly, we conclude that the Board did not violate OMA. This office\nencourages the Board to continue to monitor public attendance at its meetings and be mindful of\n\nits obligation to make its meetings reasonably accessible to the public.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter, mhartman@atg. state. il. us, or (217) 782- 9054.\nThis letter serves to close this file.\n\nVery truly yours,\n\nMATT\n\nHARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n62002 o 201 location proper sd"}
{"id":1329,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-07-23","case_number":null,"request_numbers":["62578"],"title":"Evanston Board of Ethics did not violate OMA by entering closed session on ethics jurisdiction","filename":"62578, issued July 23, 2020.pdf","rel_path":null,"word_count":1523,"summary":"The requester alleged that the Evanston Board of Ethics improperly entered closed session to discuss ethics complaint jurisdiction, but the PAC determined the Board did not violate the Open Meetings Act.","plain_summary":"A citizen alleged that a municipal ethics board improperly held closed session to consider its jurisdiction over ethics complaints. The PAC determined that the complaints and a complainant's argument constituted \"evidence or testimony\" properly considered in closed session under the Open Meetings Act's quasi-adjudicative exception, and that the board had issued, or committed to issue, written decisions setting out its reasoning as that exception requires. The board did not improperly enter closed session, provided the still-pending written decision is made public as promised.","holding":"The Evanston Board of Ethics did not violate the Open Meetings Act by entering closed session to discuss the jurisdiction of ethics complaints.","legal_question":"Whether the Evanston Board of Ethics violated the Open Meetings Act by entering closed session under section 2(c)(4) to discuss the jurisdiction of ethics complaints.","disposition":"no_violation","primary_statute":["5 ILCS 120/2(c)(4)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(4)","5 ILCS 120/2(c)(15)"],"public_body":"Evanston Board of Ethics","requesting_party":"Ms. Yordana Wysocki","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Ethics held a closed session to discuss its jurisdiction over specific ethics complaints.","ocr_status":"ok","ocr_quality":94,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_4/62578, issued July 23, 2020.pdf","sha256":"3544254d4162837937f6624b75d175435f2f7f7bc9f7fba2f56e9176330e7f55","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","ethics board","jurisdiction","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"I.\nI\n\nI\nI\nI\n\n!\n\nI\n\n. OFFICE OF THE ATTORNEY GENERAL·\nSTATE OF ILLINOIS\n\nI\nI\n\nI\nI\n\nKWAME RAOUL\n\nI\n\nATTORNEY GENERAL\n\nI\n\nJuly 23,2020\n\nVia electronic mail\n\nMs. Yordana Wysocki\nHervas,Condon & Bersani,P.C.\n[street address redacted for site publication -- see original PDF]\nywysocki@hcbattomeys.com\nRE:\nDear\n\nOMA Request for Review - 2020 OAC 62578.\n\nd Ms. Wysocki:\n\nThis determination is issued pursuant to section 3.5(e) of the ©pen Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons explained below,�he Public Access\nBureau concludes that the Evanston Board of Ethics (Board) did not violate (;)MA by entering\nclosed session at its March 3,2020,meeting under section 2(c)(4) of OMA (5 ILCS 120/2(c)(4)\n(West 2018),as amended by Public Acts 101-031,effective June 28,2019; 101-459,effective\n•\nAugust 23,2019).\n.\n\\\n•\n\nI\n\n..\n\nI\n\ns Request for Review\nOn April 13,2020,this office received\nalleging that at its March 3,2020,meeting,the Board improperly entered clo�ed session pursuant\nto the exceptions in sections 2(c)(4) and 2(c)(15) of OMA 1 to discuss the Bo$-d's jurisdiction\nover ethics complaints filed by Dan Coyne,Devon Reid,and Misty Witenberg. The Board\ncombined and then bifurcated the identical complaints filed by Mr. Reid and �s. Witenberg into\n••\n·\ntwo complaints.\nI\nOn April 15,2020,this office sent a copy of the Request for R�view to the Board,\nand requested that it provide a written response to �llegations. This :office also\n•\n\n1\nI\n\n5 ILCS 120/2(c)(1\"5) (West2018), as amended by Public Acts 101-03 1, effective June28,2019;\n.101-459, effectiveAugust2 3,2019.\n\\\n1\n\nI\nI\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South Univefsity Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\nI\n\n\fMs. Yordana Wysocki\n\nJuly 23, 2020\nPage 2\n\nrequested\n\nof the\n\ncopies\n\nMarch 3, 2020, meeting agenda,\n\nminutes\n\nof\n\nboth the' iopen\n\nand\n\nclosed\n\nsessions, recordings of the open and closed sessions, and relevant portions of the City of\n\nEvanston' s Code of Ordinances (City Code). 2 On April 22, 2020, this office received the\nrequested materials and the Board' s answer, a portion of which was provided confidentially. The\nBoard sent a copy of its response to\nexcluding any confidential materials. On May 1,\n2020, this office received\nreply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand\n\nthat their\n\ndeliberations\n\nbe conducted\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\nopenly.\"\n\n161, 171 ( 5th Dist. 1989).\n\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that all meetings\n\nof a public body shall be open to the, public unless the subject of the meetingjfalls within one of\n\nthe exceptions set out in section 2( c) of OMA. The section 2( c) exceptions are to be \" strictly\nconstrued,\n\nextending\n\nonly to subjects\n\nclearly\n\nwithin\n\ntheir\n\nscope.\"\n\n5 ILCS\n\n129/ 2( b) ( West 2018),\n\nas amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23,\n2019; see also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 ( 4th. Dist. 2005) ( strictly\nconstruing section\n\n2( c)( 1)\n\nof\n\nOMA ( 5 ILCS 120/ 2( c)( 1) (\n\nWest 2002)).\n\nSection 2( c)( 4)\n\nSection 2( c)( 4) permits a public body to hold closed meetings Ito consider\nevidence or testimony presented in open hearing, or in closed hearing where specifically\nauthorized\nby law, to a quasi - adjudicative body * * * provided that the body prepares and\nmakes available for public inspection a written decision setting forth its dOterminative\nreasoning.\" ( Emphasis added.).\n\nAs a preliminary measure, section 1. 10( 8)( D) of the City's Code of Ordinances\nrequire that the. City's\nLaw Department issue a confidential written advisory report as to whether the Board has\nEvanston, Ill. Code of Ordinances § 1. 10. 8( D) ( November 27, 2019))\n\njurisdiction\n\nover\n\n1. 10. 8( E) of the\n\nthe person\n\nand\n\nthe misconduct\n\nCity Code ( Evanston, Ill. Code\n\nalleged\nof\n\nin an ethics complain.\n\nUnder section\n\nOrdinances § 1. 10. 8( E) ( November 27, 2019)),\n\n2The Evanston Code of Ordinances was revised between the time the complaints at issue were\n\nfiled and when the March 2, 2020, meeting took place. As the Board is considering the allegations made in the\ncomplaints\n\nunder the ordinance\n\nthat version of the ordinance.\n\nin effect at the time the complaints\n\nwere filed, this office' s determination\n\nis based on\n\n\fMs. Yordana Wysocki\n\nJuly 23, 2020\nPage 3\n\nthe advisory report is then sent to each member of the Board and to the complainant. Section\n1. 10. 8( E) also requires the Board to consider the advisory report in executive session to\ndetermine\n\nwhether it has jurisdiction\n\nover a complaint.\n\nOn March 3, 2020, the Board held a meeting to consider whether it had\njurisdiction over the three complaints at issue. It appears that before the meeting, the members\n\nof the Board were given copies of the Law Department's advisory reports regarding jurisdiction,\nand each of the complainants were given the advisory report for their respective complaints.\n\nThe\n\nBoard' s draft meeting minutes show that during the open session portion of the meeting, the\nBoard gave the complainants the opportunity to verbally supplement their written materials\n\nAccording to the minutes, Mr. Coyne stated that he would stand on his written complaint and\nsubmissions, while Ms. Witenberg made a motion to disqualify the Board' s attorney and\nprovided\nan argument\nto supplement her written complaint.\nMs. Witenberg' s co - complainant,\nMr. Reid did not attend the March 3, 2020, meeting.\nargues that the written complaints and Ms. Witenberg' s comments did not\nconstitute \" evidence or testimony\" for purposes of section 2( c)( 4) of OMA. Black's Law\nDictionary defines \" evidence\" as \" something ( including testimony, documents, and tangible\nobjects) that tends to prove or disprove the existence of an alleged fact; anything presented to the\nsenses\n\nand\n\noffered\n\nto prove\n\nthe existence\n\nor nonexistence\n\n11th ed. 2019), available at Westlaw BLACKS.\n\nof a\n\nfact[.]\".\n\nBlack's Law Dictionary\n\nAs sworn statements, the complaints as well as\n\nany additional information submitted in support of the complaints, including Ms. Witenberg' s\nargument during the meeting, constitute \" evidence or testimony\" under section 2( c)( 4) of OMA.\nalso argues that the Board should not have considered the advisory reports\nprepared by the Law Department because these reports were not presented inlopen hearing.\nSection 2( c)( 4) of OMA does not limit the consideration of matters in closed session to evidence\n\nor testimony presented in open hearing. Rather, section 2( c)( 4) allows for evidence or testimony\n\npresented in open hearing, or in closed hearing where specifically authorized by law.\"\nEmphasis\n\nSection 1- 10- 8( E) of the City Code not only authorizes but requires the\nBoard to \" consider said [ advisory] report and the findings and conclusions therein in executive\nadded.)\n\nsession[.]\"\n\nSection 2( c)( 4) of OMA only authorizes a public body to consider evidence and\ntestimony in closed session if it prepares and makes available for public inspection a \" written\ndecision setting forth its determinative reasoning.\" Before the Board' s open meeting on July 1,\n\n2020, the Board issued and made publicly available its jurisdictional findings for two of the three\ncomplaints at issue in this matter. This office' s review of those findings confirms that they\nadequately set forth the Board' s determinative reasoning as required by section 2( c)( 4) of OMA.\n\n\fMs. Yordana Wysocki\n\nJuly 23, 2020\nPage 4\n\nWith respect to the remaining complaint, although the Board found it had\njurisdiction, it has not yet issued a written decision of its determinative reasoning.\n\nHowever, the\n\nBoard' s response to this office stated that the Board will issue a written opinion after hearing the\nmerits of this complaint. Assuming that the opinion is made publicly available and sets forth the\nBoard' s determinative reasoning on its jurisdictional finding, the Board did not improperly enter\nexecutive session at its March 3, 2020, meeting. Because this determination resolves this matter,\nthis office need not consider whether the Board' s closed session discussion\n\nwas also authorized\n\nby section 2( c)( 15) of OMA.\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Please\ncontact me at ( 877) 299- 3642 or the Chicago address on the first page of this lrer if you have.\nany questions.\n\nVery truly yours,\n\nGRACE ANGELOS\n\nAssistant Attorney General\nPublic Access Bureau\n\n62578 o proper 2c4 final action proper mun\n\ncc:\n\nVia electronic mail\n\nMs. Jennifer Billingsley\nChair\n\nCity of Evanston Board .of Ethics\n2100 Ridge Avenue\nEvanston,\n\nIllinois 60201\n\ncitymanagersoffice@cityofevanston.\n\norg\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that the Evanston Board of Ethics held an illegal private meeting to discuss ethics complaints. The Attorney General's office reviewed the matter and found that the Board's actions were permissible under the law, provided they eventually release their written reasoning to the public. The case is now closed.","card_headline":"Closed-session discussion of ethics complaint jurisdiction","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62578/","full_text":"I.\nI\n\nI\nI\nI\n\n!\n\nI\n\n. OFFICE OF THE ATTORNEY GENERAL·\nSTATE OF ILLINOIS\n\nI\nI\n\nI\nI\n\nKWAME RAOUL\n\nI\n\nATTORNEY GENERAL\n\nI\n\nJuly 23,2020\n\nVia electronic mail\n\nMs. Yordana Wysocki\nHervas,Condon & Bersani,P.C.\n[street address redacted for site publication -- see original PDF]\nywysocki@hcbattomeys.com\nRE:\nDear\n\nOMA Request for Review - 2020 OAC 62578.\n\nd Ms. Wysocki:\n\nThis determination is issued pursuant to section 3.5(e) of the ©pen Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons explained below,�he Public Access\nBureau concludes that the Evanston Board of Ethics (Board) did not violate (;)MA by entering\nclosed session at its March 3,2020,meeting under section 2(c)(4) of OMA (5 ILCS 120/2(c)(4)\n(West 2018),as amended by Public Acts 101-031,effective June 28,2019; 101-459,effective\n•\nAugust 23,2019).\n.\n\\\n•\n\nI\n\n..\n\nI\n\ns Request for Review\nOn April 13,2020,this office received\nalleging that at its March 3,2020,meeting,the Board improperly entered clo�ed session pursuant\nto the exceptions in sections 2(c)(4) and 2(c)(15) of OMA 1 to discuss the Bo$-d's jurisdiction\nover ethics complaints filed by Dan Coyne,Devon Reid,and Misty Witenberg. The Board\ncombined and then bifurcated the identical complaints filed by Mr. Reid and �s. Witenberg into\n••\n·\ntwo complaints.\nI\nOn April 15,2020,this office sent a copy of the Request for R�view to the Board,\nand requested that it provide a written response to �llegations. This:office also\n•\n\n1\nI\n\n5 ILCS 120/2(c)(1\"5) (West2018), as amended by Public Acts 101-03 1, effective June28,2019;\n.101-459, effectiveAugust2 3,2019.\n\\\n1\n\nI\nI\n\nrequested\n\nof the\n\ncopies\n\nMarch 3, 2020, meeting agenda,\n\nminutes\n\nof\n\nboth the' iopen\n\nand\n\nclosed\n\nsessions, recordings of the open and closed sessions, and relevant portions of the City of\n\nEvanston's Code of Ordinances (City Code). 2 On April 22, 2020, this office received the\nrequested materials and the Board's answer, a portion of which was provided confidentially. The\nBoard sent a copy of its response to\nexcluding any confidential materials. On May 1,\n2020, this office received\nreply.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand\n\nthat their\n\ndeliberations\n\nbe conducted\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\nopenly.\"\n\n161, 171 (5th Dist. 1989).\n\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that all meetings\n\nof a public body shall be open to the, public unless the subject of the meetingjfalls within one of\n\nthe exceptions set out in section 2(c) of OMA. The section 2(c) exceptions are to be \" strictly\nconstrued,\n\nextending\n\nonly to subjects\n\nclearly\n\nwithin\n\ntheir\n\nscope.\"\n\n5 ILCS\n\n129/ 2(b) (West 2018),\n\nas amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23,\n2019; see also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 (4th. Dist. 2005) (strictly\nconstruing section\n\n2(c)(1)\n\nof\n\nOMA (5 ILCS 120/ 2(c)(1) (West 2002)).\n\nSection 2(c)(4)\n\nSection 2(c)(4) permits a public body to hold closed meetings Ito consider\nevidence or testimony presented in open hearing, or in closed hearing where specifically\nauthorized\nby law, to a quasi - adjudicative body * * * provided that the body prepares and\nmakes available for public inspection a written decision setting forth its dOterminative\nreasoning.\" (Emphasis added.).\n\nAs a preliminary measure, section 1. 10(8)(D) of the City's Code of Ordinances\nrequire that the. City's\nLaw Department issue a confidential written advisory report as to whether the Board has\nEvanston, Ill. Code of Ordinances § 1. 10. 8(D) (November 27, 2019))\n\njurisdiction\n\nover\n\n1. 10. 8(E) of the\n\nthe person\n\nand\n\nthe misconduct\n\nCity Code (Evanston, Ill. Code\n\nalleged\nof\n\nin an ethics complain.\n\nUnder section\n\nOrdinances § 1. 10. 8(E) (November 27, 2019)),\n\n2 The Evanston Code of Ordinances was revised between the time the complaints at issue were\n\nfiled and when the March 2, 2020, meeting took place. As the Board is considering the allegations made in the\ncomplaints\n\nthe advisory report is then sent to each member of the Board and to the complainant. Section\n1. 10. 8(E) also requires the Board to consider the advisory report in executive session to\ndetermine\n\nwhether it has jurisdiction\n\nover a complaint.\n\nOn March 3, 2020, the Board held a meeting to consider whether it had\njurisdiction over the three complaints at issue. It appears that before the meeting, the members\n\nof the Board were given copies of the Law Department's advisory reports regarding jurisdiction,\nand each of the complainants were given the advisory report for their respective complaints.\n\nThe\n\nBoard's draft meeting minutes show that during the open session portion of the meeting, the\nBoard gave the complainants the opportunity to verbally supplement their written materials\n\nAccording to the minutes, Mr. Coyne stated that he would stand on his written complaint and\nsubmissions, while Ms. Witenberg made a motion to disqualify the Board's attorney and\nprovided\nan argument\nto supplement her written complaint.\nMs. Witenberg's co - complainant,\nMr. Reid did not attend the March 3, 2020, meeting.\nargues that the written complaints and Ms. Witenberg's comments did not\nconstitute \" evidence or testimony\" for purposes of section 2(c)(4) of OMA. Black's Law\nDictionary defines \" evidence\" as \" something (including testimony, documents, and tangible\nobjects) that tends to prove or disprove the existence of an alleged fact; anything presented to the\nsenses\n\nand\n\noffered\n\nto prove\n\nthe existence\n\nor nonexistence\n\n11th ed. 2019), available at Westlaw BLACKS.\n\nof a\n\nfact[.]\".\n\nBlack's Law Dictionary\n\nAs sworn statements, the complaints as well as\n\nany additional information submitted in support of the complaints, including Ms. Witenberg's\nargument during the meeting, constitute \" evidence or testimony\" under section 2(c)(4) of OMA.\nalso argues that the Board should not have considered the advisory reports\nprepared by the Law Department because these reports were not presented inlopen hearing.\nSection 2(c)(4) of OMA does not limit the consideration of matters in closed session to evidence\n\nor testimony presented in open hearing. Rather, section 2(c)(4) allows for evidence or testimony\n\npresented in open hearing, or in closed hearing where specifically authorized by law.\"\nEmphasis\n\nSection 1- 10- 8(E) of the City Code not only authorizes but requires the\nBoard to \" consider said [ advisory] report and the findings and conclusions therein in executive\nadded.)\n\nsession[.]\"\n\nSection 2(c)(4) of OMA only authorizes a public body to consider evidence and\ntestimony in closed session if it prepares and makes available for public inspection a \" written\ndecision setting forth its determinative reasoning.\" Before the Board's open meeting on July 1,\n\n2020, the Board issued and made publicly available its jurisdictional findings for two of the three\ncomplaints at issue in this matter. This office's review of those findings confirms that they\nadequately set forth the Board's determinative reasoning as required by section 2(c)(4) of OMA.\n\nWith respect to the remaining complaint, although the Board found it had\njurisdiction, it has not yet issued a written decision of its determinative reasoning.\n\nHowever, the\n\nBoard's response to this office stated that the Board will issue a written opinion after hearing the\nmerits of this complaint. Assuming that the opinion is made publicly available and sets forth the\nBoard's determinative reasoning on its jurisdictional finding, the Board did not improperly enter\nexecutive session at its March 3, 2020, meeting. Because this determination resolves this matter,\nthis office need not consider whether the Board's closed session discussion\n\nwas also authorized\n\nby section 2(c)(15) of OMA.\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Please\ncontact me at (877) 299- 3642 or the Chicago address on the first page of this lrer if you have.\nany questions.\n\nVery truly yours,\n\nGRACE ANGELOS\n\nAssistant Attorney General\nPublic Access Bureau\n\n62578 o proper 2c4 final action proper mun\n\ncc:\n\nVia electronic mail\n\nMs. Jennifer Billingsley\nChair\n\nCity of Evanston Board.of Ethics\n2100 Ridge Avenue\nEvanston,\n\nIllinois 60201\n\ncitymanagersoffice@cityofevanston.\n\norg"}
{"id":1330,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-06-08","case_number":null,"request_numbers":["62712"],"title":"City of Champaign did not violate OMA with emergency meeting during COVID-19 pandemic","filename":"62712, issued June 8, 2020.pdf","rel_path":null,"word_count":1799,"summary":"Mr. Kirk Allen alleged that the City of Champaign violated the Open Meetings Act by failing to provide 48 hours' notice for a March 13, 2020, meeting; the PAC determined the meeting was justified as a bona fide emergency.","plain_summary":"A citizen complained that the City of Champaign held a meeting without giving the public the required 48 hours' notice. The Attorney General's office reviewed the situation and decided that the meeting was a legitimate emergency response to the COVID-19 pandemic. Therefore, the City did not break the law by providing shorter notice.","holding":"The City of Champaign did not violate the Open Meetings Act by holding an emergency meeting with less than 48 hours' notice due to the COVID-19 pandemic.","legal_question":"Whether the City of Champaign's March 13, 2020, meeting qualified as a bona fide emergency under the Open Meetings Act, thereby exempting it from the 48-hour notice requirement.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Champaign","requesting_party":"Mr. Kirk Allen","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The City of Champaign held an emergency meeting regarding the COVID-19 pandemic with less than 48 hours' notice.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/emergency-meetings/62712, issued June 8, 2020.pdf","sha256":"8b338350340dc1a371f796b144ab8ff762a5f7ed3757058db80f2fa0e58bd88b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["emergency meeting","meeting notice","COVID-19","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 8, 2020\n\nVia electronic\n\nmail\n\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\nVia electronic\n\nmail\n\nThe Honorable\n\nDeborah\n\nFrank Feinen\n\nMayor\n\nCity of Champaign\n[street address redacted for site publication -- see original PDF]\ndeb. feinen@champaignil. gov\nRE: OMA Request for Review — 2020 PAC 62712\nDear Mr. Allen and Ms. Feinen:\n\nThis letter is issued pursuant to section 3. 5( e) of the Open Meetings Act ( OMA)\n5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council of the City of Champaign ( City Council) did not violate the\nrequirements of OMA by not providing the public with at least 48 hours' advance notice of a\nmeeting that was necessitated by a bona fide emergency.\nOn April 22, 2020, Mr. Kirk Allen submitted a Request for Review to the Public\n\nAccess Bureau alleging that the City Council violated OMA by not providing at least 48 hours'\nadvance notice of its March 13, 2020, emergency meeting. Mr. Allen argued that there was no\nbona fide emergency in the City that could have excused the City Council from the standard\nmeeting notice requirement of at least 48 hours.\n\n500 South Second Street, ' Springfield, Illinois 62701 • ( 217) 782- 1090 •\n100 West Randolph\n601 South\n\nUniversity\n\nStreet,\n\nChicago,\n\nIllinois 60601 • (\n\nAve., Carbondale,\n\nTTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806 •\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMr. Kirk Allen\nThe Honorable\n\nDeborah\n\nFrank\n\nFeinen\n\nJune 8, 2020\nPage 2\n\nOn April 28, 2020, this office forwarded a copy of the Request for Review to the\nCity Council and requested a copy of the notice, agenda, and minutes ( in draft form if necessary,\nfor this office' s confidential review) of the March 13, 2020, meeting and a written answer to Mr.\nAllen' s allegation that the City Council violated OMA by posting the agenda less than 48 hours\nin advance of the meeting absent a bona fide emergency. On May 4, 2020, this office received\nthe City Council' s response: On May 7, 2020, this office forwarded a copy of the City Council' s\nresponse to Mr. Allen. On May 17, 2020, this office received Mr. Allen' s reply.\nDETERMINATION\n\nOMA provides that it is the \" public policy of this State that its citizensshall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" 5 ILCS 120/ 1 ( West 2018). With respect to\nemergency\n\nmeetings,\n\nsection\n\n2. 02( a)\n\nof\n\nOMA ( 5 ILCS 120/ 2. 02( a) ( West 2018))\n\nprovides:\n\nPublic notice of any special meeting except a meeting held in the\nevent of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48\nhours before such meeting, which notice shall also include the\nagenda for the special, rescheduled, or reconvened meeting[.] * * *\nNotice of an emergency meeting shall be given as soon as\npracticable, but in any event prior to the holding of such meeting,\nto any news medium which has filed an annual request for notice\nunder subsection ( b) of this Section.[\"\n\nIn its respon'se to this office, the City Council stated that Mayor Deborah Frank\nFeinen issued an emergency declaration regarding the COVID- 19 pandemic on March 12, 2020,.\nin which she called for an emergency meeting to be held the next day. The City Council noted\nthat three days prior, on March 9, 2020, Governor J. B. Pritzker issued a \" Gubernatorial Disaster\n\nProclamation\" declaring that COVID- 19 posed a \" public health emergency\" and invoking the\nemergency powers in the Illinois Emergency Management Agency Act ( 20 ILCS 3305/ 1 et seq.\nCorrespondingly,\n\nsection\n\n2. 02( b)\n\nof OMA (\n\n5 ILCS 120/ 2. 02( b) ( West 2018))\n\nprovides:\n\nThe body shall supply copies of the notice of its regular meetings, and of the\n\nnotice of any special, emergency, rescheduled or reconvened meeting, to any\nnews medium that has filed an annual request for such notice. Any such news\nmedium shall also be given the same notice of all special, emergency,\nrescheduled\n\nor reconvened\n\nmeetings\n\nin the same\n\nmanner\n\nas is given to members\n\nof the body provided such news medium has given the public body an address or\n\ntelephone number within the territorial jurisdiction of the public body at which\nsuch\n\nnotice\n\nmay be\n\ngiven.\n\n\fMr. Kirk Allen\nThe Honorable\n\nDeborah\n\nFrank Feinen\n\nJune 8, 2020\nPage 3\n\n2 The City Council asserted that it provided the public with notice of the meeting\nas soon as was practicable after Mayor Feinen' s emergency declaration at 4: 30 p. m. on March 12,\nWest 2018)).\n\n2020, by posting notice at the City Building at an unspecified time and issuing a press release at\n5: 30 p. m. The City Council stated that notice of the meeting was also posted on the City' s\nwebsite\n\nat that time,\n\nand that a member\n\nof the news\n\nmedia\n\nand\n\nmembers\n\nof the public\n\nwere\n\nable\n\nto attend the meeting. The City Council argued that the emergency declarations from both\nMayor Feinen and Governor Pritzker that the COVID- 19 pandemic that existed as of March .12,.\n\n2020, created a bona fide emergency for the City.\nIn his reply, Mr. Allen argued that the City Council provided no evidence that the\nCity was experiencing an emergency as of March 12, 2020, because it had no COVID- 19 cases\nyet. Mr. Allen questioned why, if the Gubernational Disaster Proclamation was the basis for the,\nMayor' s emergency declaration, the City Council waited three days after it was issued to\nannounce an emergency meeting. In any event, he disputed that an emergency jeopardizing\npublic health and safety existed at the time the proclamation was issued and argued that the\nactions of the State of Illinois and the Illinois Emergency Management Agency \" have nothing to\ndo with what is taking place in the City of Champaign. i3 Mr. Allen additionally referenced a\nportion of a sentence from a report to the City Council dated March 13, 2020, in which the city\nmanager explained the background and ramifications of a bill that would implement the mayor' s\n\nemergency declaration. In examining the alternative of not passing the bill, the city manager\nstated that \"[ t] he City Council could delay action on the ordinance and wait until the situation\npresented\n\na clear picture\n\nof the\n\nfull extent of the nature of the emergency. i4 Mr. Allen argued\n\nthat this language reflects that there was no true emergency in the City as of March 12, 2020.\nIt is undisputed that the City Council did not provide at least 48 hours' advance\nnotice of its March 13, 2020, meeting as required by section 2. 02( a) of OMA, unless the meeting\nwas \"\n\nheld in the event\n\nthe event of a bonafide emergency.\"\n\nOMA does not define the phrase\n\nbonafide emergency,\"\n\nand no Illinois reviewing court has addressed the issue of what\nfor purposes of section 2. 02( a). Yet, an \" emergency\" is\ndefined as \" an unforeseen combination of circumstances or the resulting state that calls for\nimmediate action.\" ( Emphasis added.) Webster' s Third New International Dictionary, 741\nconstitutes\n\na\n\nbona fide emergency\n\n1993).\n\nZGubernational\n\nDisaster Proclamation ( March 9, 2020), available at\n\nhttps:// www2. illinois. gov/ sites/ gov/ Documents/ CoronavirusDisasterProc-\n\n3- 12- 2020. pdf (last visited June 5, 2020).\n\n3E - mail from Kirk Allen to the Public Access Bureau ( May 17, 2020).\nCity of Champaign,\n2020),\n\nat 3.\n\nReport to\n\nCity Council\n\nfrom\n\nDorothy Ann David, City Manager ( March\n\n13,\n\n\fr.Kirk Allen\nThe Honorable\n\nDeborah\n\nFrank\n\nFeinen\n\nJune 8, 2020\nPage 4\n\nBased on this definition, the Public Access Bureau has previously determined that\nunanticipated circumstances requiring immediate action that would justify providing less than\n48 hours' notice [ ]\"\nare necessary for a meeting to qualify as one held in the event of a bona fide\nemergency. ( Emphasis added.)\n111. Att' y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013,\nat 4. In that matter, this office rejected a public body' s assertion that an account deficit that could\nhave resulted in the public body failing to meet payroll constituted a \" bona fide emergency\"\nunder section 2. 02( a), partly because the \" situation that precipitated\" the meeting \" was clearly\nforeseeable.\"\n111. Att'y Gen. PAC Req. Rev. Ltr. 23656, at 4; see also River Road Neighborhood\nAss' n v. South Texas Sports, 720 S. W. 2d 551, 557 ( Tex. App. 1986) (\" The mere necessity for\nquick actiondoes not constitute an emergency where the situation calling for such action is one\nwhich reasonably should have been anticipated.\").\nThis office concludes that the circumstances surrounding the COVID- 19\npandemic as of March 12, 2020, entailed a bona fide emergency in the City that was sufficient to\njustify an emergency City Council meeting with less than 48 hours' notice. On that date, public\nbodies across the State were taking swift measures to react to the COVID- 19 pandemic in light\nof its rapid spread and devastating impact. The uncertainty and severity involved in the\nimmediate action. Even if the City\npandemic presented unanticipated circumstances warranting\ndid not have any active COVID- 19 cases as of March 12, 2020, the potential for an outbreak of a\nfatal, highly communicable, disease warranted emergency preparations. Further, the language\nfrom the city manager' s report to the City Council does not support Mr. Allen' s arguments; the\n\nreport as a whole is clear that the pandemic created an emergency for the City, and the\nreferenced language simply addresses the possibility of waiting until there was a more\ncomprehensive understanding of the emergency. Under these unprecedented circumstances, this\n\noffice concludes that the City Council did not violate OMA by holding an emergency meeting\nwith less than 48 hours' advance notice.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at ( 312) 814- 4461, or\nby e- mail at jsternecky@atg. state. il. us. This letter serves to close this file.\nVery truly yours,\n\nJANE STERNECKY\n\nAssistant Attorney General\nPublic\n\n62712 o 202 notice proper mun\n\nAccess Bureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An emergency meeting with less than 48 hours' notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62712/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 8, 2020\n\nVia electronic\n\nmail\n\nMr. Kirk Allen\n\nkirk@illinoisleaks. com\nVia electronic\n\nmail\n\nThe Honorable\n\nDeborah\n\nFrank Feinen\n\nMayor\n\nCity of Champaign\n[street address redacted for site publication -- see original PDF]\ndeb. feinen@champaignil. gov\nRE: OMA Request for Review — 2020 PAC 62712\nDear Mr. Allen and Ms. Feinen:\n\nThis letter is issued pursuant to section 3. 5(e) of the Open Meetings Act (OMA)\n5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council of the City of Champaign (City Council) did not violate the\nrequirements of OMA by not providing the public with at least 48 hours' advance notice of a\nmeeting that was necessitated by a bona fide emergency.\nOn April 22, 2020, Mr. Kirk Allen submitted a Request for Review to the Public\n\nAccess Bureau alleging that the City Council violated OMA by not providing at least 48 hours'\nadvance notice of its March 13, 2020, emergency meeting. Mr. Allen argued that there was no\nbona fide emergency in the City that could have excused the City Council from the standard\nmeeting notice requirement of at least 48 hours.\n\nOn April 28, 2020, this office forwarded a copy of the Request for Review to the\nCity Council and requested a copy of the notice, agenda, and minutes (in draft form if necessary,\nfor this office's confidential review) of the March 13, 2020, meeting and a written answer to Mr.\nAllen's allegation that the City Council violated OMA by posting the agenda less than 48 hours\nin advance of the meeting absent a bona fide emergency. On May 4, 2020, this office received\nthe City Council's response: On May 7, 2020, this office forwarded a copy of the City Council's\nresponse to Mr. Allen. On May 17, 2020, this office received Mr. Allen's reply.\nDETERMINATION\n\nOMA provides that it is the \" public policy of this State that its citizensshall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" 5 ILCS 120/ 1 (West 2018). With respect to\nemergency\n\nmeetings,\n\nsection\n\n2. 02(a)\n\nof\n\nOMA (5 ILCS 120/ 2. 02(a) (West 2018))\n\nprovides:\n\nPublic notice of any special meeting except a meeting held in the\nevent of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48\nhours before such meeting, which notice shall also include the\nagenda for the special, rescheduled, or reconvened meeting[.] * * *\nNotice of an emergency meeting shall be given as soon as\npracticable, but in any event prior to the holding of such meeting,\nto any news medium which has filed an annual request for notice\nunder subsection (b) of this Section.[\"\n\nIn its respon'se to this office, the City Council stated that Mayor Deborah Frank\nFeinen issued an emergency declaration regarding the COVID- 19 pandemic on March 12, 2020,.\nin which she called for an emergency meeting to be held the next day. The City Council noted\nthat three days prior, on March 9, 2020, Governor J. B. Pritzker issued a \" Gubernatorial Disaster\n\nProclamation\" declaring that COVID- 19 posed a \" public health emergency\" and invoking the\nemergency powers in the Illinois Emergency Management Agency Act (20 ILCS 3305/ 1 et seq.\nCorrespondingly,\n\nsection\n\n2. 02(b)\n\nof OMA (5 ILCS 120/ 2. 02(b) (West 2018))\n\nprovides:\n\nThe body shall supply copies of the notice of its regular meetings, and of the\n\nnotice of any special, emergency, rescheduled or reconvened meeting, to any\nnews medium that has filed an annual request for such notice. Any such news\nmedium shall also be given the same notice of all special, emergency,\nrescheduled\n\nor reconvened\n\nmeetings\n\nin the same\n\nmanner\n\nas is given to members\n\nof the body provided such news medium has given the public body an address or\n\ntelephone number within the territorial jurisdiction of the public body at which\nsuch\n\nnotice\n\n2 The City Council asserted that it provided the public with notice of the meeting\nas soon as was practicable after Mayor Feinen's emergency declaration at 4: 30 p. m. on March 12,\nWest 2018)).\n\n2020, by posting notice at the City Building at an unspecified time and issuing a press release at\n5: 30 p. m. The City Council stated that notice of the meeting was also posted on the City's\nwebsite\n\nat that time,\n\nand that a member\n\nof the news\n\nmedia\n\nand\n\nmembers\n\nof the public\n\nwere\n\nable\n\nto attend the meeting. The City Council argued that the emergency declarations from both\nMayor Feinen and Governor Pritzker that the COVID- 19 pandemic that existed as of March.12,.\n\n2020, created a bona fide emergency for the City.\nIn his reply, Mr. Allen argued that the City Council provided no evidence that the\nCity was experiencing an emergency as of March 12, 2020, because it had no COVID- 19 cases\nyet. Mr. Allen questioned why, if the Gubernational Disaster Proclamation was the basis for the,\nMayor's emergency declaration, the City Council waited three days after it was issued to\nannounce an emergency meeting. In any event, he disputed that an emergency jeopardizing\npublic health and safety existed at the time the proclamation was issued and argued that the\nactions of the State of Illinois and the Illinois Emergency Management Agency \" have nothing to\ndo with what is taking place in the City of Champaign. i3 Mr. Allen additionally referenced a\nportion of a sentence from a report to the City Council dated March 13, 2020, in which the city\nmanager explained the background and ramifications of a bill that would implement the mayor's\n\nemergency declaration. In examining the alternative of not passing the bill, the city manager\nstated that \"[ t] he City Council could delay action on the ordinance and wait until the situation\npresented\n\na clear picture\n\nof the\n\nfull extent of the nature of the emergency. i4 Mr. Allen argued\n\nthat this language reflects that there was no true emergency in the City as of March 12, 2020.\nIt is undisputed that the City Council did not provide at least 48 hours' advance\nnotice of its March 13, 2020, meeting as required by section 2. 02(a) of OMA, unless the meeting\nwas \"\n\nheld in the event\n\nthe event of a bonafide emergency.\"\n\nOMA does not define the phrase\n\nbonafide emergency,\"\n\nand no Illinois reviewing court has addressed the issue of what\nfor purposes of section 2. 02(a). Yet, an \" emergency\" is\ndefined as \" an unforeseen combination of circumstances or the resulting state that calls for\nimmediate action.\" (Emphasis added.) Webster's Third New International Dictionary, 741\nconstitutes\n\na\n\nbona fide emergency\n\n1993).\n\nZGubernational\n\nDisaster Proclamation (March 9, 2020), available at\n\nhttps:// www2. illinois. gov/ sites/ gov/ Documents/ CoronavirusDisasterProc-\n\n3- 12- 2020. pdf (last visited June 5, 2020).\n\n3E - mail from Kirk Allen to the Public Access Bureau (May 17, 2020).\nCity of Champaign,\n2020),\n\nat 3.\n\nReport to\n\nCity Council\n\nfrom\n\nDorothy Ann David, City Manager (March\n\nBased on this definition, the Public Access Bureau has previously determined that\nunanticipated circumstances requiring immediate action that would justify providing less than\n48 hours' notice [ ]\"\nare necessary for a meeting to qualify as one held in the event of a bona fide\nemergency. (Emphasis added.)\n111. Att' y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013,\nat 4. In that matter, this office rejected a public body's assertion that an account deficit that could\nhave resulted in the public body failing to meet payroll constituted a \" bona fide emergency\"\nunder section 2. 02(a), partly because the \" situation that precipitated\" the meeting \" was clearly\nforeseeable.\"\n111. Att'y Gen. PAC Req. Rev. Ltr. 23656, at 4; see also River Road Neighborhood\nAss' n v. South Texas Sports, 720 S. W. 2d 551, 557 (Tex. App. 1986) (\" The mere necessity for\nquick actiondoes not constitute an emergency where the situation calling for such action is one\nwhich reasonably should have been anticipated.\").\nThis office concludes that the circumstances surrounding the COVID- 19\npandemic as of March 12, 2020, entailed a bona fide emergency in the City that was sufficient to\njustify an emergency City Council meeting with less than 48 hours' notice. On that date, public\nbodies across the State were taking swift measures to react to the COVID- 19 pandemic in light\nof its rapid spread and devastating impact. The uncertainty and severity involved in the\nimmediate action. Even if the City\npandemic presented unanticipated circumstances warranting\ndid not have any active COVID- 19 cases as of March 12, 2020, the potential for an outbreak of a\nfatal, highly communicable, disease warranted emergency preparations. Further, the language\nfrom the city manager's report to the City Council does not support Mr. Allen's arguments; the\n\nreport as a whole is clear that the pandemic created an emergency for the City, and the\nreferenced language simply addresses the possibility of waiting until there was a more\ncomprehensive understanding of the emergency. Under these unprecedented circumstances, this\n\noffice concludes that the City Council did not violate OMA by holding an emergency meeting\nwith less than 48 hours' advance notice.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at (312) 814- 4461, or\nby e- mail at jsternecky@atg. state. il. us. This letter serves to close this file.\nVery truly yours,\n\nJANE STERNECKY\n\nAssistant Attorney General\nPublic\n\n62712 o 202 notice proper mun\n\nAccess Bureau"}
{"id":1331,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-09-11","case_number":null,"request_numbers":["62981"],"title":"Chicago City Council violated Open Meetings Act by holding remote meetings without public access","filename":"62981, issued September 11, 2020.pdf","rel_path":null,"word_count":3619,"summary":"The PAC investigated whether the Chicago City Council violated the Open Meetings Act by holding conference call gatherings without public notice or access. The PAC determined that the City Council violated OMA requirements regarding these gatherings.","plain_summary":"A reporter alleged that the Chicago City Council held private conference calls during the COVID-19 pandemic without notifying the public or allowing them to listen in. The Attorney General's office agreed, finding that these meetings violated the Open Meetings Act because they were not properly opened to the public. This serves as a reminder that government bodies must follow transparency laws even when conducting business remotely.","holding":"The Chicago City Council violated the Open Meetings Act by failing to provide public notice and access for conference call gatherings held on March 26, March 30, and April 6, 2020.","legal_question":"Whether the Chicago City Council's conference call gatherings during the COVID-19 pandemic constituted 'meetings' under the Open Meetings Act that required public notice and access.","disposition":"violation_found","primary_statute":["5 ILCS 120/2","5 ILCS 120/2.01","5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Chicago City Council","requesting_party":"Mr. Mick Dumke, ProPublica Illinois","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The legality of Chicago City Council conference call gatherings held without public notice or access during the COVID-19 pandemic.","ocr_status":"ok","ocr_quality":94.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/62981, issued September 11, 2020.pdf","sha256":"a57cbc0522c57c01d9113856c8c78bace540dae840be67d2adc49324d7bbe729","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","public notice","open meetings act","city council","transparency"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAO.UL\nATTORNEY\n\nGENERAL\n\nSeptember 11, 2020\n\nVia electronic mail\n\nMr. Mick Dumke\nReporter\nProPublica Illinois\n\nmick d'umke@propublica. org\nVia electronic. mail\n\nMr.' Jeffrey C. B. Levine\nDeputy Corporation Counsel\nCity of Chicago, Department of Law\n[street address redacted for site publication -- see original PDF]\njeffreyaevine@cityofchicago. org\nRE: OMA Request for Review —2020 PAC 62981\nDear Mr: Dumke and Mr. Levine:\n\nThis determinationis issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City Council ( Council) of the City of Chicago ( City) violated the\nrequirements of OMA in connection with conference call gatherings of members of the Council\non March 26, 2020, March 30, 2020, and April 6, 2020.\n\nBACKGROUND\n\nOn May 13, 2020, this office received a Request for Review from Mr. Mick\n\nDumke, on behalf of ProPublica Illinois, alleging that the Council gathered by video and/ or\naudio conference in violation of OMA on March 26, 2020, March 30, 2020, April 6; 2020, and\n\nMay 8, 2020. In particular, Mr. Dumke alleged the Council' s gatherings were not open to the\nof the\n\nOn May 18, 2020, this office\nsent a copy of the Request for Review to the Council and requested that it or its representative\n\npublic\n\nand\n\nno\n\nnotice\n\nmeetings\n\nwas\n\nprovided\n\nto the public.\n\nprovide a written response to the allegations in the Request for Review. The Public Access\n\n500 South Second\n100 West\n601\n\nSouth\n\nStreet, Springfield,\n\nRandolph\n\nUniversity\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois\n\n62901 • (\n\n618)\n\n529- 6400 •\n\nTTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember\n\n11, 2020\n\nPage 2\n\nBureau did not receive a response to its letter. On June 8, 2020, this office sent a second copy of\nthe Request for Review to the Council and requested that it respond to Mr. Dumke' s allegations.\n\nOn June 26, 2020, the Public Access Bureau received the Council' s written answer and\nsummaries of the discussions during the gatherings.\nOn June 29, 2020, this office forwarded a\n\ncopy of the Council' s answer to Mr. Dumke; he replied the same day.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any\n\n5 ILCS 120/ 1 ( West 2018). \"\n\nway.\"\n\nThe Open Meetings\n\nAct provides that\n\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that \"[a]ll.\nmeetings of public bodies shall be open to the public unless excepted in subsection (c) and closed\nin accordance\n\nwith\n\nSection 2a.\"\n\nSection 1. 02 ( 5 ILCS 120/ 1. 02 ( West 2018)) defines a\n\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic\n\nmeans ( such as, without\n\nlimitation; electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 - member'\n\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business.\nIf a gathering of a majority of a quorum of public body members is determined to be a\nmeeting,'.\" then all the requirements of OMA apply, including proper advance posting of notice\nan agenda ( 5 ILCS 120/ 2. 02 ( West 2018)),\nholding the meeting at a specified time and place\n\nand\n\nthat\n\nis convenient\n\nallowing\n\npublic\n\nand\n\nopen\n\ncomment (\n\nto the\n\npublic (\n\n5 ILCS 120/ 2.01 ( West 2018)),\n\nkeeping minutes, and\n\n5 ILCS 120/ 2. 06( a), ( g) ( West 2018)).\n\nThe requirements of OMA are not automatically triggered when a majority of a\nquorum or a quorum of a public body attends a gathering. See University Professionals of\nIllinois v. Stukel, 344 Ill. App. 3d 856, 868 ( 1st Dist. 2003) ( OMA is not \" triggered every time\npublic\n\nofficials\n\nmeet\n\nand\n\nconverse\"). \"\n\nRather, the Act is designed\n\nto prohibit\n\nsecret\n\ndeliberation\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember 11, 2020\nPage 3\n\nand action on business which properly should be discussed in a public forum due to its potential\nimpact\n\non\n\nthe public.\"\n\nPeople ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 ( 1980);\n\nsee\n\nalso\n\nNabhani v. Coglianese, 552 F. Supp. 657, 660- 61 ( N.D. Ill. 1982):\nA \" meeting\" under the Act, has been variously described as a\n\ngathering \" designed to discuss or reach an accord with regard to\npublic business,\"[\nexchange\n\nof\n\ncitation],\n\nor as \"'\n\nfacts preliminary\n\ncollective discussion... and\n\nto the\n\nultimate\n\ndecision.\"' [ Citation]\n\nThird New International Dictionary ( 1976) defines \" deliberate\" as\nfollows: \" to ponder or think about with measured careful\n\nconsideration and often with formal discussion before reaching a\ndecision or conclusion.\"\n\nThe Attorney General has stated that \" whether a gathering falls within the\ndefinition of meeting as used in the Act, would depend upon the peculiar facts in each situation.\"\n\nIll. Att' y .Gen. Op. No. S- 726, issued March 22, 1974, at 126. The Attorney General has also\nnoted that \"[ i] n theory, there is no absolute\n\nprohibition against the members of a public body\nattending an ' informational meeting' without triggering the application of' OMA, as long as the\nmembers do not make \"[\n\nd] eliberational statements\" or engage in the discussion of public\n\nbusiness amongst themselves.\n\nIll. Att' y Gen.\n\nOp. No. 95- 004, issued July 14, 1995, at 10- 11. In\n\nthat opinion, the Attorney General concluded that the \" mere fact that a majority of a quorum of\nthe members of a public body attend and participate in a bona fide presentation on new\nlegislative developments in an area of public concern\" does not make a gathering subject to\n\nOMA, but that the extensive discussions of public business by members of two county boards\nduring the presentation\n\ndid trigger\n\nthe requirements\n\nof\n\nOMA. ( Emphasis in original.)\n\nIll. Att' y\n\nGeni Op. No. 95- 004, at 10- 11; see also Nabhani, 552 F. Supp. at 661 ( a gathering does not\n\nconstitute a meeting for purposes of OMA when there is \" no examining or weighing of reasons\nfor or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt\nto reach accord on a specific matter of public business.\").\n\nIn his Request for Review, Mr. Dumke alleged that the mayor, City officials, and\nthe members of the Council gathered to hold non- public \" briefings\" by video or telephone\nconference where information was shared and aldermen \" ask questions and make suggestions,\n\nand discussions and debates about [ C] ity policies often ensue among aldermen, the mayor and\nmembers of her team.\"'\n\nIn its response to this office, the Council acknowledged\n\nthat the mayor\n\nand employees in her administration held conference calls concerning the COVID- 19 pandemic\nwith a quorum or majority of a quorum of the Council on March 26, 2020, March 30, 2020, and\n\n1E -mail from Mick Dumke, Reporter, ProPublica Illinois, to Public Access, Office of the Attorney\nGeneral (\n\nMay\n\n13, 2020).\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember 1. 1, 2020\nPage 4\n\nApril 6, 2020. 2 ' The Council characterized\n\nthe gatherings\n\nas \"\n\nbriefings,\"\n\nasserting the\n\nrequirements of OMA did not apply because ( 1) the alderman did not participate in the\ngatherings\n\nin a legislative capacity; ( 2) no deliberation\n\noccurred;\n\nand ( 3) the matters discussed\n\nwere not \" public business\" as that term is used in section 1. 02 of OMA. In particular, the\n\nCouncil asserted that \" the aldermen participated in the calls as community representatives, not as\nlegislators. i3 In addition, the Council argued that the calls were not \" meetings\" subject to OMA\n\nbecause the aldermen participating did not deliberate on legislative matters. In his reply, Mr.\nDumke disputed the Council' s assertion that aldermen must reach a consensus to deliberate on a\nmatter of public business. He asserted that the aldermen' s participation in the calls constituted\n\ndeliberation, and stated that the aldermen \" raise[ d] questions or concerns about comments the\nadministration or other aldermen had made. Aldermen offered both suggestions and critiques —\n\nsome 'of them accepted and some rejected at different points by the mayor, her aides, or other\naldermen. i4\n\nThe Council asserted that the aldermen participating on the call did so as as\ncommunity- based first responders\" to receive \" the most current and relevant information to share\n\nwith their constituents.\" 5 The Council argued that when aldermen gather for that purpose they\ndonot meet as a \" public body\" under OMA. Section 1. 02 of OMA defines a \" public body\" to\n\ninclude \" all legislative, executive, administrative or advisory bodies of the State, counties,\ntownships,\n\ncities, villages, incorporated\n\ncorporations,\n\nlegislative\n\nboards, bureaus,\n\ntowns, school districts and all other municipal\n\ncommittees\n\nor commissions\n\nbody of the City, and \" shall meet in accordance\n\nILCS 5/ 3. 1- 40- 5 ( West 2018).\n\nof this\nwith\n\nState[.]\"\n\nthe\n\nThe Council is the\n\nOpen Meetings Act.\" 65\n\nThe Public Access Bureau has consistently held that\n\nThe Council is comprised of fifty aldermen and the mayor, who is the presiding officer. A\nquorum of the Council is twenty- six aldermen, therefore a majority of a quorum is fourteen. The City' s response to\nthis office stated that attendance at the gatherings wasn' t recorded, but it appears from summaries of the discussions\n\nthat thirty- one aldermen attended the March 30, 2020, meeting, twenty- five attended the first March 26, 2020,\ngathering while nineteen attended a second gathering on the same day, and sixteen attended the April 6, 2020,\ngathering. The response asserted that only nine aldermen, which is not a majority of a quorum of the Council,\nparticipated in the May 8, 2020, conference call. In his reply, Mr. Dumke did not dispute the Council' s assertion\nthere was not a majority of a quorum of the aldermen present for that gathering. Consequently, the available\n\ninformation indicates that the May 8, 2020, conference call did not constitute a meeting subject to the requirements\nof OMA.\n\n3Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 2.\n4E - mail from Mick Dumke, Reporter, ProPublica Illinois, to Lorraine Dunham, [ Paralegal], Public\nAccess\n\nBureau ( June 29, 2020).\n\n5Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto Matt Hartman,\n\nAssistant\n\nAttorney General,\n\nPublic\n\nAccess\n\nBureau ( June 26, 2020),\n\nat 2.\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember\n\n11; 2020\n\nPage 5!\n\ncommnications involving less than a majority of a quorum of the members of a public body are.\nnot meetings subject to the requirements of OMA. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr.\n\n248271, issued June 8, 2015, at 2 ( e- mails exchanged by two members of a seven -member public\nbody did not constitute\n\nbody). However, when a majority of a quorum of\naldermen gather to participate in a discussion about the City' s response to a crisis such as the\na\n\nmeeting of a public\n\ncurrent pandemic, they do so as the legislative body of the City of Chicago even if they do not\nvote or\notherwise take final action on how to respond. See City of Champaign v. Madigan, 2013\nIL App ( 4th) 120662, ¶ 42, 992 N. E. 2d 629, 630 ( 2013) (\"[\nhave convened a city\n\nmembers\n\ncouncil\n\nmeeting ( or ' study\n\nO] nce the individual city council\nsession'),\n\nit can reasonably be said that\n\nthey are acting in their collective capacity as the 'public body' during the time the meeting is in\nsession.\").\n\nIf there were a distinction between members of the Council gathering as \" community\n\nrepresentatives\"\n\nrather than as legislators, it would be a distinction without a difference—\n\naldermen represent their constituents in the community by virtue of their positions as elected\nmembers of the Council, which is a legislative body. Consequently, this office concludes that\nthe aldermen gathered in their capacities as members of the Council and therefore constituted a\n\npublic body\" as that term is defined in FOIA.\nThe Council further' asserted that it did not hold \" meetings\" under OMA because\ndid not deliberate\n\nthe aldermen\n\ndid not discuss\n\nbusiness.\n\nSpecifically, the Council\nbody, such as the Council, \"' discussing public business' means\ndebating or voting on actual or potential legislation – no more, no less. i6 The Attorney General\nargued\n\nthat\n\nand\n\npublic\n\nfor a legislative\n\nhas stated, however, that \" discussing public business\" must be construed broadly, concluding\nthat ' [\n\nd] eliberation * * *\n\nexchange\n\nof\n\nconnotes not only collective discussion, but the collective acquisition and\n\nfacts preliminary to the ultimate decision.\"\n\nIll. Att'y Gen. Op. No. S- 726, issued\n\nMarch 22, 1974, at 125 ( quoting Sacramento Newspaper Guild v. Sacramento County Board of\nSupervisors,\n\n263 Cal. App. 2d 41, 47- 48,\n\n691)\n\nCal. Rptr. 480, 485 ( Cal. Ct. App. 1968)).\n\nIn the\n\nsame opinion, the Attorney General also quoted Sacramento Newspaper Guild for the\nproposition\n\nthat,\n\nt] here is rarely any purpose to a nonpublic pre -meeting conference\nexcept to conduct some part of the decisional process behind\n\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages, as well as the ultimate step of official action,\ncan an open meeting regulation frustrate these evasive devices.\nEmphasis\n\nI11. Att'y Gen. Op. No. S- 726, at 125 ( quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50, 69 Cal.\nadded.)\n\nRptr. at 487).\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto\n\nMatt Hartman,\n\nAssistant\n\nAttorney\n\nGeneral,\n\nPublic\n\nAccess\n\nBureau ( June 26, 2020),\n\nat 3.\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember\n\n11, 2020\n\nPage 6\n\nIn its response to this office, the Council stated that it addressed \" public safety,\neconomic recovery, housing assistance, and education initiatives already in effect, as well as\n7\ngeneral\ninformation regarding the pandemic[ ] [\nFootnotes omitted]\"\nduring the calls. The\nCouncil asserted that the purpose of the calls was for theadministration to provide updates on the\n\nCity' s COVID- 19 response, receive questions from aldermen, and answer those questions. The\nCity argued that \"[ a] ldermen did not have an opportunity to substantively discuss the\nadministration officials' remarks, to weigh or examine their proposals, or reach any consensus on\na course of action or decision as a\ngroup. ' 8 The Council also argued that the items discussed on\nthe call's were not \" public business\" of the Council under section 1. 02 of OMA.9 The Council\ncontinued to assert that only legislative considerations were the \" public business\" of the Council,\n\nand that nothing \" remotely within the legislative sphere\" was addressed during the calls)°\nWhere the language of a statute is clear and unambiguous, a reviewing body \" may\n\nnot depart from the plain language by reading into the statute exceptions, limitations, or\nconditions\n\nthat the\n\nlegislature did not express.\"\n\nHayashi v. Illinois Department of Financial and\n\nProfessional Regulation, 2014 IL 116023, ¶ 16, 25 N. E. 3d 570, 576 ( 2014).\n\nSuch clear and\n\nunambiguous language should be interpreted without resorting to aids of statutory construction.\nIn re B. L.S., 202 Ill. 2d 510, 515 ( 2002).\n\nThe General Assembly broadly defined \" meeting\" for purposes of OMA to\n\nencompass all discussions of \"public business\" attended by a sufficient number of members of a\npublic\n\ndefined\n\nbody for a majority of a quorum, or a quorum for five -member public bodies. \" Public\" is\nas \"[\n\nt] he people of a country or a community as a whole\" while \" business\" is defined as\n\nmatters that come before a deliberative assembly for its consideration and action, or for its\nwith a view to possible\naction in the future.\"\nBlack' s Law Dictionary ( 11th ed.\n\ninformation\n\n2019), available\n\nat\n\nWestlaw\n\nBLACKS.\n\nThus, \" public business\" includes not only those subjects\n\non which that public bodies take action during a gathering, but also the information exchanged\nrelating to matters that public bodies could potentially act upon in the future, regardless of\nwhether action concerning the information is ultimately taken.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 3.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 4.\n\n10Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto Matt Hartman,\n\nAssistant\n\nAttorney General,\n\nPublic Access\n\nBureau (\n\nJune 26, 2020),'\n\nat\n\n5.\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember 11, 2020\nPage 7\n\nIt undisputed that at least a majority of a quorum of the aldermen on the Council\nwere present on the conference calls on March 26, March 30, and April 6, 2020, and that issues\n\nconcerning the City's response to the COVID- 19 pandemic were discussed during the gatherings.\nThe Council' s response\n\nto this office stated that no legislative\n\nitems were discussed\n\nand no\n\nconsensuses was reached during the gatherings. However, as previously discussed, section 1 of\nOMA provides that the public shall be given advance notice and the opportunity to attend a\nmeeting where public business \" is discussed or acted upon in any way.\" It is clear from the\nsummaries of the calls provided for our confidential review that the purpose of the gatherings\n\nwas to discuss the City' s response to the pandemic and to allow the aldermen to express their\n\nthoughts and recommendations on how the response should proceed. Although the mayor may\nhave informed aldermen of certain unilateral actions that had already been taken and that the\nCouncil would not be acting upon, the City's management of and response to a public health\nthreat is critical public business of the City. Further, despite the Council' s assertion that nothing\n\nremotely within the legislative sphere\" was addressed during the calls,' 1 the Council\nsubsequently took final action on ordinances related to the pandemic. 12 Therefore, the March 26,\n2020, March 30, 2020, April 6, 2020, calls constituted \" meetings\" of the Council subject to the\nrequirements\n\nof OMA.\n\nAccordingly, based on the available information, this office concludes that, in\nconnection with March 26, 2020, March 30, 2020, April 6, 2020, conference calls, the Council\nviolated: (\n\nan\n\n1) section 2. 02 of OMA by holding the meetings without proper posting of notice and\n\n2) section 2. 01 of OMA by failing to hold the meeting at a specified time and place\nwas open to the public; ( 3) section 2. 06( a) of OMA by failing to keep minutes of the\n\nagenda; (\n\nthat\n\nmeeting; and ( 4) section 2. 06( g) of OMA by failing to provide an opportunity for public\ncomment.. To remedy this violation, the Public Access Bureau requests that the Council make\navailable for public inspection copies of the summaries of the March 26, 2020, March 30, 2020,\nApril 6, 2020, calls.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 5.\n\n12Journal of the Proceedings of the City Council of the City of Chicago, Illinois, Regular Meeting,\nApril 24, 2020, at 15041- 45 ( Council passed ordinance 02020- 2356, \" Authorization for Various City Departments\nto Institute Emergency Measures in Response to COVID- 19 Pandemic.\");\nJournal of the Proceedings of the City\nCouncil of the City of Chicago, Illinois, Regular Meeting, June 17, 2020, at 17879- 84 ( Council passed Ordinance\n02020- 3501, \" Establishment of Moratorium on Issuance of Notice of Termination of Tenancy for Failure to Pay\nRent Due to COVID-\n\n19 Impact.\").\n\n\fMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember 11, 2020\nPage 8\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does.\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 782- 9054, mhartman@atg. state. il. us, or the Springfield address on the first page of this\nletter.\n\nThis letter serves to close this file.\n\nVeryruly yours,\n\nA\n\nT HARTMAN\n\nAss stant Attorney General\nPublic Access Bureau\n62981\n\no\n\n2a meeting\n\n201 location 202 notice 206 minutes 206 pub comment improper\n\nmun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"City council conference call gatherings without public notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62981/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAO.UL\nATTORNEY\n\nGENERAL\n\nSeptember 11, 2020\n\nVia electronic mail\n\nMr. Mick Dumke\nReporter\nProPublica Illinois\n\nmick d'umke@propublica. org\nVia electronic. mail\n\nMr.' Jeffrey C. B. Levine\nDeputy Corporation Counsel\nCity of Chicago, Department of Law\n[street address redacted for site publication -- see original PDF]\njeffreyaevine@cityofchicago. org\nRE: OMA Request for Review —2020 PAC 62981\nDear Mr: Dumke and Mr. Levine:\n\nThis determinationis issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the City Council (Council) of the City of Chicago (City) violated the\nrequirements of OMA in connection with conference call gatherings of members of the Council\non March 26, 2020, March 30, 2020, and April 6, 2020.\n\nBACKGROUND\n\nOn May 13, 2020, this office received a Request for Review from Mr. Mick\n\nDumke, on behalf of ProPublica Illinois, alleging that the Council gathered by video and/ or\naudio conference in violation of OMA on March 26, 2020, March 30, 2020, April 6; 2020, and\n\nMay 8, 2020. In particular, Mr. Dumke alleged the Council's gatherings were not open to the\nof the\n\nOn May 18, 2020, this office\nsent a copy of the Request for Review to the Council and requested that it or its representative\n\npublic\n\nand\n\nno\n\nnotice\n\nmeetings\n\nwas\n\nprovided\n\nto the public.\n\nprovide a written response to the allegations in the Request for Review. The Public Access\n\n500 South Second\n100 West\n601\n\nSouth\n\nStreet, Springfield,\n\nRandolph\n\nUniversity\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nIllinois 62701 • (217) 782- 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n\nIllinois 60601 • (312) 814- 3000 • TTY: (800) 964- 3013 • Fax: (312) 814- 3806\n\nIllinois\n\n62901 • (618)\n\nBureau did not receive a response to its letter. On June 8, 2020, this office sent a second copy of\nthe Request for Review to the Council and requested that it respond to Mr. Dumke's allegations.\n\nOn June 26, 2020, the Public Access Bureau received the Council's written answer and\nsummaries of the discussions during the gatherings.\nOn June 29, 2020, this office forwarded a\n\ncopy of the Council's answer to Mr. Dumke; he replied the same day.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nupon\n\nin any\n\n5 ILCS 120/ 1 (West 2018). \"\n\nway.\"\n\nThe Open Meetings\n\nAct provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2018),\n\nas amended by Public Acts\n\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that \"[a]ll.\nmeetings of public bodies shall be open to the public unless excepted in subsection (c) and closed\nin accordance\n\nwith\n\nSection 2a.\"\n\nSection 1. 02 (5 ILCS 120/ 1. 02 (West 2018)) defines a\n\nmeeting\" as:\n\nA] ny gathering, whether in person or by video or audio\nconference,\n\ntelephone\n\ncall, electronic\n\nmeans (such as, without\n\nlimitation; electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 - member'\n\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business.\nIf a gathering of a majority of a quorum of public body members is determined to be a\nmeeting,'.\" then all the requirements of OMA apply, including proper advance posting of notice\nan agenda (5 ILCS 120/ 2. 02 (West 2018)),\nholding the meeting at a specified time and place\n\nand\n\nthat\n\nis convenient\n\nallowing\n\npublic\n\nand\n\nopen\n\ncomment (to the\n\npublic (5 ILCS 120/ 2.01 (West 2018)),\n\nkeeping minutes, and\n\n5 ILCS 120/ 2. 06(a), (g) (West 2018)).\n\nThe requirements of OMA are not automatically triggered when a majority of a\nquorum or a quorum of a public body attends a gathering. See University Professionals of\nIllinois v. Stukel, 344 Ill. App. 3d 856, 868 (1st Dist. 2003) (OMA is not \" triggered every time\npublic\n\nofficials\n\nmeet\n\nand\n\nconverse\"). \"\n\nand action on business which properly should be discussed in a public forum due to its potential\nimpact\n\non\n\nthe public.\"\n\nPeople ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980);\n\nsee\n\nalso\n\nNabhani v. Coglianese, 552 F. Supp. 657, 660- 61 (N.D. Ill. 1982):\nA \" meeting\" under the Act, has been variously described as a\n\ngathering \" designed to discuss or reach an accord with regard to\npublic business,\"[\nexchange\n\nof\n\ncitation],\n\nor as \"'\n\nfacts preliminary\n\ncollective discussion... and\n\nto the\n\nultimate\n\ndecision.\"' [ Citation]\n\nThird New International Dictionary (1976) defines \" deliberate\" as\nfollows: \" to ponder or think about with measured careful\n\nconsideration and often with formal discussion before reaching a\ndecision or conclusion.\"\n\nThe Attorney General has stated that \" whether a gathering falls within the\ndefinition of meeting as used in the Act, would depend upon the peculiar facts in each situation.\"\n\nIll. Att' y.Gen. Op. No. S- 726, issued March 22, 1974, at 126. The Attorney General has also\nnoted that \"[ i] n theory, there is no absolute\n\nprohibition against the members of a public body\nattending an ' informational meeting' without triggering the application of' OMA, as long as the\nmembers do not make \"[\n\nd] eliberational statements\" or engage in the discussion of public\n\nbusiness amongst themselves.\n\nIll. Att' y Gen.\n\nOp. No. 95- 004, issued July 14, 1995, at 10- 11. In\n\nthat opinion, the Attorney General concluded that the \" mere fact that a majority of a quorum of\nthe members of a public body attend and participate in a bona fide presentation on new\nlegislative developments in an area of public concern\" does not make a gathering subject to\n\nOMA, but that the extensive discussions of public business by members of two county boards\nduring the presentation\n\ndid trigger\n\nthe requirements\n\nof\n\nOMA. (Emphasis in original.)\n\nIll. Att' y\n\nGeni Op. No. 95- 004, at 10- 11; see also Nabhani, 552 F. Supp. at 661 (a gathering does not\n\nconstitute a meeting for purposes of OMA when there is \" no examining or weighing of reasons\nfor or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt\nto reach accord on a specific matter of public business.\").\n\nIn his Request for Review, Mr. Dumke alleged that the mayor, City officials, and\nthe members of the Council gathered to hold non- public \" briefings\" by video or telephone\nconference where information was shared and aldermen \" ask questions and make suggestions,\n\nand discussions and debates about [ C] ity policies often ensue among aldermen, the mayor and\nmembers of her team.\"'\n\nIn its response to this office, the Council acknowledged\n\nthat the mayor\n\nand employees in her administration held conference calls concerning the COVID- 19 pandemic\nwith a quorum or majority of a quorum of the Council on March 26, 2020, March 30, 2020, and\n\n1E -mail from Mick Dumke, Reporter, ProPublica Illinois, to Public Access, Office of the Attorney\nGeneral (May\n\n13, 2020).\n\nMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember 1. 1, 2020\nPage 4\n\nApril 6, 2020. 2 ' The Council characterized\n\nthe gatherings\n\nas \"\n\nbriefings,\"\n\nasserting the\n\nrequirements of OMA did not apply because (1) the alderman did not participate in the\ngatherings\n\nin a legislative capacity; (2) no deliberation\n\noccurred;\n\nand (3) the matters discussed\n\nwere not \" public business\" as that term is used in section 1. 02 of OMA. In particular, the\n\nCouncil asserted that \" the aldermen participated in the calls as community representatives, not as\nlegislators. i3 In addition, the Council argued that the calls were not \" meetings\" subject to OMA\n\nbecause the aldermen participating did not deliberate on legislative matters. In his reply, Mr.\nDumke disputed the Council's assertion that aldermen must reach a consensus to deliberate on a\nmatter of public business. He asserted that the aldermen's participation in the calls constituted\n\ndeliberation, and stated that the aldermen \" raise[ d] questions or concerns about comments the\nadministration or other aldermen had made. Aldermen offered both suggestions and critiques —\n\nsome 'of them accepted and some rejected at different points by the mayor, her aides, or other\naldermen. i4\n\nThe Council asserted that the aldermen participating on the call did so as as\ncommunity- based first responders\" to receive \" the most current and relevant information to share\n\nwith their constituents.\" 5 The Council argued that when aldermen gather for that purpose they\ndonot meet as a \" public body\" under OMA. Section 1. 02 of OMA defines a \" public body\" to\n\ninclude \" all legislative, executive, administrative or advisory bodies of the State, counties,\ntownships,\n\ncities, villages, incorporated\n\ncorporations,\n\nlegislative\n\nboards, bureaus,\n\ntowns, school districts and all other municipal\n\ncommittees\n\nor commissions\n\nbody of the City, and \" shall meet in accordance\n\nILCS 5/ 3. 1- 40- 5 (West 2018).\n\nof this\nwith\n\nState[.]\"\n\nthe\n\nThe Council is the\n\nOpen Meetings Act.\" 65\n\nThe Public Access Bureau has consistently held that\n\nThe Council is comprised of fifty aldermen and the mayor, who is the presiding officer. A\nquorum of the Council is twenty- six aldermen, therefore a majority of a quorum is fourteen. The City's response to\nthis office stated that attendance at the gatherings wasn' t recorded, but it appears from summaries of the discussions\n\nthat thirty- one aldermen attended the March 30, 2020, meeting, twenty- five attended the first March 26, 2020,\ngathering while nineteen attended a second gathering on the same day, and sixteen attended the April 6, 2020,\ngathering. The response asserted that only nine aldermen, which is not a majority of a quorum of the Council,\nparticipated in the May 8, 2020, conference call. In his reply, Mr. Dumke did not dispute the Council's assertion\nthere was not a majority of a quorum of the aldermen present for that gathering. Consequently, the available\n\ninformation indicates that the May 8, 2020, conference call did not constitute a meeting subject to the requirements\nof OMA.\n\n3 Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau (June 26, 2020), at 2.\n4E - mail from Mick Dumke, Reporter, ProPublica Illinois, to Lorraine Dunham, [ Paralegal], Public\nAccess\n\nBureau (June 29, 2020).\n\n5 Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto Matt Hartman,\n\nAssistant\n\nAttorney General,\n\nPublic\n\nAccess\n\nBureau (June 26, 2020),\n\nat 2.\n\nMr. Mick Dumke\n\nMr. Jeffrey C. B. Levine\nSeptember\n\n11; 2020\n\nPage 5!\n\ncommnications involving less than a majority of a quorum of the members of a public body are.\nnot meetings subject to the requirements of OMA. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr.\n\n248271, issued June 8, 2015, at 2 (e- mails exchanged by two members of a seven -member public\nbody did not constitute\n\nbody). However, when a majority of a quorum of\naldermen gather to participate in a discussion about the City's response to a crisis such as the\na\n\nmeeting of a public\n\ncurrent pandemic, they do so as the legislative body of the City of Chicago even if they do not\nvote or\notherwise take final action on how to respond. See City of Champaign v. Madigan, 2013\nIL App (4th) 120662, ¶ 42, 992 N. E. 2d 629, 630 (2013) (\"[\nhave convened a city\n\nmembers\n\ncouncil\n\nmeeting (or ' study\n\nO] nce the individual city council\nsession'),\n\nit can reasonably be said that\n\nthey are acting in their collective capacity as the 'public body' during the time the meeting is in\nsession.\").\n\nIf there were a distinction between members of the Council gathering as \" community\n\nrepresentatives\"\n\nrather than as legislators, it would be a distinction without a difference—\n\naldermen represent their constituents in the community by virtue of their positions as elected\nmembers of the Council, which is a legislative body. Consequently, this office concludes that\nthe aldermen gathered in their capacities as members of the Council and therefore constituted a\n\npublic body\" as that term is defined in FOIA.\nThe Council further' asserted that it did not hold \" meetings\" under OMA because\ndid not deliberate\n\nthe aldermen\n\ndid not discuss\n\nbusiness.\n\nSpecifically, the Council\nbody, such as the Council, \"' discussing public business' means\ndebating or voting on actual or potential legislation – no more, no less. i6 The Attorney General\nargued\n\nthat\n\nand\n\npublic\n\nfor a legislative\n\nhas stated, however, that \" discussing public business\" must be construed broadly, concluding\nthat ' [\n\nd] eliberation * * *\n\nexchange\n\nof\n\nconnotes not only collective discussion, but the collective acquisition and\n\nfacts preliminary to the ultimate decision.\"\n\nIll. Att'y Gen. Op. No. S- 726, issued\n\nMarch 22, 1974, at 125 (quoting Sacramento Newspaper Guild v. Sacramento County Board of\nSupervisors,\n\n263 Cal. App. 2d 41, 47- 48,\n\n691)\n\nCal. Rptr. 480, 485 (Cal. Ct. App. 1968)).\n\nIn the\n\nsame opinion, the Attorney General also quoted Sacramento Newspaper Guild for the\nproposition\n\nthat,\n\nt] here is rarely any purpose to a nonpublic pre -meeting conference\nexcept to conduct some part of the decisional process behind\n\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages, as well as the ultimate step of official action,\ncan an open meeting regulation frustrate these evasive devices.\nEmphasis\n\nI11. Att'y Gen. Op. No. S- 726, at 125 (quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50, 69 Cal.\nadded.)\n\nRptr. at 487).\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto\n\nMatt Hartman,\n\nAssistant\n\nAttorney\n\nGeneral,\n\nIn its response to this office, the Council stated that it addressed \" public safety,\neconomic recovery, housing assistance, and education initiatives already in effect, as well as\n7\ngeneral\ninformation regarding the pandemic[ ] [\nFootnotes omitted]\"\nduring the calls. The\nCouncil asserted that the purpose of the calls was for theadministration to provide updates on the\n\nCity's COVID- 19 response, receive questions from aldermen, and answer those questions. The\nCity argued that \"[ a] ldermen did not have an opportunity to substantively discuss the\nadministration officials' remarks, to weigh or examine their proposals, or reach any consensus on\na course of action or decision as a\ngroup. ' 8 The Council also argued that the items discussed on\nthe call's were not \" public business\" of the Council under section 1. 02 of OMA.9 The Council\ncontinued to assert that only legislative considerations were the \" public business\" of the Council,\n\nand that nothing \" remotely within the legislative sphere\" was addressed during the calls)°\nWhere the language of a statute is clear and unambiguous, a reviewing body \" may\n\nnot depart from the plain language by reading into the statute exceptions, limitations, or\nconditions\n\nthat the\n\nlegislature did not express.\"\n\nHayashi v. Illinois Department of Financial and\n\nProfessional Regulation, 2014 IL 116023, ¶ 16, 25 N. E. 3d 570, 576 (2014).\n\nSuch clear and\n\nunambiguous language should be interpreted without resorting to aids of statutory construction.\nIn re B. L.S., 202 Ill. 2d 510, 515 (2002).\n\nThe General Assembly broadly defined \" meeting\" for purposes of OMA to\n\nencompass all discussions of \"public business\" attended by a sufficient number of members of a\npublic\n\ndefined\n\nbody for a majority of a quorum, or a quorum for five -member public bodies. \" Public\" is\nas \"[\n\nt] he people of a country or a community as a whole\" while \" business\" is defined as\n\nmatters that come before a deliberative assembly for its consideration and action, or for its\nwith a view to possible\naction in the future.\"\nBlack's Law Dictionary (11th ed.\n\ninformation\n\n2019), available\n\nat\n\nWestlaw\n\nBLACKS.\n\nThus, \" public business\" includes not only those subjects\n\non which that public bodies take action during a gathering, but also the information exchanged\nrelating to matters that public bodies could potentially act upon in the future, regardless of\nwhether action concerning the information is ultimately taken.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau (June 26, 2020), at 3.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau (June 26, 2020), at 4.\n\n10 Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago\n\nto Matt Hartman,\n\nAssistant\n\nAttorney General,\n\nIt undisputed that at least a majority of a quorum of the aldermen on the Council\nwere present on the conference calls on March 26, March 30, and April 6, 2020, and that issues\n\nconcerning the City's response to the COVID- 19 pandemic were discussed during the gatherings.\nThe Council's response\n\nto this office stated that no legislative\n\nitems were discussed\n\nand no\n\nconsensuses was reached during the gatherings. However, as previously discussed, section 1 of\nOMA provides that the public shall be given advance notice and the opportunity to attend a\nmeeting where public business \" is discussed or acted upon in any way.\" It is clear from the\nsummaries of the calls provided for our confidential review that the purpose of the gatherings\n\nwas to discuss the City's response to the pandemic and to allow the aldermen to express their\n\nthoughts and recommendations on how the response should proceed. Although the mayor may\nhave informed aldermen of certain unilateral actions that had already been taken and that the\nCouncil would not be acting upon, the City's management of and response to a public health\nthreat is critical public business of the City. Further, despite the Council's assertion that nothing\n\nremotely within the legislative sphere\" was addressed during the calls,' 1 the Council\nsubsequently took final action on ordinances related to the pandemic. 12 Therefore, the March 26,\n2020, March 30, 2020, April 6, 2020, calls constituted \" meetings\" of the Council subject to the\nrequirements\n\nof OMA.\n\nAccordingly, based on the available information, this office concludes that, in\nconnection with March 26, 2020, March 30, 2020, April 6, 2020, conference calls, the Council\nviolated: (an\n\n1) section 2. 02 of OMA by holding the meetings without proper posting of notice and\n\n2) section 2. 01 of OMA by failing to hold the meeting at a specified time and place\nwas open to the public; (3) section 2. 06(a) of OMA by failing to keep minutes of the\n\nagenda; (that\n\nmeeting; and (4) section 2. 06(g) of OMA by failing to provide an opportunity for public\ncomment.. To remedy this violation, the Public Access Bureau requests that the Council make\navailable for public inspection copies of the summaries of the March 26, 2020, March 30, 2020,\nApril 6, 2020, calls.\n\nLetter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of\nChicago to Matt Hartman, Assistant Attorney General, Public Access Bureau (June 26, 2020), at 5.\n\n12 Journal of the Proceedings of the City Council of the City of Chicago, Illinois, Regular Meeting,\nApril 24, 2020, at 15041- 45 (Council passed ordinance 02020- 2356, \" Authorization for Various City Departments\nto Institute Emergency Measures in Response to COVID- 19 Pandemic.\");\nJournal of the Proceedings of the City\nCouncil of the City of Chicago, Illinois, Regular Meeting, June 17, 2020, at 17879- 84 (Council passed Ordinance\n02020- 3501, \" Establishment of Moratorium on Issuance of Notice of Termination of Tenancy for Failure to Pay\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does.\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n217) 782- 9054, mhartman@atg. state. il. us, or the Springfield address on the first page of this\nletter.\n\nThis letter serves to close this file.\n\nVeryruly yours,\n\nA\n\nT HARTMAN\n\nAss stant Attorney General\nPublic Access Bureau\n62981\n\no\n\n2a meeting\n\n201 location 202 notice 206 minutes 206 pub comment improper\n\nmun"}
{"id":1332,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-07-29","case_number":null,"request_numbers":["63048"],"title":"City of Benld City Council violated OMA by taking final action on matter not on agenda","filename":"63048, issued July 29, 2020.pdf","rel_path":null,"word_count":1152,"summary":"A requester alleged that the Benld City Council violated the Open Meetings Act by approving the sale of police equipment without including the item on the meeting agenda. The PAC determined that the City Council failed to provide proper notice of the action, but concluded that no further action was required because the Council later ratified the sale with proper notice.","plain_summary":"A citizen complained that the Benld City Council voted to sell police equipment during a meeting without listing that topic on the public agenda beforehand. The Attorney General's office agreed that this violated the Open Meetings Act, which requires public bodies to give advance notice of the topics they plan to vote on. However, because the Council later held a new vote on the same issue after properly listing it on a future agenda, the PAC decided no further action was needed.","holding":"The City Council violated section 2.02(c) of the Open Meetings Act by taking final action on a matter not included on the meeting agenda.","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by taking final action on a matter not included on the meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Benld City Council","requesting_party":"Mr. Rick Verticchio","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The City Council approved the sale of police equipment without providing advance notice of the action on the meeting agenda.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/63048, issued July 29, 2020.pdf","sha256":"8cc2183ea940c52620f790927ad7559da5b3ddba654a4c40e4a6ed0d694ad284","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","Open Meetings Act","final action"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nJuly 29, 2020\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Rick Verticchio\nVerticchio &\n\nVerticchio\n\n[street address redacted for site publication -- see original PDF]\ngillespie@verticchiolaw.\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review — 2020 PAC 63048\n\nand Mr. Verticchio:\n\nThis determination\n\nis issued pursuant to section 3. 5( e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nOn May 19, 2020, this office received a Request for Review in which\n\nalleged that the City of Benld City Council approved the sale of police\nequipment to the City of Gillespie at its May 18, 2020, meeting without including advance notice\nof that action on the meeting agenda.\n\nOn May 22, 2020, this office sent a copy of the Request for Review to the\nCity Council and asked it to respond to\nallegation and to identify the agenda item\nthat contained the general subject matter of the action concerning sale of the equipment. We also\nasked the City Council to provide copies of the agenda, minutes, and recordings of the open\n\nsession portion of the May 18, 2020, meeting. In a letter dated June 3, 2020, counsel for the City\nCouncil responded to the allegations and in subsequent correspondence furnished the requested\n\nmaterials and supplemental information.\n\ndid not reply.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago,\n601 South University\n\nAve., Carbondale,\n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMr. Rick Verticchio\n\nJuly 29, 2020\nPage 2\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand\n\nthat their deliberations be conducted\n\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 ( 5th Dist. 1989).\n\nSection\n\n2. 02( c)\n\n5 ILCS 120/ 2. 02( c) ( West 2018)) provides, in pertinent\n\nof OMA (\n\nAny agenda required under this Section shall set forth the general subject matter of any\nthat will be the subject of final action at the meeting.\"\nor ordinance\nThe City Council' s\nresponse to this office did not dispute that the agenda for the May 18, 2020, meeting contained\n\npart: \"\n\nresolution\n\nno item concerning the sale of police equipment; instead, it asserted that the City Council did not\ntake final action to sell the equipment at that meeting. In particular, the City Council asserted\n\nthat it had \" authorized Mayor Kelly to negotiate with the City of Gillespie as to the sale of\nvarious police equipment that is no longer necessary for the City of Benld and to obtain\n\nassistance from the Chief of Police as to the fair market value of the equipment. i1 The City\nCouncil stated that although the minutes of the May 18, 2020, meeting had initially indicated that\n\na sale of police property had been authorized, those minutes were corrected by the City Council\nat its June 15, 2020, meeting to reflect that the vote at the May 18, 2020, meeting was not final\n\naction on a sale. The draft minutes of the June 15, 2020, meeting provided by the City Council\nfor this office' s review reflect that change.\n\nThose draft minutes also indicate that at the June 15,\n\n2020, meeting, the City Council approved a motion to sell police property to the City of Gillespie\nfor $ 7, 100. 00.\nFinal action\" under OMA is interpreted as the public vote on a resolution or\nordinance. \"\n\nUnder the plain language of section 2( e) of the Open Meetings Act, the public vote\n\nis not merely a ratification\n\nof a\n\nfinal action * * *\n\nit is the final action. Without the public vote,\n\nfinal action has occurred. \"\n\nBoard of Education of Springfield School District No. 186 v.\nAttorney General, 2017 IL 120343, ¶ 74, 77 N.E. 3d 625, 637 ( 2017).\nno\n\nThis office' s review of the recording of the May 18, 2020, meeting confirmed that\ntook final action on a resolution at that meeting.\nSpecifically, a member of the\n\nthe City Council\n\nCity Council stated that he was \" considering making a resolution for the police committee that\nthe City be authorized to sell excess police equipment at its fair market value to the City of\n\nLetter from Rick Verticchio,\nGeneral, Public Access Bureau ( June 3, 2020),\n\nVerticchio &\nat\n\n1.\n\nVerticchio, to Matt Hartman, Assistant Attorney\n\n\fMr. Rick Verticchio\n\nJuly 29, 2020\nPage 3\n\nGillespie who is providing us police services. i2 Another member made that motion and it was\nseconded.\n\nThe\n\nclerk\n\nthen restated the motion\n\nas: \"\n\nResolution to sell police equipment to\n\nGillespiei3 and conducted a roll call vote, which resulted in the resolution being unanimously\nadopted. Although the vote taken by the City Council was to authorize the City to sell\nequipment at fair market value rather than to complete the sale, it was nonetheless\n\nfinal action on\n\na resolution proposed at the meeting. We understand the City Council' s point that the May 18,\n\n2020, vote was to authorize the process of selling the equipment, rather than finalizing the sale;\nhowever, the City Council chose to propose a resolution to that effect and take a public vote, thus\ntaking a \" final action.\"\n\nIt is undisputed that the meeting agenda does not reference this resolution\n\nin any manner. Accordingly, this office concludes that the City Council violated section 2. 02( c)\n\nby approving a resolution authorizing a sale of police equipment at fair market value without\nproviding advance notice of the general subject matter of that final action on the May 18, 2020,\n\nmeeting agenda. Because the City Council subsequently took final action to sell the equipment\nat a fixed price after providing advance notice of that action on the June 15, 2020, meeting\n\nagenda, this office concludes that no further action is necessary to remedy this violation.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, please\ncontact me at ( 217) 782- 9054.\n\nVery truly yours,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n63048 o 202 notice improper mun\n\n2Benld City Council, Open Session Meeting, City Council, May 18, 2020, Audio File, Part 2 ( on\nfile with author),\n\nat 11: 07- 11: 27.\n\nfile\n\nat\n\n3Benld City Council, Open Session Meeting, City Council, May 18, 2020, Audio File, Part 2 ( on\nwith\n\nauthor),\n\n11: 39- 11: 42.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's final action on an unagendized item","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-63048/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nJuly 29, 2020\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Rick Verticchio\nVerticchio &\n\nVerticchio\n\n[street address redacted for site publication -- see original PDF]\ngillespie@verticchiolaw.\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review — 2020 PAC 63048\n\nand Mr. Verticchio:\n\nThis determination\n\nis issued pursuant to section 3. 5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nOn May 19, 2020, this office received a Request for Review in which\n\nalleged that the City of Benld City Council approved the sale of police\nequipment to the City of Gillespie at its May 18, 2020, meeting without including advance notice\nof that action on the meeting agenda.\n\nOn May 22, 2020, this office sent a copy of the Request for Review to the\nCity Council and asked it to respond to\nallegation and to identify the agenda item\nthat contained the general subject matter of the action concerning sale of the equipment. We also\nasked the City Council to provide copies of the agenda, minutes, and recordings of the open\n\nsession portion of the May 18, 2020, meeting. In a letter dated June 3, 2020, counsel for the City\nCouncil responded to the allegations and in subsequent correspondence furnished the requested\n\nmaterials and supplemental information.\n\ndid not reply.\n\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand\n\nthat their deliberations be conducted\n\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 (5th Dist. 1989).\n\nSection\n\n2. 02(c)\n\n5 ILCS 120/ 2. 02(c) (West 2018)) provides, in pertinent\n\nof OMA (Any agenda required under this Section shall set forth the general subject matter of any\nthat will be the subject of final action at the meeting.\"\nor ordinance\nThe City Council's\nresponse to this office did not dispute that the agenda for the May 18, 2020, meeting contained\n\npart: \"\n\nresolution\n\nno item concerning the sale of police equipment; instead, it asserted that the City Council did not\ntake final action to sell the equipment at that meeting. In particular, the City Council asserted\n\nthat it had \" authorized Mayor Kelly to negotiate with the City of Gillespie as to the sale of\nvarious police equipment that is no longer necessary for the City of Benld and to obtain\n\nassistance from the Chief of Police as to the fair market value of the equipment. i1 The City\nCouncil stated that although the minutes of the May 18, 2020, meeting had initially indicated that\n\na sale of police property had been authorized, those minutes were corrected by the City Council\nat its June 15, 2020, meeting to reflect that the vote at the May 18, 2020, meeting was not final\n\naction on a sale. The draft minutes of the June 15, 2020, meeting provided by the City Council\nfor this office's review reflect that change.\n\nThose draft minutes also indicate that at the June 15,\n\n2020, meeting, the City Council approved a motion to sell police property to the City of Gillespie\nfor $ 7, 100. 00.\nFinal action\" under OMA is interpreted as the public vote on a resolution or\nordinance. \"\n\nUnder the plain language of section 2(e) of the Open Meetings Act, the public vote\n\nis not merely a ratification\n\nof a\n\nfinal action * * *\n\nit is the final action. Without the public vote,\n\nfinal action has occurred. \"\n\nBoard of Education of Springfield School District No. 186 v.\nAttorney General, 2017 IL 120343, ¶ 74, 77 N.E. 3d 625, 637 (2017).\nno\n\nThis office's review of the recording of the May 18, 2020, meeting confirmed that\ntook final action on a resolution at that meeting.\nSpecifically, a member of the\n\nthe City Council\n\nCity Council stated that he was \" considering making a resolution for the police committee that\nthe City be authorized to sell excess police equipment at its fair market value to the City of\n\nLetter from Rick Verticchio,\n\nGillespie who is providing us police services. i2 Another member made that motion and it was\nseconded.\n\nThe\n\nclerk\n\nthen restated the motion\n\nas: \"\n\nResolution to sell police equipment to\n\nGillespiei3 and conducted a roll call vote, which resulted in the resolution being unanimously\nadopted. Although the vote taken by the City Council was to authorize the City to sell\nequipment at fair market value rather than to complete the sale, it was nonetheless\n\nfinal action on\n\na resolution proposed at the meeting. We understand the City Council's point that the May 18,\n\n2020, vote was to authorize the process of selling the equipment, rather than finalizing the sale;\nhowever, the City Council chose to propose a resolution to that effect and take a public vote, thus\ntaking a \" final action.\"\n\nIt is undisputed that the meeting agenda does not reference this resolution\n\nin any manner. Accordingly, this office concludes that the City Council violated section 2. 02(c)\n\nby approving a resolution authorizing a sale of police equipment at fair market value without\nproviding advance notice of the general subject matter of that final action on the May 18, 2020,\n\nmeeting agenda. Because the City Council subsequently took final action to sell the equipment\nat a fixed price after providing advance notice of that action on the June 15, 2020, meeting\n\nagenda, this office concludes that no further action is necessary to remedy this violation.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, please\ncontact me at (217) 782- 9054.\n\nVery truly yours,\n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n63048 o 202 notice improper mun\n\n2 Benld City Council, Open Session Meeting, City Council, May 18, 2020, Audio File, Part 2 (on\nfile with author),\n\nat 11: 07- 11: 27.\n\nfile\n\nat\n\n3 Benld City Council, Open Session Meeting, City Council, May 18, 2020, Audio File, Part 2 (on\nwith\n\nauthor),\n\n11: 39- 11: 42."}
{"id":1333,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-06-16","case_number":null,"request_numbers":["63099"],"title":"O'Fallon City Council did not violate OMA on public comment limits","filename":"63099, issued June 16, 2020.pdf","rel_path":null,"word_count":1373,"summary":"A requester alleged that the O'Fallon City Council violated the Open Meetings Act by prematurely ending public comment periods and restricting the time allowed for specific speakers during a May 18, 2020, meeting. The PAC reviewed the meeting recording and determined that the City did not violate the Act.","plain_summary":"A citizen complained that the O'Fallon City Council cut off public speakers and unfairly limited their time to speak during a meeting. The Attorney General's office reviewed the video recording of the meeting and found that the Council followed the law and did not improperly silence the speakers. As a result, the complaint was dismissed and the case is closed.","holding":"The PAC determined that the City of O'Fallon did not violate the Open Meetings Act regarding the conduct of its public comment period.","legal_question":"Whether the City Council violated section 2.06(g) of the Open Meetings Act by allegedly restricting the duration and content of public comments during a public meeting.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of O'Fallon City Council","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint concerned the administration of public comment rules during a City Council meeting.","ocr_status":"reocr_tesseract","ocr_quality":91.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/63099, issued June 16, 2020.pdf","sha256":"9f89ce539768c9b0f74125d5b740b203b55e7b98a54f7da849118c0679f88d20","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","city council","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE\n\nOF THE ATTORNEY\nSTATE\n\nKWAME\n\nGENERAL\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAL\n\nJune 16, 2020\n\nVia electronic\n\nmail\n\nVia electronic\n\nmail\n\nThe Honorable Herb Roach\nMayor\n\nCity of O' Fallon\n255 South Lincoln\nO' Fallon,. Illinois\n\n62269\n\nhroach@ofallon. org\nRE:\n\nDear\n\nOMA Request\n\nfor Review -\n\n2020 PAC 63099\n\nand Mr. Roach:\n\nThis determination is issued pursuant to section 3. 5( b) of the Open Meetings Act\nOMA) ( 5' ILCS 120/ 3. 5( b) ( West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nhas determined that this Request for Review is unfounded.\n\nOn May 22, 2020,\n\nsubmitted a Request for Review\n\nalleging that the City Council ( Council) of the City of O' Fallon ( City) violated OMA during its\nMay 18, 2020, meeting by ( 1) prematurely terminating the time for public comment by\nand\n\nwhen they wished to cede a portion of their comment\nperiod to\nand ( 2) terminating\ncomments before he had spoken for the\nfull five minutes allowed by Council rules.\nSection\n\n2. 06( g)\n\nof OMA (\n\n5 ILCS 120/ 2. 06( g) ( West 2018)) provides\n\nthat \"[\n\na] ny\n\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nThis .office has previously determined that in order to warrant\nfurther action, a Request for Review concerning public comment must set forth facts indicating\n500 South Second Street, Springfield,\n\nIllinois 62701 • (\n\n217)\n\n782- 1090 •\n\nTTY: ( 877) 844- 5461 •\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 •\n601 South University\n\nAve., Carbondale, Illinois 62901 • ( 618)\n\nFax: ( 217)\n\n782- 7046\n\nFax: ( 312) 814- 3806\n\n529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable\n\nHerb Roach\n\nJune 16, 2020\nPage 2\n\nthat a member of the public attempted to address public officials during an open meeting but was\nimproperly restricted by the public body from doing so. See, e. g., Ill. Att' y Gen. PAC Req. Rev.\nLtr. 42017, issued June 1, 2016, at 1- 2 ( determining that a Request for Review alleging that a\n\nboard's public comment rules violated section 2. 06( g) of OMA did not warrant further inquiry\nbecause the Request for Review did not allege that anyone who attempted to address the board\n\nduring an open meeting was improperly denied an opportunity to speak).\n\nincluded an interne link to the May 18, 2020, Council meeting. This\noffice has reviewed those portions of the initial comment period where\n\nand\n\nspoke, as well as those portions of the second comment period where\n\nspoke. The video recording establishes that the, Mayor and two other individuals\nattended the meeting in Council chambers, while other Council members and members of the\npublic attended\nremotely.'\nThe video shows that during the initial public comment period,\naddressed the Council for five minutes. 2 After\nspoke,\naddressed\nthe Council for almost two minutes and at the end of his; comment said \" I am going to yield the\n\nrest of my time to\n\n3\n\nthe Council proceeded\n\nbegan speaking but his remarks were muted and\n\nto the next person to give public comment.\n\nNext,\n\naddressed\n\nthe Council for approximately three and a half minutes. At the end of her comments,\nstated \" I am going to end my time. * * *\nI am going to attempt to give the rest of my\ntime to\ni4\nbegan speaking but his remarks were muted again and the Council\nproceeded to the next person to give public comment.\n\nThe video establishes that the Council did not interrupt or end\nor\npublic comment time. Rather\nand\nended their own public\n\nDue to the rapid spread of COVID- 19 throughout the State of Illinois, the Governor issued\nexecutive\n\norders\n\nallowing\n\nmeeting\n\nof\n\npublic bodies\n\nto be\n\nheld remotely.\n\nSee Executive Order 2020- 07, § 6, issued\n\nMarch 16, 2020, at 3. This order has been extended. See, e. g., Executive Order No. 2020- 32, issued April 30, 2020\nextending the remote participation allowance through May 31, 2020).\n\n2City of O' Fallon City Council, Meeting, May 18, 2020, available at\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\nhttps://\n\nview. earthchannel.\n\ncom/\n\nPlayerController.\n\naspx?&\n\nPGD= ofallonil&\n\neID= 213;\n\ncomment time\n\n7: 35 and 12: 35.\n\n3City of O' Fallon City Council, Meeting, May 18, 2020, available at\nbetween\n\n17: 25 and\n\ncom/\n\nPlayerController.\n\naspx?&\n\nPGD= ofallonil&\n\neID= 213;\n\ncomment\n\ntime\n\noccurs\n\n19: 05.\n\n4City\n\nof\n\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\n19: 30\n\nand\n\nO' Fallon\ncom/\n\nCity Council, Meeting, May 18, 2020, available\n\nPlayerController.\n\n23: 06.\n\naspx?&\n\nPGD= ofallonil&\n\neID= 213;\n\nat\n\ncomment\n\ntime\n\n\fThe Honorable Herb Roach\nJune 16, 2020\nPage 3\n\ncomments when they expressed the desire to cede the rest of their time to speak to\n\nThe plain language of section 2. 06( g) of OMA provides an opportunity for people to address\npublic officials under the rules established and recorded by the public body. A public body may\n\nprescribe reasonable rules to govern meeting decorum and procedure, including time limits for\npublic\n\ncomment.\n\nSee Wright\n\nv.\n\nAnthony, 733 F. 2d 575; 576- 77 ( 8th Cir. 1984) ( five minute time\n\nlimit served a significant governmental interest in conserving time and in ensuring that others\nhad an opportunity to speak).\nwhich\n\nare\n\nminutes\n\navailable\n\non\n\nany\n\non\n\nThe City' s established and recorded rules for public comment,\n\nits website,\n\nprovide\n\nthat \"[\n\na] speaker shall speak no longer than five\n\ni5 The rules do not provide that speakers may donate their time or\n\nsubject[.]\n\nportions of their time to other speakers.\n\nand\n\nallowed an opportunity to address the Council.\nfor five minutes at the time\n\nand\n\neach were\n\nhad already addressed the Council\nattempted to yield their time to him.\n\nand\nchose not to speak for the full five minutes allotted. Accordingly, this\noffice is unable to conclude that\nor\nwere deprived of an opportunity to\naddress. the Council.\n\nTherefore, this office has determined that this allegation is unfounded.\n\nThe video also shows that the Council held a second period of public comment\n\ntoward the end of the meeting during which\n\nagain addressed the Council. 6\n\nalleges he asked why he was not allowed to speak during the remaining portions of\nand\n\ntime and when the Council did not answer, he called for a pointof order\n\nand then received a response from the Council. He alleges that that the Council did not provide\nhim a full five minutes to speak because this initial exchange was counted towards his allotted\n\nfive minutes. Section 2. 06( g) does not mandate that public bodies conduct a question and\nanswer session; rather, a public body must allow an opportunity during open meetings for \" any\nto address\"\n\nperson * * *\n\nthe public\n\nofficials\n\npresent. \"\n\nAddress\" used as a verb is defined as \" to\n\n7\n\ndirectly to.\" Thus, the plain language of section 2. 06( g) of OMA contemplates\nthe opportunity for citizens to express their views to mernbers of a public body. OMA does not\nspeak or write\n\nrequire any response by or answers from public officials.' Ill. Att'y Gen. PAC Req. Rev. Ltr.\n37391, issued January 11, 2016, at 7. Further, OMA does not require silence when speakers\nchoose to pose questions to public bodies rather than making comments. When a speaker.\n5City\nhttp:// library.\n\namlegal.\n\nof O' Fallon,\n\ncom/ nxt/\n\nCode\n\nof\n\nO' Fallon, Title III, § 30. 07( D)( 1)(\n\ngateway. dll/ Illinois/ ofallon/ cityofo%\n\nd) ( 2016),\n\navailable\n\nat\n\n2% 80% 99fallonillinoiscodeofordinances?\n\nf=te\n\nmplates$ fn= defaulf.htm$ 3. 0$ vid= amlegal: ofallon_ il.\n\n6City of O' Fallon City Council, Meeting, May 18, 2020, available at\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\ncom/\n\nPlayerController. aspx?& PGD= ofallonil&\n\neID= 213;\n\ncomment\n\ntime\n\n39: 08 and 44: 11.\n\nMerriam -Webster Dictionary, http:// www. merriam- webster. com/ dictionary/ address ( last visited\nApril 23, 2018).\n\n\fThe Honorable\n\nHerb Roach\n\nJune 16, 2020\nPage 4\n\ndemands an answer to a question, the public body does not infringe on the speaker' s statutory\nright to public comment by responding to the question. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n51623, issued May 18, 2018, at 4- 5 ( concluding public body did not violate OMA when it\ninterruptedspeaker\n\nto explain\n\nit would\n\nnot answer\n\nquestions).\n\nBased on our review of the\n\nrecording of the meeting, this office is unable to conclude that\nwas deprived of an\nopportunity to address the Council. Therefore, this office has determined that this allegation is\nalso unfounded.\n\nThis file is closed.\n\nPlease contact me at '( 312) 814- 5201 or the Chicago address\n\nlisted on the first page of this letter if you have questions.\n\nVery truly yours,\n\nSenior Assistant Attorney\nPublic\n\n63099 o unf mun\n\nAccess Bureau\n\n\f","full_text_pre_reocr":"OFFICE\n\nOF THE ATTORNEY\nSTATE\n\nKWAME\n\nGENERAL\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAL\n\nJune 16, 2020\n\nVia electronic\n\nmail\n\nVia electronic\n\nmail\n\nThe Honorable Herb Roach\nMayor\n\nCity of O' Fallon\n255 South Lincoln\nO' Fallon,. Illinois\n\n62269\n\nhroach@ofallon. org\nRE:\n\nDear\n\nOMA Request\n\nfor Review -\n\n2020 PAC 63099\n\nand Mr. Roach:\n\nThis determination is issued pursuant to section 3. 5(b) of the Open Meetings Act\nOMA) (5' ILCS 120/ 3. 5(b) (West 2018)).\n\nFor the reasons that follow, the Public Access Bureau\n\nhas determined that this Request for Review is unfounded.\n\nOn May 22, 2020,\n\nsubmitted a Request for Review\n\nalleging that the City Council (Council) of the City of O' Fallon (City) violated OMA during its\nMay 18, 2020, meeting by (1) prematurely terminating the time for public comment by\nand\n\nwhen they wished to cede a portion of their comment\nperiod to\nand (2) terminating\ncomments before he had spoken for the\nfull five minutes allowed by Council rules.\nSection\n\n2. 06(g)\n\nof OMA (5 ILCS 120/ 2. 06(g) (West 2018)) provides\n\nthat \"[\n\na] ny\n\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nThis.office has previously determined that in order to warrant\nfurther action, a Request for Review concerning public comment must set forth facts indicating\n\nthat a member of the public attempted to address public officials during an open meeting but was\nimproperly restricted by the public body from doing so. See, e. g., Ill. Att' y Gen. PAC Req. Rev.\nLtr. 42017, issued June 1, 2016, at 1- 2 (determining that a Request for Review alleging that a\n\nboard's public comment rules violated section 2. 06(g) of OMA did not warrant further inquiry\nbecause the Request for Review did not allege that anyone who attempted to address the board\n\nduring an open meeting was improperly denied an opportunity to speak).\n\nincluded an interne link to the May 18, 2020, Council meeting. This\noffice has reviewed those portions of the initial comment period where\n\nand\n\nspoke, as well as those portions of the second comment period where\n\nspoke. The video recording establishes that the, Mayor and two other individuals\nattended the meeting in Council chambers, while other Council members and members of the\npublic attended\nremotely.'\nThe video shows that during the initial public comment period,\naddressed the Council for five minutes. 2 After\nspoke,\naddressed\nthe Council for almost two minutes and at the end of his; comment said \" I am going to yield the\n\nrest of my time to\n\n3\n\nthe Council proceeded\n\nbegan speaking but his remarks were muted and\n\nto the next person to give public comment.\n\nNext,\n\naddressed\n\nthe Council for approximately three and a half minutes. At the end of her comments,\nstated \" I am going to end my time. * * *\nI am going to attempt to give the rest of my\ntime to\ni4\nbegan speaking but his remarks were muted again and the Council\nproceeded to the next person to give public comment.\n\nThe video establishes that the Council did not interrupt or end\nor\npublic comment time. Rather\nand\nended their own public\n\nDue to the rapid spread of COVID- 19 throughout the State of Illinois, the Governor issued\nexecutive\n\norders\n\nallowing\n\nmeeting\n\nof\n\npublic bodies\n\nto be\n\nheld remotely.\n\nSee Executive Order 2020- 07, § 6, issued\n\nMarch 16, 2020, at 3. This order has been extended. See, e. g., Executive Order No. 2020- 32, issued April 30, 2020\nextending the remote participation allowance through May 31, 2020).\n\n2 City of O' Fallon City Council, Meeting, May 18, 2020, available at\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\nhttps://\n\nview. earthchannel.\n\ncom/\n\nPlayerController.\n\naspx?&\n\nPGD= ofallonil&\n\neID= 213;\n\ncomment time\n\n7: 35 and 12: 35.\n\n3 City of O' Fallon City Council, Meeting, May 18, 2020, available at\nbetween\n\n17: 25 and\n\ncom/\n\nPlayerController.\n\naspx?&\n\nPGD= ofallonil&\n\neID= 213;\n\ncomment\n\ntime\n\noccurs\n\n19: 05.\n\n4 City\n\nof\n\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\n19: 30\n\nand\n\nO' Fallon\ncom/\n\nCity Council, Meeting, May 18, 2020, available\n\nPlayerController.\n\n23: 06.\n\naspx?&\n\ncomments when they expressed the desire to cede the rest of their time to speak to\n\nThe plain language of section 2. 06(g) of OMA provides an opportunity for people to address\npublic officials under the rules established and recorded by the public body. A public body may\n\nprescribe reasonable rules to govern meeting decorum and procedure, including time limits for\npublic\n\ncomment.\n\nSee Wright\n\nv.\n\nAnthony, 733 F. 2d 575; 576- 77 (8th Cir. 1984) (five minute time\n\nlimit served a significant governmental interest in conserving time and in ensuring that others\nhad an opportunity to speak).\nwhich\n\nare\n\nminutes\n\navailable\n\non\n\nany\n\non\n\nThe City's established and recorded rules for public comment,\n\nits website,\n\nprovide\n\nthat \"[\n\na] speaker shall speak no longer than five\n\ni5 The rules do not provide that speakers may donate their time or\n\nsubject[.]\n\nportions of their time to other speakers.\n\nand\n\nallowed an opportunity to address the Council.\nfor five minutes at the time\n\nand\n\neach were\n\nhad already addressed the Council\nattempted to yield their time to him.\n\nand\nchose not to speak for the full five minutes allotted. Accordingly, this\noffice is unable to conclude that\nor\nwere deprived of an opportunity to\naddress. the Council.\n\nTherefore, this office has determined that this allegation is unfounded.\n\nThe video also shows that the Council held a second period of public comment\n\ntoward the end of the meeting during which\n\nagain addressed the Council. 6\n\nalleges he asked why he was not allowed to speak during the remaining portions of\nand\n\ntime and when the Council did not answer, he called for a pointof order\n\nand then received a response from the Council. He alleges that that the Council did not provide\nhim a full five minutes to speak because this initial exchange was counted towards his allotted\n\nfive minutes. Section 2. 06(g) does not mandate that public bodies conduct a question and\nanswer session; rather, a public body must allow an opportunity during open meetings for \" any\nto address\"\n\nperson * * *\n\nthe public\n\nofficials\n\npresent. \"\n\nAddress\" used as a verb is defined as \" to\n\n7\n\ndirectly to.\" Thus, the plain language of section 2. 06(g) of OMA contemplates\nthe opportunity for citizens to express their views to mernbers of a public body. OMA does not\nspeak or write\n\nrequire any response by or answers from public officials.' Ill. Att'y Gen. PAC Req. Rev. Ltr.\n37391, issued January 11, 2016, at 7. Further, OMA does not require silence when speakers\nchoose to pose questions to public bodies rather than making comments. When a speaker.\n5 City\nhttp:// library.\n\namlegal.\n\nof O' Fallon,\n\ncom/ nxt/\n\nCode\n\nof\n\nO' Fallon, Title III, § 30. 07(D)(1)(gateway. dll/ Illinois/ ofallon/ cityofo%\n\nd) (2016),\n\navailable\n\nat\n\n2% 80% 99fallonillinoiscodeofordinances?\n\nf=te\n\nmplates$ fn= defaulf.htm$ 3. 0$ vid= amlegal: ofallon_ il.\n\n6 City of O' Fallon City Council, Meeting, May 18, 2020, available at\nhttps://\n\nview. earthchannel.\n\noccurs\n\nbetween\n\ncom/\n\nPlayerController. aspx?& PGD= ofallonil&\n\neID= 213;\n\ncomment\n\ntime\n\n39: 08 and 44: 11.\n\nMerriam -Webster Dictionary, http:// www. merriam- webster. com/ dictionary/ address (last visited\n\ndemands an answer to a question, the public body does not infringe on the speaker's statutory\nright to public comment by responding to the question. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n51623, issued May 18, 2018, at 4- 5 (concluding public body did not violate OMA when it\ninterruptedspeaker\n\nto explain\n\nit would\n\nnot answer\n\nquestions).\n\nBased on our review of the\n\nrecording of the meeting, this office is unable to conclude that\nwas deprived of an\nopportunity to address the Council. Therefore, this office has determined that this allegation is\nalso unfounded.\n\nThis file is closed.\n\nPlease contact me at '(312) 814- 5201 or the Chicago address\n\nlisted on the first page of this letter if you have questions.\n\nVery truly yours,\n\nSenior Assistant Attorney\nPublic\n\n63099 o unf mun\n\nAccess Bureau","plain_summary_pre_resummarize":null,"card_headline":"Public comment rules at a city council meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-63099/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 16, 2020\n\nVia electronic mail -\n\nVia electronic mail\n\nThe Honorable Herb Roach\nMayor... =~,\n\nCity of O'Fallon\n\n255 South Lincoln\nO'Fallon, Illinois 62269 |\nhroach@ofalion.org\n\n_ RE: OMA Request for Review ~ 2020 PAC 63099\n\nDear i and Mr. Roach:\n\n. This determination is issued pursuant to section 3.5(b) of the Open Meetings Act |\n(OMA) (5'ILCS 120/3.5(b) (West 2018)). For the reasons that follow, the Public Access Bureau |\nhas determined that this Request for Review is unfounded.\n\nOn May 22, 2020, ee ; submitted a Request for Review\nalleging that the City Council (Council) of the City of O' Fallon (City) violated OMA during its\nMay 18, 2020, meeting by (1) prematurely terminating the time for public comment by\n\nand when they wished to cede a portion of their comment\nperiod to 5 an terminating comments before he had spoken for the\nfull five minutes allowed by Council rules. .\n\nSection 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2018)) provides that \"[a]ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" This office has previously determined that in order to warrant\nfurther action, a Request for Review concerning public comment must set forth facts indicating\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-546] + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nThe Honorable Herb Roach\nJune 16, 2020\nPage 2 .\n\nthat a member of the public attempted to address public officials during an open meeting but was -\nimproperly restricted by the public body from doing so. See, e.g., Ill. Att'y Gen. PAC Req. Rev.\nLtr. 42017, issued June 1, 2016, at 1-2 (determining that a Request for Review alleging that a\nboard's public comment rules violated section 2.06(g) of OMA did not warrant further inquiry\nbecause the Request for Review did not allege that anyone who attempted to address the board\nduring an open meeting was improperly denied an opportunity to speak).\n\nb cccraccy included an internet link to the May 18, 2020, Council meeting. This\noffice has reviewed those portions of the initial comment period where\n\nand spoke, as well as those portions of the second comment period where\nspoke. The video recording establishes that the: Mayor and two other individuals -\nattended the meeting in Council chambers, while other Council members and members of the\n\nublic attended remotely.’ The video shows that:during the initial public comment period,\nen BEI cdressed\n\n>\n\naddressed the Council for five minutes.” After spoke,\nthe Council for almost two minutes and at the end of his comment said \"I am going to yield the\nrest of my time to Jw began speaking but his remarks were muted and\nthe Council proceeded to the next person to give public comment. Next, addressed .\nthe Council for approximately three and a half minutes. At the end of her comments,\n| stated \"I am going to end my time. * * * I am going to attempt to give the rest of my\ntime to I. \"4 EE began speaking but his remarks were muted again and the Council\nproceeded to the next person to give public comment.\n\nThe video establishes that the Council did not interrupt or end or\nBE public comment time. Rather I and ended their own public\n|\n'Due to the rapid spread of COVID-19 throughoutithe State of Illinois, the Governor issued\nexecutive orders allowing meeting of public bodies to be held remotely. See Executive Order 2020-07, §6, issued\n\nMarch 16, 2020, at 3. This order has been extended. See, e.g., Executive Order No. 2020-32, issued April 30, 2020\n(extending the remote participation allowance through May 31, 2026).\n\n*City of O'Fallon City Council, Meeting, May 18, 2020, available at\nhttps://view.earthchannel. com/PlayerController. aspx?&PGD=ofallonil&eID=2 13; fF comment time\noccurs between 7:35 and 12:35.\n\n_ 3 City of O'Fallon City Council, Meeting, May 18, 2020, available at\nhttps://view.earthchannel.com/PlayerController.aspx?&PGD=ofallonil&eID=2 13; 7 comment time occurs\nbetween 17:25 and 19:05.\n\n‘City of O'Fallon City Council, Meeting, May 18, 2020, available at\nhttps://view.earthchannel.com/PlayerController. aspx? PGD=ofalloniléelD= 213 rp comment time\noccurs between 19:30 and 23:06. .\n\nThe Honorable Herb Roach\nJune 16, 2020\n’ Page 3\n\ncomments when they expressed the desire to cede the rest of their time to speak to .\nThe plain language of section 2.06(g) of OMA provides an opportunity for people to address\npublic officials under the rules established and recorded by the public body. A public body may:\nprescribe reasonable rules to govern meeting decorum and procedure, including time limits for\npublic comment. See Wright v. Anthony, 733 F.2d 575, 576-77 (8th Cir. 1984) (five minute time\nlimit served a significant governmental interest in conserving time and in ensuring that others\nhad an opportinity to speak). The City's established and recorded rules for public comment,\nwhich are available on its website, provide that \"[a] speaker shall speak no longer than five\nminutes on any subject[.]\"* The rules do not provide that speakers may donate their time or\nportions of their time to other speakers. , and renee each were\nallowed an opportunity to address the Council. had already addressed the Council\nfor five minutes at the time and attempted to yield their time to him.\n| ond chose not to speak for the full five minutes allotted. Accordingly, this\noffice is unable to conclude tha or were deprived of an opportunity to\naddress the Council. Therefore, this office has determined that this allegation is unfounded.\n\nThe video also shows that the Council held a second period of public comment ©\n\ntoward the end of the meeting during which f again addressed the Council.°\n\nalleges he asked why he was not allowed to speak during the remaining portions o\n\nand time and when the Council did not answer, he called for a point of order\n\nand then received a response from the Council. He alleges that that the Council did not provide\nhim a full five minutes to speak because this initial exchange was counted towards his allotted\nfive minutes. Section 2.06(g) does not mandate that public bodies conduct a question and\nanswer session; rather, a public body must allow an opportunity during open meetings for \"any\nperson * * * to address\" the public officials present. \"Address\" used as a verb is defined as \"to\nspeak or write directly to.\"’ Thus, the plain language of section 2.06(g) of OMA contemplates\nthe opportunity for citizens to express their views to members of a public body. OMA does not\nrequire any response by or answers from public officials. Ill. Att'y Gen. PAC Req. Rev: Ltr.\n37391, issued January 11, 2016, at 7. Further, OMA doés not require silence when speakers\nchoose to pose questions to public bodies rather than making comments. When a speaker.\n\n*City of O'Fallon, Code of O' Fallon, Title HI, §30. 07(D)(1)(d) (2016), available at\nhttp://library.amlegal.com/nxt/gateway. dlUAMlinois/ofallon/cityofo%E2%80%99fallonillinoiscodeofordinances?/=te\nmplates$fn=default. htm$3. O$vid-amlegal: ofallon_il.\n\nCity of O' Fallon City Council, Meeting, May 18, 2020, available at\nhttps://view.earthchannel. com/PlayerController. aspx? &PGD=ofalloniléelD= 213; I comment time\noccurs between 39:08 and 44:11.\n\nMerriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/address (last visited\nApril 23, 2018).\n\nThe Honorable Herb Roach\nJune 16, 2020\nPage 4\n\ndemands an answer to a question, the public body does not infringe on the speaker's statutory\nright to public comment by responding to the question. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n51623, issued May 18, 2018, at 4-5 (concluding public body did not violate OMA when it\ninterrupted. speaker to explain it would not answer questions). Based on our review of the\nrecording of the meeting, this office is unable to conclude that [J was deprived of an\nopportunity to address the Council. Therefore, this office has determined that this allegation is .\nalso unfounded.\n\nThis file is closed. Please contact me at'((312) 814-5201 or the Chicago address\nlisted on the first page of this letter if you have questions.\n\nVery truly: yours,\n\nSenior Assistant Attorney Ggnert——\n\nPublic Access Bureau\n\n63099 o unf mun"}
{"id":1334,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-11-12","case_number":null,"request_numbers":["63270"],"title":"Lisle School District did not violate OMA by discussing sale price in closed session under 2(c)(6)","filename":"63270, issued November 12, 2020.pdf","rel_path":null,"word_count":1259,"summary":"A requester alleged that the Lisle Community Unit School District No. 202 Board of Education improperly discussed the sale of school property in closed session; the PAC determined the discussions were permissible under the Open Meetings Act.","plain_summary":"This determination addresses whether a school board violated the Open Meetings Act (5 ILCS 120/2(c)(6)) by discussing a public property's sale price in closed session after the property's price had allegedly already been set through a public sealed-bid process. The Public Access Bureau concluded that no violation occurred: the board's closed-session discussions concerned adjusting or maintaining the property's price in light of new financial circumstances affecting the buyer, which fell squarely within the section 2(c)(6) exception for setting a price for sale or lease of public property. The reasoning relied on the principle that closely related topics bearing directly on price-setting may be discussed together in closed session, even if a related topic (here, a third party's financial impact) is not itself literally 'setting a price.' The public body was Lisle Community Unit School District No. 202's Board of Education, and the records reviewed were closed session minutes and verbatim recordings from two 2020 board meetings.","holding":"A public body's closed-session discussion of factors bearing directly on adjusting or maintaining a previously set sale price for public property falls within OMA's section 2(c)(6) exception for setting a price for sale or lease of property, even where a related third-party financial circumstance is discussed, because such matters are inextricably intertwined with price-setting.","legal_question":"Whether a public body may discuss the sale of property in closed session under 5 ILCS 120/2(c)(6) when a price for the property had previously been established through a sealed bid process.","disposition":"no_violation","primary_statute":["5 ILCS 120/2(c)(6)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(6)"],"public_body":"Lisle Community Unit School District No. 202 Board of Education","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board discussed the potential sale or lease price of the Tate Woods School property in closed session.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_6/63270, issued November 12, 2020.pdf","sha256":"a7f284e9e17337d4e7208a7f8b0dbebf0489eb528fb0081cbe2471cd6362c75b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","property sale","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL,\nA' T' TORNEY\n\nGENERAI.\n\nNovember\n\n12, 2020\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Meg Sima\nPresident,\n\nBoard\n\nof Education\n\nLisle Community Unit School District No. 202\n5211 Center Avenue\nLisle,\n\nIllinois\n\n60532\n\nIisle202. org\nboard@lisle202.\nRE:\n\nDear\n\nOMA Request for Review — 2020 PAC 63270\n\nand Ms. Sima:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons that follow. the Public Access Bureau\n\nconcludes that the closed session discussions of the Board of Education ( Board) of Lisle\n\nCommunity Unit School No. 202 ( School District) during its April 27, 2020. and May 18, 2020,\nmeetings did not violate OMA.\nBACKGROUND\n\nOn June 4, 2020,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the Board improperly discussed the School District' s Tate Woods\nSchool property in closed session at its April 27, 2020, and May 18, 2020, meetings. He stated\nthat at each of the meetings, the Board entered closed session under the exception\n\nfor discussions\n\nconcerning the setting of a price for the sale or lease of property owned by a public body. He\ncontended, however, that a price for the property in question had already been set via a public\nsale sealed bid process.\n\nasserted:\n\n500 South Second Street, Springfield.\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph\n\nStreet, Chicago.\n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\n601 South University\n\nAve.. Carbondale.\n\n6400 •\n\nTTY: ( R771675- 9119 •\n\nFax • ( 61R)\n\n129-\n\n6416\n\n\fThe Honorable Meg Sima\nNovember 12, 2020\nPage 2\n\nIn June 2018, Lisle CUSD 202 entered into a contract to sell the\n\npublic property to the highest bidder. The contract is still in effect.\nhad not been breeched by either party, nor has the contract been\nterminated. The price of this public property has been firmly set.\n\nAny modification to the price set by the public bid process would\nrequire the District to again notice a public sale via sealed bid or\n\nwould require a new public listing of the property for sale with a\nbroker.) ' 1\n\nOn June 10, 2020, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its April 27, 2020, and May 18, 2020,\n\nmeeting agendas, open and closed session minutes, and closed session verbatim recordings for\nthis office' s confidential review, together with a written response to\n\nallegation.\n\nOn\n\nJune 19, 2020, this office received the requested materials. On June 23, 2020, this office\n\nforwarded a copy of the Board' s response to\n\nhe did not reply.\n\nDETERMINATION\n\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2( c) of OMA. 5 ILCS 120/ 2( a), ( c)\n\nWest 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective\nAugust 23, 2019. The section 2( c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\" 5 ILCS 120/ 2( b) ( West 2018), as amended by Public Acts\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019.\n\nSection 2( c)( 6) of OMA ( 5 ILCS 120/ 2( c)( 6) ( West 2018), as amended by Public\nActs 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) permits a public\n\nbody to enter closed session to discuss the limited subject of \"[t] he setting of a price for sale or\n\nlease of property owned by the public body.\" In its response to this office, the Board contended\nthat section 2( c)( 6) authorized its closed session discussions pertaining to the property at issue\nbecause. \"the Board deliberated adjusting the price for sale of property owned by the school\ndistrict due to unforeseen financial impacts on the buyer imposed by the Village of Lisle, which\n\nsubstantially increased the buyer' s net cost to acquire the property.\" 2 The Board further asserted\n\nE- mail from\n\nLim, Assistant\n\nto Public Access [ Bureau, Office of the Attorney General] ( June 4, 2020).\n\nLetter from Keith Filipiak, Superintendent, Lisle Community Unit School District 202, to Teresa\nAttorney General, Public Access Bureau ( June 18. 2020).\n\n\fThe Honorable Meg Sima\nNovember 12, 2020\nPage 3\n\nthat it discussed \" ways to maintain the set price for the buyer in order to allow completion of the\n\nsale of the property to the buyer. i3\nThis office has reviewed the Board' s closed session minutes and portions of the\n\nverbatim recordings of the April 27, 2020, and May 18, 2020, meetings pertaining to the Tate\n\nWoods School property. This office' s review confirmed that the Board discussed the price of the\nproperty and options for maintaining or adjusting the property' s price. The minutes and verbatim\n\nrecordings reflect that the sale of the property had not been finalized, and that the Board was still\nin negotiations with the buyer.'\n\nThe Board' s discussions pertained to the setting of the price of\n\nthe property in light of financial circumstances involving the Village of Lisle. The Board' s\ndiscussions concerning the village are intertwined with the property' s price and related directly to\nthe Board' s consideration of ways to keep the set price for the buyer. Gosnell v. Hogan, 179 III.\n\nApp. 3d 161, 175- 76 ( 5th Dist. 1989) ( school board did not improperly discuss employee' s goals\nin closed session under exception for discussions of employee' s performance because goals and\n\nperformance are inextricably intertwined).\n\nIt appears from the context of the Board' s discussion\n\nthat the circumstances involving the village could not have been considered in isolation because\nthey directly bore upon the setting of the price for sale of the property. Accordingly, this office\nconcludes that those discussions fell within the scope of section 2( c)( 6) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n63270 o 2c6 proper sd\n\nLetter from Keith Filipiak, Superintendent, Lisle Community Unit School District 202, to Teresa\nLim, Assistant Attorney General, Public Access Bureau ( June 18, 2020).\n\n4The Public Access Counselor' s authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act ( 5 ILCS 140/ 1 et seq. ( West 2018)). See 15 ILCS 205/ 7( c)( 3) ( West\n2018). OMA concerns the transparency with which public bodies meet and conduct business in relation to the\npublic; it does not govern the bidding processes for the sale of public properties. Accordingly, this office is unable\n\nto review claims concerning whether another sealed bid process would be required for the sale of public property\nwhere\n\nthe property price may be adjusted.\n\n\fThe Honorable Meg Sima\nNovember\n\n12, 2020\n\nPage 4\n\ncc:\n\nVia electronic mail\nDr. Keith Filipiak\nSuperintendent\n\nLisle Community Unit School District # 202\n5211 Center Avenue,\nLisle, Illinois 60532\nkfilipiak@Iisle203. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's closed-session discussion of a property sale price","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-63270/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL,\nA' T' TORNEY\n\nGENERAI.\n\nNovember\n\n12, 2020\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Meg Sima\nPresident,\n\nBoard\n\nof Education\n\nLisle Community Unit School District No. 202\n5211 Center Avenue\nLisle,\n\nIllinois\n\n60532\n\nIisle202. org\nboard@lisle202.\nRE:\n\nDear\n\nOMA Request for Review — 2020 PAC 63270\n\nand Ms. Sima:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons that follow. the Public Access Bureau\n\nconcludes that the closed session discussions of the Board of Education (Board) of Lisle\n\nCommunity Unit School No. 202 (School District) during its April 27, 2020. and May 18, 2020,\nmeetings did not violate OMA.\nBACKGROUND\n\nOn June 4, 2020,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the Board improperly discussed the School District's Tate Woods\nSchool property in closed session at its April 27, 2020, and May 18, 2020, meetings. He stated\nthat at each of the meetings, the Board entered closed session under the exception\n\nfor discussions\n\nconcerning the setting of a price for the sale or lease of property owned by a public body. He\ncontended, however, that a price for the property in question had already been set via a public\nsale sealed bid process.\n\nasserted:\n\nIn June 2018, Lisle CUSD 202 entered into a contract to sell the\n\npublic property to the highest bidder. The contract is still in effect.\nhad not been breeched by either party, nor has the contract been\nterminated. The price of this public property has been firmly set.\n\nAny modification to the price set by the public bid process would\nrequire the District to again notice a public sale via sealed bid or\n\nwould require a new public listing of the property for sale with a\nbroker.) ' 1\n\nOn June 10, 2020, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its April 27, 2020, and May 18, 2020,\n\nmeeting agendas, open and closed session minutes, and closed session verbatim recordings for\nthis office's confidential review, together with a written response to\n\nallegation.\n\nOn\n\nJune 19, 2020, this office received the requested materials. On June 23, 2020, this office\n\nforwarded a copy of the Board's response to\n\nhe did not reply.\n\nDETERMINATION\n\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/ 2(a), (c)\n\nWest 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective\nAugust 23, 2019. The section 2(c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2018), as amended by Public Acts\n101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019.\n\nSection 2(c)(6) of OMA (5 ILCS 120/ 2(c)(6) (West 2018), as amended by Public\nActs 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) permits a public\n\nbody to enter closed session to discuss the limited subject of \"[t] he setting of a price for sale or\n\nlease of property owned by the public body.\" In its response to this office, the Board contended\nthat section 2(c)(6) authorized its closed session discussions pertaining to the property at issue\nbecause. \"the Board deliberated adjusting the price for sale of property owned by the school\ndistrict due to unforeseen financial impacts on the buyer imposed by the Village of Lisle, which\n\nsubstantially increased the buyer's net cost to acquire the property.\" 2 The Board further asserted\n\nE- mail from\n\nLim, Assistant\n\nto Public Access [ Bureau, Office of the Attorney General] (June 4, 2020).\n\nLetter from Keith Filipiak, Superintendent, Lisle Community Unit School District 202, to Teresa\n\nthat it discussed \" ways to maintain the set price for the buyer in order to allow completion of the\n\nsale of the property to the buyer. i3\nThis office has reviewed the Board's closed session minutes and portions of the\n\nverbatim recordings of the April 27, 2020, and May 18, 2020, meetings pertaining to the Tate\n\nWoods School property. This office's review confirmed that the Board discussed the price of the\nproperty and options for maintaining or adjusting the property's price. The minutes and verbatim\n\nrecordings reflect that the sale of the property had not been finalized, and that the Board was still\nin negotiations with the buyer.'\n\nThe Board's discussions pertained to the setting of the price of\n\nthe property in light of financial circumstances involving the Village of Lisle. The Board's\ndiscussions concerning the village are intertwined with the property's price and related directly to\nthe Board's consideration of ways to keep the set price for the buyer. Gosnell v. Hogan, 179 III.\n\nApp. 3d 161, 175- 76 (5th Dist. 1989) (school board did not improperly discuss employee's goals\nin closed session under exception for discussions of employee's performance because goals and\n\nperformance are inextricably intertwined).\n\nIt appears from the context of the Board's discussion\n\nthat the circumstances involving the village could not have been considered in isolation because\nthey directly bore upon the setting of the price for sale of the property. Accordingly, this office\nconcludes that those discussions fell within the scope of section 2(c)(6) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n63270 o 2c6 proper sd\n\nLetter from Keith Filipiak, Superintendent, Lisle Community Unit School District 202, to Teresa\nLim, Assistant Attorney General, Public Access Bureau (June 18, 2020).\n\n4 The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2018)). See 15 ILCS 205/ 7(c)(3) (West\n2018). OMA concerns the transparency with which public bodies meet and conduct business in relation to the\npublic; it does not govern the bidding processes for the sale of public properties. Accordingly, this office is unable\n\nto review claims concerning whether another sealed bid process would be required for the sale of public property\n\ncc:\n\nVia electronic mail\nDr. Keith Filipiak\nSuperintendent\n\nLisle Community Unit School District # 202\n5211 Center Avenue,\nLisle, Illinois 60532\nkfilipiak@Iisle203. org"}
{"id":1335,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-11-18","case_number":null,"request_numbers":["63411"],"title":"City of Oglesby Council violated OMA by discussing budget in closed session","filename":"63411, issued November 18, 2022.pdf","rel_path":null,"word_count":1623,"summary":"A requester alleged that the City of Oglesby City Council improperly discussed budgetary matters, such as water rates and tax levies, during a closed session. The PAC determined that while the Council properly discussed specific employee matters, it violated the Open Meetings Act by including unauthorized budgetary discussions in that same closed session.","plain_summary":"A citizen complained that the Oglesby City Council held a private meeting to discuss public budget issues like water rates and taxes, which should have been discussed in public. The Attorney General's office agreed, finding that the Council mixed allowed private personnel discussions with forbidden public budget talk. The PAC requested that the City release the recording of the meeting to the public, with only the sensitive personnel information redacted.","holding":"The City of Oglesby City Council violated the Open Meetings Act by discussing unauthorized budgetary matters during a closed session that was only permitted for personnel discussions.","legal_question":"Whether the City of Oglesby City Council violated the Open Meetings Act by discussing budgetary matters in a closed session intended for personnel discussions.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"City of Oglesby City Council","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council discussed budgetary matters, including water rates and tax levies, during a closed session meeting.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/63411, issued November 18, 2022.pdf","sha256":"09d13ca2e79fa5cf0595115042db2064015484edd3b7f8d7eb694d1b7aa1cee1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","open meetings act","budget","meeting minutes","verbatim recording"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 18, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Colin Barry\nAttorney\n\nCity of Oglesby\n110 East Walnut Street\n\nOglesby, Illinois 61348\nColin. barry@akmsb. com\nRE: OMA Request for Review – 2020 PAC 63411\nDear\n\nand Mr. Barry:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau concludes that while the City Council of the City of Oglesby ( City Council) discussed\n\ncertain authorized matters concerning specific employees in closed session on August 5, 2019,\nthe City Council also improperly discussed various unauthorized budgetary matters.\nOn June 15, 2020,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the City Council violated OMA during its August 5, 2019,\nmeeting by improperly discussing various matters in closed session, such as water rates, the\n\nannual tax levy, and interfund transfers. He stated that he discovered the alleged violation\nfollowing the City Council' s disclosure of the closed session meeting minutes on May 4, 2020. 1\n1A person exercising reasonable diligence could not have discovered facts concerning\nthe alleged violation within 60 days of the August 5, 2019, meeting because the public was not privy to the closed\nsession, and\nsubmitted his Request for Review within 60 days of the public disclosure of the closed\nsession minutes. Therefore, his Request for Review was timely. See 5 ILCS 120/3.5(a) ( West 2020).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Colin Barry\nNovember 18, 2022\n\nPage 2\n\nOn August 16, 2022, this office forwarded a copy of the Request for Review to\nthe City Council and asked it to provide copies of the notice, agenda, and closed session minutes,\n\ntogether with a written answer to\n\nallegation. On August 5, 2022, this office received\n\nthose materials. On that same date, this office forwarded a copy of the City Council' s response\n\nto\n\nand notified him of his opportunity to reply. He did not do so. The City Council\n\nsubsequently provided this office with a copy of the closed session verbatim recording from its\n\nAugust 5, 2019, meeting for this office's confidential review on November 17, 2022.\nDETERMINATION\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Accordingly,\n\nsection 2(a) of OMA2 provides that all meetings of a public body must be open to the public\nunless the discussion falls within the scope of one of the exceptions set out in section 2(c) of\n\nOMA.3 The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 4 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 ( 4th Dist.\n\n2005) (strictly construing OMA section 2(c)(1)).\nIn its response to this office, the City Council argued that the entirety of the its\nAugust 5, 2019, closed session was authorized by section 2(c)( 1) of OMA. 5 Section 2(c)( 1) of\n\nOMA permits a public body to hold a closed meetings to consider \"[ t]he appointment,\nemployment, compensation, discipline, performance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park, recreational, or educational setting,\nor specific volunteers of the public body or legal counsel for the public body[.]\"\n\nIn construing\n\nthis exception, the Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)( 1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt' y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att' y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3). In addition, the Public Access Bureau has previously determined that\nt]he use of the term ' specific employees' in section 2(c)( 1) significantly limits the scope of the\n\nexception\" to \"the hiring merits, performance, conduct or terms of employment of individual\n25 ILCS 120/2(a) ( West 2021 Supp.), as amended by Public Act 102 -813, effective May 13, 2022.\n35 ILCS 120/2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n45 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102 -813, effective May 13, 2022.\n55 ILCS 120/2(c)(1) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n\n\fMr. Colin Barry\nNovember 18, 2022\n\nPage 3\n\nemployees.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4. Although\nbudgetary considerations may impact the employment and compensation of certain personnel,\n\nclosed session budgetary discussions that do not center on the merits or conduct of specific\nemployees or prospective employees are not authorized by section 2(c)(1). Ill. Att' y Gen. Pub.\n\nAcc. Op. No. 18-012, issued October 2, 2018, at 4.\nThe City Council contended that its closed session discussion was proper because:\nThe discussion at the August 5, 2019 closed session involved the\npay raise of a specific employee, the pay raise of a group of\n\nemployees, namely the electric department linemen, the hiring and\npay for two specific, then unfilled positions of Economic Director\n\nand Event Planner, as well as discussion of whether the city and its\ndepartments would be able to pay for such new employees and\n\nraises * * * . While it is true that the discussion tangentially\nwandered into cost of certain capital outlays, such as a sound\n\nsystem and the potential need for a new water plant, those came up\nin the context of how the City would be able to afford the pay of\n\nnew employees and the contemplated raises to current employees.\nThe discussion of an increase in water rates, as well as the\n\npotential fines that could be issued, takes place in the context of\nthe Council' s discussion on how to raise revenues in the water fund\n\nto pay for the contemplated employee salary and raises. * * * It is\nthe City's position that not only is such a discussion wholly\n\nappropriate when considering hiring new employees or giving\ncurrent employees raises, it also would be irresponsible to consider\n\nthose issues in a vacuum without also considering the financial\nimpact that necessarily would follow.[ 6]\nThis office' s review of the closed session verbatim recording confirmed that the\n\nCity Council discussed certain matters that fall within the scope of section 2(c)(1) because they\nconcern specific employees or job candidates, such as a specific employee' s compensation and\n\nthe relative merits of named candidates for employment with the City.\nacknowledged that such matters concerning specific employees are legitimate closed session\n\ndiscussion topics under section 2(c)(1). In contrast, the structural employment matters the City\nCouncil discussed, such as the creation of two new positions, fell outside the scope of section\n\n2(c)(1), as the exception applies only when the subject is specific people. Moreover, the City\nCouncil' s discussion of budgetary matters was clearly improper under section 2(c)( 1), regardless\n6Letter from City of Oglesby, Illinois, by Colin P. Barry, One of Its Attorneys, to Jane Sternecky,\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General (August 25, 2022), at 1 -2.\n\n\fMr. Colin Barry\nNovember 18, 2022\n\nPage 4\n\nof the extent to which fiscal considerations limited the City's ability to afford certain salaries and\nraises. The City Council' s discussion of budgetary matters, such as water rates, was not a brief\n\naside to its discussion of employee compensation; the City discussed potentially raising revenues\nat considerable length with little to no mention of specific employees or job candidates much of\n\nthe time. While, as the City Council contends, it generally may be irresponsible for a public\nbody to raise expenditures without regard to revenues, it does not follow that a public body may\n\ndeliberate about revenue-raising options in closed session under section 2(c)(1). Rather, the\nbudgetary impacts of employee raises or new hires must be discussed in open session. The\n\nsubjects are not so intertwined that they could not have been discussed separately. The City\nCouncil could have discussed possible raises for specific employees in closed session, and then\n\ndiscussed in open session how to generate the necessary revenue to fund the raises before taking\nfinal action on the raises. Because the City Council did not confine its August 5, 2019, closed\n\nsession discussion to the relative merits of specific employees or job candidates, the City Council\ndiscussed unauthorized matters behind closed doors on that date.\nTo remedy this violation, this office asks the City Council to vote to publicly\n\ndisclose most portions of its August 5, 2019, closed session verbatim recording, subject to the\npermissible redaction of the limited portions concerning specific individual employees and job\n\ncandidates.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at\n\njoshua.jones@ilag.gov if you have any questions.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n63411 o 2c1 proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of water rates and tax levies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-63411/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 18, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Colin Barry\nAttorney\n\nCity of Oglesby\n110 East Walnut Street\n\nOglesby, Illinois 61348\nColin. barry@akmsb. com\nRE: OMA Request for Review – 2020 PAC 63411\nDear\n\nand Mr. Barry:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that while the City Council of the City of Oglesby (City Council) discussed\n\ncertain authorized matters concerning specific employees in closed session on August 5, 2019,\nthe City Council also improperly discussed various unauthorized budgetary matters.\nOn June 15, 2020,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the City Council violated OMA during its August 5, 2019,\nmeeting by improperly discussing various matters in closed session, such as water rates, the\n\nannual tax levy, and interfund transfers. He stated that he discovered the alleged violation\nfollowing the City Council's disclosure of the closed session meeting minutes on May 4, 2020. 1\n1A person exercising reasonable diligence could not have discovered facts concerning\nthe alleged violation within 60 days of the August 5, 2019, meeting because the public was not privy to the closed\nsession, and\nsubmitted his Request for Review within 60 days of the public disclosure of the closed\nsession minutes. Therefore, his Request for Review was timely. See 5 ILCS 120/3.5(a) (West 2020).\n\nOn August 16, 2022, this office forwarded a copy of the Request for Review to\nthe City Council and asked it to provide copies of the notice, agenda, and closed session minutes,\n\ntogether with a written answer to\n\nallegation. On August 5, 2022, this office received\n\nthose materials. On that same date, this office forwarded a copy of the City Council's response\n\nto\n\nand notified him of his opportunity to reply. He did not do so. The City Council\n\nsubsequently provided this office with a copy of the closed session verbatim recording from its\n\nAugust 5, 2019, meeting for this office's confidential review on November 17, 2022.\nDETERMINATION\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Accordingly,\n\nsection 2(a) of OMA2 provides that all meetings of a public body must be open to the public\nunless the discussion falls within the scope of one of the exceptions set out in section 2(c) of\n\nOMA.3 The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 4 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 (4th Dist.\n\n2005) (strictly construing OMA section 2(c)(1)).\nIn its response to this office, the City Council argued that the entirety of the its\nAugust 5, 2019, closed session was authorized by section 2(c)(1) of OMA. 5 Section 2(c)(1) of\n\nOMA permits a public body to hold a closed meetings to consider \"[ t]he appointment,\nemployment, compensation, discipline, performance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park, recreational, or educational setting,\nor specific volunteers of the public body or legal counsel for the public body[.]\"\n\nIn construing\n\nthis exception, the Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)(1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt' y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att' y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3). In addition, the Public Access Bureau has previously determined that\nt]he use of the term ' specific employees' in section 2(c)(1) significantly limits the scope of the\n\nexception\" to \"the hiring merits, performance, conduct or terms of employment of individual\n25 ILCS 120/2(a) (West 2021 Supp.), as amended by Public Act 102 -813, effective May 13, 2022.\n35 ILCS 120/2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n45 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102 -813, effective May 13, 2022.\n\nemployees.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4. Although\nbudgetary considerations may impact the employment and compensation of certain personnel,\n\nclosed session budgetary discussions that do not center on the merits or conduct of specific\nemployees or prospective employees are not authorized by section 2(c)(1). Ill. Att' y Gen. Pub.\n\nAcc. Op. No. 18-012, issued October 2, 2018, at 4.\nThe City Council contended that its closed session discussion was proper because:\nThe discussion at the August 5, 2019 closed session involved the\npay raise of a specific employee, the pay raise of a group of\n\nemployees, namely the electric department linemen, the hiring and\npay for two specific, then unfilled positions of Economic Director\n\nand Event Planner, as well as discussion of whether the city and its\ndepartments would be able to pay for such new employees and\n\nraises * * *. While it is true that the discussion tangentially\nwandered into cost of certain capital outlays, such as a sound\n\nsystem and the potential need for a new water plant, those came up\nin the context of how the City would be able to afford the pay of\n\nnew employees and the contemplated raises to current employees.\nThe discussion of an increase in water rates, as well as the\n\npotential fines that could be issued, takes place in the context of\nthe Council's discussion on how to raise revenues in the water fund\n\nto pay for the contemplated employee salary and raises. * * * It is\nthe City's position that not only is such a discussion wholly\n\nappropriate when considering hiring new employees or giving\ncurrent employees raises, it also would be irresponsible to consider\n\nthose issues in a vacuum without also considering the financial\nimpact that necessarily would follow.[ 6]\nThis office's review of the closed session verbatim recording confirmed that the\n\nCity Council discussed certain matters that fall within the scope of section 2(c)(1) because they\nconcern specific employees or job candidates, such as a specific employee's compensation and\n\nthe relative merits of named candidates for employment with the City.\nacknowledged that such matters concerning specific employees are legitimate closed session\n\ndiscussion topics under section 2(c)(1). In contrast, the structural employment matters the City\nCouncil discussed, such as the creation of two new positions, fell outside the scope of section\n\n2(c)(1), as the exception applies only when the subject is specific people. Moreover, the City\nCouncil's discussion of budgetary matters was clearly improper under section 2(c)(1), regardless\n6 Letter from City of Oglesby, Illinois, by Colin P. Barry, One of Its Attorneys, to Jane Sternecky,\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General (August 25, 2022), at 1 -2.\n\nof the extent to which fiscal considerations limited the City's ability to afford certain salaries and\nraises. The City Council's discussion of budgetary matters, such as water rates, was not a brief\n\naside to its discussion of employee compensation; the City discussed potentially raising revenues\nat considerable length with little to no mention of specific employees or job candidates much of\n\nthe time. While, as the City Council contends, it generally may be irresponsible for a public\nbody to raise expenditures without regard to revenues, it does not follow that a public body may\n\ndeliberate about revenue-raising options in closed session under section 2(c)(1). Rather, the\nbudgetary impacts of employee raises or new hires must be discussed in open session. The\n\nsubjects are not so intertwined that they could not have been discussed separately. The City\nCouncil could have discussed possible raises for specific employees in closed session, and then\n\ndiscussed in open session how to generate the necessary revenue to fund the raises before taking\nfinal action on the raises. Because the City Council did not confine its August 5, 2019, closed\n\nsession discussion to the relative merits of specific employees or job candidates, the City Council\ndiscussed unauthorized matters behind closed doors on that date.\nTo remedy this violation, this office asks the City Council to vote to publicly\n\ndisclose most portions of its August 5, 2019, closed session verbatim recording, subject to the\npermissible redaction of the limited portions concerning specific individual employees and job\n\ncandidates.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at\n\njoshua.jones@ilag.gov if you have any questions.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n63411 o 2c1 proper improper mun"}
{"id":1336,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-10-26","case_number":null,"request_numbers":["64702"],"title":"Piatt County Board did not violate OMA by allowing public to record meeting","filename":"64702, issued October 26, 2020.pdf","rel_path":null,"word_count":1224,"summary":"A requester alleged that the Piatt County Board violated the Open Meetings Act by allowing members of the public to record and broadcast a meeting, which the requester claimed was intimidating. The PAC determined that OMA explicitly permits the recording of open meetings and therefore no violation occurred.","plain_summary":"A citizen complained to the Attorney General that they felt intimidated because a group was filming and broadcasting a public meeting. The PAC explained that Illinois law specifically allows members of the public to record open government meetings. Because the Board followed the law by allowing the recording, the PAC closed the case with no further action.","holding":"The Piatt County Board did not violate the Open Meetings Act by allowing members of the public to record and broadcast its meeting.","legal_question":"Does the Open Meetings Act prohibit a public body from allowing members of the public to record and broadcast its open meetings?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Piatt County Board","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting recording","subject_description":"The requester challenged the right of third parties to film and broadcast public meetings of the Piatt County Board.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.05/64702, issued October 26, 2020.pdf","sha256":"878510c24cf8dae890239c2d897ebb44620b8f776fe27c7087a7a768d8f27dd7","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recording meetings","public meeting","filming","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nOctober 26, 2020\n\nVia electronic mail\n\nRE: OMA Request for Review —2020 PAC 64702\n\nDear\n\nThis determination is issued pursuant to section 3. 5( b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( b) ( West 2018)).\nBureau concludes\n\nFor the reasons set forth below, the Public Access\n\nthat no further action is warranted\n\nin this matter.\n\nOn September 9, 2020, this office received your Request for Review alleging that\n\nthe Piatt County Board ( Board) violated OMA, section 8- 701 of the Code of Civil Procedure\n735 ILCS 5/ 8- 701 ( West 2018)), 1 and your civil rights when it did not prevent members of the\n\npublic from recording its September 9, 2020, regular meeting. Specifically, you alleged that the\n\nBoard did not stop the Edgar County Watchdogs from videotaping the meeting and members of\nthe public present at the meeting, and broadcasting the meeting. You stated that you chose not to\nspeak during the meeting because you were \" intimidated by the cameras\" and \" did not want to be\nfilmed\n\nand\n\nbroadcast\n\non [\n\nF] acebook[.]\n\ni2 In an addendum,\n\nyou described a physical\n\naltercation\n\nwith one of the \" Watchdogs\" when you sought to block him from filming, and you asked\nwhether the \" Watchdogs\" were allowed to film you before the meeting, film the audience during\nthe meeting, and post videos or images of faces of members of the public online.\nSection 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2018)) sets forth the\n\nrequirements for filing a Request for Review of an alleged OMA violation as follows:\nThis section provides that \"[ n] o witness shall be compelled to testify in any proceeding conducted\nby a commission, administrative agency or other tribunal in this State if any portion of his or her testimony is to be\nbroadcast or televised or if motion pictures are to be taken of him or her while he or she is testifying.\"\n\n2E - mail from\n\n500 South\n\nSecond\n\nStreet,\n\nto Public Access Counselor ( September\n\nSpringfield,\n\n100 West Randolph Street, Chicago,\n601 South\n\nUniversity\n\nAve.,\n\nCarbondale,\n\nIllinois\n\n62701 • (\n\nIllinois 60601 • (\nIllinois 62901 • (\n\n217)\n\n782- 1090 •\n\nTTY: ( 877)\n\n9, 2020).\n\n844- 5461 •\n\nFax: ( 217)\n\n782- 7046\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n618)\n\n529- 6400 • TTY: ( 877)\n\n675- 9339 • Fax: ( 618) 529- 6416\n\n\fOctober 26, 2020\nPage 2\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic ;Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged\nrequest for review * * *\nsupporting\n\nthe\n\nviolation. * * *\n\nThe\n\nmust include a summary of the facts\n\nallegation. (\n\nEmphasis\n\nadded.)\n\nThe Public Access Counselor' s authority to resolve disputes is limited to alleged\nviolations\n\nof\n\nOMA and the Freedom of Information\n\n15 ILCS 205/ 7( c)( 3) ( West 2018).\n\nTherefore,\n\nAct (5 ILCS 140/ 1 et seq. ( West 2018)).\n\nthis office is not authorized\n\nSee\n\nto review alleged\n\nviolations of civil rights. Additionally, this office notes that OMA does not specifically address\n\nfilming before a meeting, filming the audience during a meeting, or the internet posting of\nimages or videos of open meetings taken by members of the public.\nOMA does, however, specifically provide that anyone may record an open\nmeeting. Section 2. 05 of OMA ( 5 ILCS 120/ 2. 05) ( West 2018)) provides:\n\nI Subject to the provisions of Section 8- 701 of the Code of\n\nCivil Procedure, any person may record the proceedings at\nmeetings required to be open by this Act by tape, film or other\nmeans[ The authority holding the meeting shall prescribe\nreasonable\n\nrules to govern the right to make such recordings.\n\nIf a witness at any meeting required to be open by this Act\nwhich is conducted by a commission, administrative agency or .\nother tribunal, refuses to testify on the grounds that he may not be\ncompelled to testify if any portion of his testimony is to be\nbroadcast or televised or if motion pictures are to be taken of him\n\nwhile he is testifying, the authority holding the meeting shall\nprohibit such recording during the testimony of the witness.\n\nNothing in this Section shall be construed to extend the right to\nrefuse to testify at any meeting not subject to the provisions of\nSection 8- 701 of the Code of Civil Procedure.\n\nUnder the plain language of this provision, any member of the public may\n\nvideotape an open meeting, subject to reasonable rules prescribed by the public body. The\nauthority holding the' meeting may only prohibit recording in the limited circumstance where a\nwitness who is compelled to \" testify\" at a commission, administrative agency, or other tribunal\n\nobjects to being recorded. In construing a statutory provision, the primary goal is to ascertain\nand effectuate the intent of the General Assembly. See, for example, Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415, 844 N.E. 2d 1, 14 ( 2006). The best\n\n\fOctober 26, 2020\nPage 3\n\nindicator of legislative intent is the language of the statute, which must be given its plain and\n\nordinary meaning. See, e. g., Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL\n111286, ¶ 23, 962 N. E. 2d 956, 964 ( 2012). Black' s Law Dictionary defines \" testify\" \"[ t] o give\nevidence\n\nas a witness\"\n\nor \" to\n\nbear witness[.]\"\n\nBlack' s Law Dictionary ( 11th ed. 2019) available\n\nYou were not compelled to testify as a witness at the September 9, 2020,\nmeeting, nor was that Board meeting a trial, evidentiary hearing, or other proceeding subject to\nat\n\nWestlaw\n\nBLACKS.\n\nthe Code of Civil Procedure. Rather, you were a member of the public seeking to address your\n120/ 2. 06( g) ( West 2018)) 3\nopinion to the Board pursuant to section 2. 06( g) of OMA ( 5 ILCS\n\nAccordingly, the limitation on recording in section 8- 701 of the Code of Civil Procedure was not\navailable in these circumstances.\n\nThis office does not condone aggressive behavior by persons filming such as you\nallege and understands that some persons may be discouraged from addressing the Board\nbecause of being filmed and the recording being posted online. Nonetheless, because OMA\n\nspecifically provides that any person may record the proceedings at open meetings, your\ncomplaint that the Board allowed the recording to continue does not allege a violation of OMA.\nTherefore, no further action is warranted in this matter. If you have any questions, you may\n\ncontact me at clucentemccullough@atg. state. il.us or ( 312) 814- 5383.\nVery truly yours,\n\nCHRISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n64702 o no fi war co\n\ncc:\n\nMs. Keri Nusbaum\n\nSecretary/ Fredom of Information Officer\n\nPiatt County Board\n101 West Washington Street, Courthouse Room 107\nMonticello, Illinois 61856\n\n3Section 2. 06( g) of OMA\npublic officials\n\nunder the rules established\n\nprovides that \"[ a] ny person shall be permitted an opportunity to address\nby the public body.\"\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A county board's allowance of public recording of meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-64702/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nGENERAL\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nOctober 26, 2020\n\nVia electronic mail\n\nRE: OMA Request for Review —2020 PAC 64702\n\nDear\n\nThis determination is issued pursuant to section 3. 5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(b) (West 2018)).\nBureau concludes\n\nFor the reasons set forth below, the Public Access\n\nthat no further action is warranted\n\nin this matter.\n\nOn September 9, 2020, this office received your Request for Review alleging that\n\nthe Piatt County Board (Board) violated OMA, section 8- 701 of the Code of Civil Procedure\n735 ILCS 5/ 8- 701 (West 2018)), 1 and your civil rights when it did not prevent members of the\n\npublic from recording its September 9, 2020, regular meeting. Specifically, you alleged that the\n\nBoard did not stop the Edgar County Watchdogs from videotaping the meeting and members of\nthe public present at the meeting, and broadcasting the meeting. You stated that you chose not to\nspeak during the meeting because you were \" intimidated by the cameras\" and \" did not want to be\nfilmed\n\nand\n\nbroadcast\n\non [\n\nF] acebook[.]\n\ni2 In an addendum,\n\nyou described a physical\n\naltercation\n\nwith one of the \" Watchdogs\" when you sought to block him from filming, and you asked\nwhether the \" Watchdogs\" were allowed to film you before the meeting, film the audience during\nthe meeting, and post videos or images of faces of members of the public online.\nSection 3. 5(a) of OMA (5 ILCS 120/ 3. 5(a) (West 2018)) sets forth the\n\nrequirements for filing a Request for Review of an alleged OMA violation as follows:\nThis section provides that \"[ n] o witness shall be compelled to testify in any proceeding conducted\nby a commission, administrative agency or other tribunal in this State if any portion of his or her testimony is to be\nbroadcast or televised or if motion pictures are to be taken of him or her while he or she is testifying.\"\n\n2E - mail from\n\n500 South\n\nSecond\n\nStreet,\n\nto Public Access Counselor (September\n\nSpringfield,\n\n100 West Randolph Street, Chicago,\n601 South\n\nUniversity\n\nAve.,\n\nCarbondale,\n\nIllinois\n\n62701 • (Illinois 60601 • (Illinois 62901 • (217)\n\n782- 1090 •\n\nTTY: (877)\n\n9, 2020).\n\n844- 5461 •\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic;Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged\nrequest for review * * *\nsupporting\n\nthe\n\nviolation. * * *\n\nThe\n\nmust include a summary of the facts\n\nallegation. (Emphasis\n\nadded.)\n\nThe Public Access Counselor's authority to resolve disputes is limited to alleged\nviolations\n\nof\n\nOMA and the Freedom of Information\n\n15 ILCS 205/ 7(c)(3) (West 2018).\n\nTherefore,\n\nAct (5 ILCS 140/ 1 et seq. (West 2018)).\n\nthis office is not authorized\n\nSee\n\nto review alleged\n\nviolations of civil rights. Additionally, this office notes that OMA does not specifically address\n\nfilming before a meeting, filming the audience during a meeting, or the internet posting of\nimages or videos of open meetings taken by members of the public.\nOMA does, however, specifically provide that anyone may record an open\nmeeting. Section 2. 05 of OMA (5 ILCS 120/ 2. 05) (West 2018)) provides:\n\nI Subject to the provisions of Section 8- 701 of the Code of\n\nCivil Procedure, any person may record the proceedings at\nmeetings required to be open by this Act by tape, film or other\nmeans[ The authority holding the meeting shall prescribe\nreasonable\n\nrules to govern the right to make such recordings.\n\nIf a witness at any meeting required to be open by this Act\nwhich is conducted by a commission, administrative agency or.\nother tribunal, refuses to testify on the grounds that he may not be\ncompelled to testify if any portion of his testimony is to be\nbroadcast or televised or if motion pictures are to be taken of him\n\nwhile he is testifying, the authority holding the meeting shall\nprohibit such recording during the testimony of the witness.\n\nNothing in this Section shall be construed to extend the right to\nrefuse to testify at any meeting not subject to the provisions of\nSection 8- 701 of the Code of Civil Procedure.\n\nUnder the plain language of this provision, any member of the public may\n\nvideotape an open meeting, subject to reasonable rules prescribed by the public body. The\nauthority holding the' meeting may only prohibit recording in the limited circumstance where a\nwitness who is compelled to \" testify\" at a commission, administrative agency, or other tribunal\n\nobjects to being recorded. In construing a statutory provision, the primary goal is to ascertain\nand effectuate the intent of the General Assembly. See, for example, Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415, 844 N.E. 2d 1, 14 (2006). The best\n\nindicator of legislative intent is the language of the statute, which must be given its plain and\n\nordinary meaning. See, e. g., Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL\n111286, ¶ 23, 962 N. E. 2d 956, 964 (2012). Black's Law Dictionary defines \" testify\" \"[ t] o give\nevidence\n\nas a witness\"\n\nor \" to\n\nbear witness[.]\"\n\nBlack's Law Dictionary (11th ed. 2019) available\n\nYou were not compelled to testify as a witness at the September 9, 2020,\nmeeting, nor was that Board meeting a trial, evidentiary hearing, or other proceeding subject to\nat\n\nWestlaw\n\nBLACKS.\n\nthe Code of Civil Procedure. Rather, you were a member of the public seeking to address your\n120/ 2. 06(g) (West 2018)) 3\nopinion to the Board pursuant to section 2. 06(g) of OMA (5 ILCS\n\nAccordingly, the limitation on recording in section 8- 701 of the Code of Civil Procedure was not\navailable in these circumstances.\n\nThis office does not condone aggressive behavior by persons filming such as you\nallege and understands that some persons may be discouraged from addressing the Board\nbecause of being filmed and the recording being posted online. Nonetheless, because OMA\n\nspecifically provides that any person may record the proceedings at open meetings, your\ncomplaint that the Board allowed the recording to continue does not allege a violation of OMA.\nTherefore, no further action is warranted in this matter. If you have any questions, you may\n\ncontact me at clucentemccullough@atg. state. il.us or (312) 814- 5383.\nVery truly yours,\n\nCHRISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n64702 o no fi war co\n\ncc:\n\nMs. Keri Nusbaum\n\nSecretary/ Fredom of Information Officer\n\nPiatt County Board\n101 West Washington Street, Courthouse Room 107\nMonticello, Illinois 61856\n\n3 Section 2. 06(g) of OMA\npublic officials\n\nunder the rules established\n\nprovides that \"[ a] ny person shall be permitted an opportunity to address\nby the public body.\""}
{"id":1337,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-02-04","case_number":null,"request_numbers":["64798"],"title":"Lindenhurst Park District Board did not violate OMA by deciding agenda item outside meeting","filename":"64798, issued February 4, 2021.pdf","rel_path":null,"word_count":1351,"summary":"A requester alleged that the Lindenhurst Park District Board held an improper, unscheduled meeting to decide against placing his motion on a future meeting agenda. The PAC determined that the Board's communications regarding the agenda request did not constitute an improper meeting under the Open Meetings Act.","plain_summary":"A citizen complained that a park district board must have held an illegal secret meeting because they decided not to put his requested topic on their agenda. The Attorney General's office investigated and found that the board members did not hold an improper meeting, as the decision was handled through staff and did not involve a prohibited 'chain of discussion' among board members. Furthermore, the PAC noted that deciding whether to include an item on an agenda is a procedural step, not a final action that requires a public meeting.","holding":"The Lindenhurst Park District Board did not violate the Open Meetings Act by discussing and deciding not to place a citizen's motion on its meeting agenda.","legal_question":"Whether the Lindenhurst Park District Board violated the Open Meetings Act by discussing and deciding not to place a citizen's motion on a meeting agenda outside of a public meeting.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Lindenhurst Park District Board of Commissioners","requesting_party":"Mr. [Name Redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester alleged that the board held an improper meeting to discuss his request to add a motion to the board's agenda.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/64798, issued February 4, 2021.pdf","sha256":"f7049740a5070cb7ba8b77903abac47ae8d1c83e0da152f38c4e699040271702","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","agenda","park district","secret meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 4, 2021\n\nVia electronic mail\n\nVia electronic mail\nMr. Adam B. Simon\nAncef Glink\n\n175 East Hawthorn Parkway, Suite 145\nVernon Hills, Illinois 60061\nasimon@ancelglink.\n\ncdm\n\nRE: OMA Request for Review — 2020 PAC 64798\nDear\n\nand Mr. Simon:\n\nThis determination\nletter is issued pursuant to section 3. 5( e) of the Open Meetings\n120/ 3. 5(\nWest 2018)).\n\nAct ( OMA) ( 5 ILCS\n\ne) (\n\nFor the reasons that follow, the Public Access\n\nBureau concludes that the Lindenhurst Park District (District) Board of Commissioners (Board)\n\ndid not hold an improper meeting to discuss placing a matter on its agenda..\nOn September 12, 2020,\n\nsubmitted a Request for Review\n\nalleging, in pertinent part, that the Board held an unscheduled Board meeting to discuss his\n\nstates that on August 23, 2020, he sent the Board a motion and requested that it be\n\nplaced on the agenda for the September 8, 2020, meeting. Further, he received a response on\n\nSeptember 6, 2020, stating that the Board had received and reviewed his request and decided not\nto place the request on the agenda.\nstated that he was not aware Of any Board\n\nmeeting scheduled in the time between the submission of his motion and his receipt of the e- mail\n\nat which the Board could have discussed his request, therefore, he alleged, the Board must have\n\nheld an improper meeting.\n\n500 South Sccond Street, Springfield, Illinois 62701 • ( 217) 782. 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph\n60601 • ( 312) 814- 3000\n• TTY: ( 800) 964. 3013 • Fax: ( 312) 814-3806\nUniversityStreet, Chicago, Illinois,\nIllinois\n6400 •\n601 South\n\nAve., Carbondale,\n\n62901 • (\n\n618) 529-\n\nTTY: (\n\n877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMr. Adam B. Simon\n\nFebruary 4, 2021\nPage 2\n\nOn September 25, 2020, this office forwarded a copy of\nRequest for Review to the Board and asked it to provide a written response to\nallegation. The Board responded on September 30, 2020.\n\nreplied on October\n\n5, 2020.\n\nDETERMINATION\n\nAs an initial matter, this office notes that\n\nRequest for Review\n\nalso alleges that the Board is refusing to respond or accept his request for information through\nquestions or a motion, and denying his requests to address the Board. In e- mail correspondence\n\nwith an Assistant Attorney General in the Public Access Bureau on September 18, 2020,\n\nclarified that he was not alleging that the Board was denying him the opportunity to\n\nparticipate during its period for public comments. The Public Access Counselor' s authority to\n\nresolve disputes is limited to alleged violations of OMA and the Freedom of Information Act ( 5\nILCS 140/ 1 et seq. ( West 2018)).\n\nSee 15 ILCS 205/ 7( c)( 3) ( West 2018). No provision of OMA\n\nrequires a public body to place an item on its agenda when suggested by a member of the public,\nor grant a member of the public the opportunity to be added to an agenda. Accordingly, the\n\nconcerns raised in\n\nRequest for Review and reply about the Board' s refusal to\n\ndiscuss his suggested topic and the underlying disagreement between\n\nand the\n\nBoard about that topic do not allege a violation of OMA.\n\nSection 2 of OMA ( 5 ILCS 120/ 2 ( West 2018), as amended by Public Acts 101031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that \" all meetings of\npublic bodies shall be open to the public unless excepted in subsection ( c) and closed in\n\naccordance with Section 2a.\" Section 1. 02 ( 5 ILCS 120/ 1. 02 ( West 2018)) defines a meeting as:\nA] ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means ( such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous\n\ninteractive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 -member\n\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business.\n\nThe Board consists of five members; thus if three or more members of the Board\n\nengage\n\nin a contemporaneous, interactive, deliberative discussion of public\nbusiness, then the\n\n\fMr. Adam B. Simon\n\nFebruary 4, 2021\nPage 3\n\ngathering\nwould constitute a \" meeting\" subject to the procedural safeguards and requirements of\nOMA.\n\nIn its response to the Request for Review, the Board explained that the District' s\n\nExecutive Director (who is not a member ofthe Board) conferred separately with four ofthe five\n\nBoard members concerning\nrequest to be placed on the agenda for the\nSeptember 8, 2020, meeting. The Board further explained that during those separate, individual\n\ndiscussions, the Executive Director gathered the consensus that the Board would not add\n\nto the agenda, and he thereafter communicated that consensus to\nNotably, no consensus of the Board is required for the Executive Director to place items on an\n\nagenda. Rather the Executive Director sought out opinions of various Board members with\nrespect to\nrequest. The Board argued that these four separate, individual\n\ndiscussions between the Executive Director and Board members did not constitute a meeting of\nthe Board because at no time did three or more members of the Board ever gather, in person or\nelectronically, for the purpose of discussing\nrequest. In his reply,\nexplained the importance of the item he requested to add to the Board' s agenda.\nBased on the available information, there is no evidence that three or more\n\nmembers of the five -member Board engaged in contemporaneous interactive communications\nconcerning a matter of District or Board business. Separate conversations between the District's\n\nExecutive Director and individual Board members do not constitute a \" meeting\" ofthose four\n\nBoard members under the definition of that term in section 1. 02 ofOMA. Accordingly, this\n\noffice concludes that the Board did not hold an improper meeting prior to September 6, 2020, to\ndiscuss\n\nrequest.\n\nThis office further notes that section 2( e) of OMA ( 5 ILCS 120/ 2(e) ( West 2018))\n\nprovides that \"[ njo final action may be taken at a closed meeting. Final action shall be preceded\n\nby a public recital of the nature of the matter being considered and other information that will\ninform the public of the business being conducted.\" This office has determined that a public\nbody violated OMA when it reached a decision on a matter of public business through individual\n\ncommunications with public body members and took action to implement that decision. See Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 58555, issued August 20, 2019 (finding that a Board's decision to\n\nsuspend camping in a park, reached after a series of two -member conversations among Board\n\nmembers outside ofan open meeting, violated OMA). Here the conversations were not a chain\n\nof discussions between Board members, which can violate the spirit, if not the letter, of OMA,\n\nbut involved discussions between a park district employee and Board members. In addition. a\n\ndecision to place or not place items on the agenda is not final action— it is a procedural step\n\nneeded\nthe substantive issues to beissues.\ndiscussed\nor acted upon at a meeting. Section 2( e)\nOMAto identify only\nSee Ill. Att'\n\nof\n\ngoverns\n\nvotes on substantive\n\ny Gen. PAC\n\nReq. Rev. Ltr. 44862,\n\n\fMr. Adam B. Simon\n\nFebruary 4, 2021\nPage 4\n\nissued December 12, 2016. Therefore, the Board did not violate section 2( e) of OMA by\n\ndeclining to place\n\nitem on the agenda for discussion or action.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814- 6437, lbartelt@atg.state.il.us, or the Chicago address listed on the first page of this\nletter. This file is closed.\nVery truly yours,\n\nLEAH BARTELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n64798 o 2a meeting proper pkd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A park district board's discussion of a citizen's agenda motion","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-64798/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 4, 2021\n\nVia electronic mail\n\nVia electronic mail\nMr. Adam B. Simon\nAncef Glink\n\n175 East Hawthorn Parkway, Suite 145\nVernon Hills, Illinois 60061\nasimon@ancelglink.\n\ncdm\n\nRE: OMA Request for Review — 2020 PAC 64798\nDear\n\nand Mr. Simon:\n\nThis determination\nletter is issued pursuant to section 3. 5(e) of the Open Meetings\n120/ 3. 5(West 2018)).\n\nAct (OMA) (5 ILCS\n\ne) (For the reasons that follow, the Public Access\n\nBureau concludes that the Lindenhurst Park District (District) Board of Commissioners (Board)\n\ndid not hold an improper meeting to discuss placing a matter on its agenda..\nOn September 12, 2020,\n\nsubmitted a Request for Review\n\nalleging, in pertinent part, that the Board held an unscheduled Board meeting to discuss his\n\nstates that on August 23, 2020, he sent the Board a motion and requested that it be\n\nplaced on the agenda for the September 8, 2020, meeting. Further, he received a response on\n\nSeptember 6, 2020, stating that the Board had received and reviewed his request and decided not\nto place the request on the agenda.\nstated that he was not aware Of any Board\n\nmeeting scheduled in the time between the submission of his motion and his receipt of the e- mail\n\nat which the Board could have discussed his request, therefore, he alleged, the Board must have\n\nheld an improper meeting.\n\n500 South Sccond Street, Springfield, Illinois 62701 • (217) 782. 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n100 West Randolph\n60601 • (312) 814- 3000\n• TTY: (800) 964. 3013 • Fax: (312) 814-3806\nUniversityStreet, Chicago, Illinois,\nIllinois\n6400 •\n\nOn September 25, 2020, this office forwarded a copy of\nRequest for Review to the Board and asked it to provide a written response to\nallegation. The Board responded on September 30, 2020.\n\nreplied on October\n\n5, 2020.\n\nDETERMINATION\n\nAs an initial matter, this office notes that\n\nRequest for Review\n\nalso alleges that the Board is refusing to respond or accept his request for information through\nquestions or a motion, and denying his requests to address the Board. In e- mail correspondence\n\nwith an Assistant Attorney General in the Public Access Bureau on September 18, 2020,\n\nclarified that he was not alleging that the Board was denying him the opportunity to\n\nparticipate during its period for public comments. The Public Access Counselor's authority to\n\nresolve disputes is limited to alleged violations of OMA and the Freedom of Information Act (5\nILCS 140/ 1 et seq. (West 2018)).\n\nSee 15 ILCS 205/ 7(c)(3) (West 2018). No provision of OMA\n\nrequires a public body to place an item on its agenda when suggested by a member of the public,\nor grant a member of the public the opportunity to be added to an agenda. Accordingly, the\n\nconcerns raised in\n\nRequest for Review and reply about the Board's refusal to\n\ndiscuss his suggested topic and the underlying disagreement between\n\nand the\n\nBoard about that topic do not allege a violation of OMA.\n\nSection 2 of OMA (5 ILCS 120/ 2 (West 2018), as amended by Public Acts 101031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that \" all meetings of\npublic bodies shall be open to the public unless excepted in subsection (c) and closed in\n\naccordance with Section 2a.\" Section 1. 02 (5 ILCS 120/ 1. 02 (West 2018)) defines a meeting as:\nA] ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous\n\ninteractive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5 -member\n\npublic body, a quorum of the members of a public body held for\n\ngathering\nwould constitute a \" meeting\" subject to the procedural safeguards and requirements of\nOMA.\n\nIn its response to the Request for Review, the Board explained that the District's\n\nExecutive Director (who is not a member ofthe Board) conferred separately with four ofthe five\n\nBoard members concerning\nrequest to be placed on the agenda for the\nSeptember 8, 2020, meeting. The Board further explained that during those separate, individual\n\ndiscussions, the Executive Director gathered the consensus that the Board would not add\n\nto the agenda, and he thereafter communicated that consensus to\nNotably, no consensus of the Board is required for the Executive Director to place items on an\n\nagenda. Rather the Executive Director sought out opinions of various Board members with\nrespect to\nrequest. The Board argued that these four separate, individual\n\ndiscussions between the Executive Director and Board members did not constitute a meeting of\nthe Board because at no time did three or more members of the Board ever gather, in person or\nelectronically, for the purpose of discussing\nrequest. In his reply,\nexplained the importance of the item he requested to add to the Board's agenda.\nBased on the available information, there is no evidence that three or more\n\nmembers of the five -member Board engaged in contemporaneous interactive communications\nconcerning a matter of District or Board business. Separate conversations between the District's\n\nExecutive Director and individual Board members do not constitute a \" meeting\" ofthose four\n\nBoard members under the definition of that term in section 1. 02 ofOMA. Accordingly, this\n\noffice concludes that the Board did not hold an improper meeting prior to September 6, 2020, to\ndiscuss\n\nrequest.\n\nThis office further notes that section 2(e) of OMA (5 ILCS 120/ 2(e) (West 2018))\n\nprovides that \"[ njo final action may be taken at a closed meeting. Final action shall be preceded\n\nby a public recital of the nature of the matter being considered and other information that will\ninform the public of the business being conducted.\" This office has determined that a public\nbody violated OMA when it reached a decision on a matter of public business through individual\n\ncommunications with public body members and took action to implement that decision. See Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 58555, issued August 20, 2019 (finding that a Board's decision to\n\nsuspend camping in a park, reached after a series of two -member conversations among Board\n\nmembers outside ofan open meeting, violated OMA). Here the conversations were not a chain\n\nof discussions between Board members, which can violate the spirit, if not the letter, of OMA,\n\nbut involved discussions between a park district employee and Board members. In addition. a\n\ndecision to place or not place items on the agenda is not final action— it is a procedural step\n\nneeded\nthe substantive issues to beissues.\ndiscussed\nor acted upon at a meeting. Section 2(e)\nOMAto identify only\nSee Ill. Att'\n\nissued December 12, 2016. Therefore, the Board did not violate section 2(e) of OMA by\n\ndeclining to place\n\nitem on the agenda for discussion or action.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814- 6437, lbartelt@atg.state.il.us, or the Chicago address listed on the first page of this\nletter. This file is closed.\nVery truly yours,\n\nLEAH BARTELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n64798 o 2a meeting proper pkd"}
{"id":1339,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-04-04","case_number":null,"request_numbers":["65149"],"title":"Village of Burr Ridge did not violate OMA by offering reasonable times for trustee to review closed session recordings","filename":"65149, issued April 4, 2025.pdf","rel_path":null,"word_count":1727,"summary":"A former Village of Burr Ridge trustee alleged the Board violated the Open Meetings Act by failing to provide timely access to closed session recordings prior to a scheduled vote. The PAC determined that the Village's efforts to schedule a mutually convenient time for the trustee to listen to the recordings did not constitute an unreasonable delay or denial of access.","plain_summary":"A former village trustee complained that the village board blocked him from listening to recordings of closed-door meetings before a vote. The Attorney General's office reviewed the case and found that the village made reasonable efforts to schedule a time for him to listen to the recordings. Therefore, the village did not break the law.","holding":"The Village of Burr Ridge did not violate section 2.06(e) of the Open Meetings Act because its attempts to schedule a time for the trustee to review the recordings were reasonable.","legal_question":"Whether a public body violates section 2.06(e) of the Open Meetings Act by failing to provide a trustee access to closed session recordings prior to a specific meeting date when the public body has offered alternative times for review.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Burr Ridge","requesting_party":"Former Trustee","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"Access to closed session meeting recordings by a member of the public body.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_e/65149, issued April 4, 2025.pdf","sha256":"c551ad80e71f000e480d42721435f165d39435531031abc7603b38879e530674","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting recordings","trustee access","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"April 4, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Gary Grasso\n\nMayor\nVillage of Burr Ridge\n\n[street address redacted for site publication -- see original PDF]\nggrasso@burr-ridge.gov\nRE: OMA Request for Review – 2020 PAC 65149\nDear\n\nand Mayor Grasso:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). 1\nOn October 9, 2020,\n\nwho was then a trustee for the Village of\n\nBurr Ridge, submitted a Request for Review to this office alleging that the Village of Burr Ridge\nVillage) Board of Trustees ( Board) violated OMA by refusing his request to listen to the\n\nrecordings of certain closed sessions prior to the Board's October 12, 2020, meeting, in which the\nBoard was expected vote on employment matters that were likely discussed in these closed\n\nsessions.2\n\nalso alleged that Board's refusal to provide him access to listen to the closed\n\n1In issuing this letter, we recognize that it is coming long after the allegations were raised and that\nis no longer a trustee. Because the Request for Review raises a legal question that may reoccur, however,\nthis letter is intended to provide guidance to the requester and public body.\n2Based upon the materials provided, the closed session recordings requested were for the Board's\nSeptember 14, 2020, and September 28, 2020, closed sessions, where\nwas not present, and from an\n\n\fThe Honorable Gary Grasso\nApril 4, 2025\n\nPage 2\nmeetings prior to the October 12, meeting was unreasonable. On October 14 and October 15,\n2020, Mr. Mottl provided additional correspondence to this office in which\n\nstated that\n\nalthough the October 12, 2020, meeting has passed he still wished to listen to the closed session\nrecordings, and alleged that the Board violated OMA by failing to make reasonable\n\naccommodations for him to listen to the recordings.\n\nRequest for Review included e-\n\nmails between himself and Village administrative officials and Board officials. This office\n\nforwarded a copy of\n\nRequest for Review to the Board and asked it to provide a\n\nwritten response to the allegations.\nOn October 29, 2020, the Village' s attorney, Mr. Michael K. Durkin, provided a\n\nresponse on the Board's behalf, which included affidavits from Mr. Gary Grasso, the Village\nMayor, and Mr. Evan Walter, the Village' s Assistant Administrator and Deputy Clerk, as well as\n\na variety of e-mail correspondence.3 Subsequently, the Public Access Bureau forwarded the\nBoard' s written response to\n\nHe did not reply.\n\nSection 2.06( e) of OMA ( 5 ILCS 120/ 2.06(e) ( West 2018)) provides in pertinent part:\nAccess to verbatim recordings shall be provided to duly elected\n\nofficials or appointed officials filling a vacancy of an elected office\nin a public body, and access shall be granted in the public body' s\n\nmain office or official storage location, in the presence of a records\nsecretary, an administrative official of the public body, or any\n\nelected official of the public body. No verbatim recordings shall be\nrecorded or removed from the public body' s main office or official\n\nstorage location, except by vote of the public body or by court\norder.\nThe plain language of section 2.06( e) of OMA allows elected members, or\n\nappointed members filling a vacancy of an elected office, to review verbatim recordings at\nspecific locations in the presence of an elected official of the public body or certain other\n\npersonnel. However, section 2.06(e) does not address the specific timing of access by a Board\nmember, nor does it set forth a specific procedure for requesting access. In addition, section\n\n2.06(e) does not require a public body to make each of the listed individuals available for\noversight, nor does it require that a trustee be allowed to pick and choose which individual will\n\nprovide oversight. Under section 2.06(e), arrangements must be made to accommodate the\nschedules of the person seeking access and the official that must be present. \" Thus, section\n\nadditional closed session meeting immediately prior to those meetings, the date of which was never specifically\nprovided.\n3Mr. Walter is currently the Village Administrator but is referred to herein as Assistant\nAdministrator.\n\n\fThe Honorable Gary Grasso\nApril 4, 2025\n\nPage 3\n2.06(e) necessarily contemplates that a closed session verbatim recording may not be\nimmediately available to a Board member, as arrangements must be made for appropriate\n\noversight.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 52345, issued February 19, 2019, at 5 (public\nbody did not violate section 2.06( e) where there was no evidence that it refused a trustee' s\n\nrequest to listen to a closed session recording or that the delay was so unreasonable that it\neffectively constituted a denial).\nThe Public Access Bureau has reviewed the materials\n\nand the Board\n\nprovided to this office. The materials submitted by the Board indicate that because the Village's\nsenior staff had become apprehensive about interacting with\n\nMayor directed senior staff that\n\ndue to past conflicts, the\n\nshould communicate only with the Mayor whenever\n\nhe required information to perform his public duties. That directive was communicated via e-\n\nmail to the other trustees, including\n\non January 20, 2020, which is before the dispute\n\nat issue in this matter arose.\nOn September 30, 2020,\n\nsent correspondence to the Assistant\n\nAdministrator, using his personal e-mail address, stating that he wished to review the closed\nsession recordings from the last three closed sessions, and asked that the recordings be prepared\n\nso he could come and listen next week. The Assistant Administrator responded that\nshould send any requests to his work e- mail address. On Wednesday, October 7, 2020, at 6:54\n\na.m.,\n\ne-mailed the Assistant Administrator, using both his personal and work e-mail\n\naddresses, asking \" Are the recordings ready yet?\" 4 That same day at 7:54 a.m. Mayor Grasso\n\nresponded:\nClosed sessions recordings cannot be copied or remove[d]\nfrom the Village' s main office. An elected official or\n\nadministrative officer must be present. I will be present for the\nVillage at the Village Hall if you want to listen to them. I'm\n\navailable October 13 or 14 next week between 10am and Noon or\n2:00pm to 4:00 pm. Choose one of those dates and time.[ 5]\nand the Mayor continued their e-mail correspondence that morning without scheduling\n\na mutually convenient time for\n\nto listen to the recordings. The Board's response to this\n\noffice stated that at approximately 10: 45 a.m. on October 7, 2020,\n\nappeared at Village\n\nHall where the Assistant Administrator advised him that he needed to interact with the Mayor.\nBecause\n\nrang a bell located at the front counter for several minutes and would not\n\nleave after the Assistant Administrator spoke with him, the Assistant Administrator called the\n4E- mail from\nBurr Ridge (October 7, 2020).\n\nto Evan Walter, cc'd to David Giuliani, Patch, and Douglas Pollock,\n\n5E- mail from Gary Grasso to [\n\nOctober 7, 2020).\n\n\fThe Honorable Gary Grasso\nApril 4, 2025\n\nPage 4\npolice to intervene. Thereafter,\nmail, with\n\nand the Mayor continued their correspondence by e-\n\ninsisting that he be able to listen to the requested closed session recordings\n\nprior to the Board's October 12, 2020, meeting, with any administrative official present. On\nOctober 9, 2020, the Mayor advised\n\nthat if he could get another trustee to take his\n\nplace to sit and listen to the closed session recordings with him he would \"gladly pass the\nbaton.\" 6 While it is unclear whether\n\nthat\n\ncontacted any other trustee to do so, it is clear\n\nand the mayor did not agree to a time for\n\nto listen to the recordings\n\nbefore the Monday, October 12, 2020, meeting.\nAfter the October 12, 2020, meeting,\n\ncommunicate to find a convenient time for\n14, 2020, agreed that\n\nand the Mayor continued to\n\nto listen to the recordings, and on October\n\nwould come to Village Hall in the morning of October 15, 2020,\n\nto listen to the recordings. The Mayor asked\n\nto appear at 9:00 a.m. because he was\n\nonly available until 10: 30 a.m. and listening to the recordings would take about 90 minutes.\n\ndid not agree to that time, saying that he would be there sometime in the morning.\narrived at Village Hall on October 15, 2020, at 11: 20 a.m. but was not allowed access to\n\nthe recordings because the mayor was no longer present. The Mayor also informed\nthat he could meet him at Village Hall to listen to the recordings at specific times on October 21,\n\n23, 26, and October 27, 2020.\nIn summary, on January 20, 2020, the Mayor informed\n\nto communicate\n\nwith him to obtain information from the Village. The Mayor, as an elected official, is one of the\n\nindividuals allowed to be present when a trustee listens to a closed session recording. Instead of\ncontacting the Mayor, on September 30, 2020,\n\nsent correspondence to the Assistant\n\nAdministrator at his personal e-mail address. Not until October 7, 2020, did\ncommunicate with the Mayor regarding his request to listen to closed session recordings. On\n\nOctober 7, 2020, the Mayor offered\n\na couple of dates for him to come to Village Hall,\n\none of which was on Tuesday October 13, 2020, four business days after\n\ncorresponding with the Mayor. The Mayor also informed\n\nbegan\n\nthat if he made\n\narrangements with another trustee, he could review the recordings in that trustee' s presence. In\n\naddition, the Mayor had offered\n\nseven different dates for him to come and listen to the\n\nrecordings. While none of the proffered times was before the October 12, 2020, meeting, the\n\nattempt to schedule a mutually convenient time was neither a refusal nor a delay so unreasonable\nthat it effectively constituted a denial to listen to the recordings. Accordingly, given the specific\n\ncircumstances present in this matter, this office is unable to conclude that the Board violated\nsection 2.06( e) of OMA.\n\n6E- mail from Gary Grasso to\n\nOctober 9, 2020).\n\n\fThe Honorable Gary Grasso\nApril 4, 2025\n\nPage 5\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at 312-814-5201 or at edie.steinberg@ilag.gov.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n65149 o 206e proper mun\ncc:\n\nVia electronic mail\nMr. Michael K. Durkin\n\nStorino, Ramello & Durkin\n9501 West Devon Avenue, Suite 800\n\nRosemont, Illinois 60018\nmdurkin@srd- law. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session recordings for a trustee's review","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65149/","full_text":"April 4, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Gary Grasso\n\nMayor\nVillage of Burr Ridge\n\n[street address redacted for site publication -- see original PDF]\nggrasso@burr-ridge.gov\nRE: OMA Request for Review – 2020 PAC 65149\nDear\n\nand Mayor Grasso:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). 1\nOn October 9, 2020,\n\nwho was then a trustee for the Village of\n\nBurr Ridge, submitted a Request for Review to this office alleging that the Village of Burr Ridge\nVillage) Board of Trustees (Board) violated OMA by refusing his request to listen to the\n\nrecordings of certain closed sessions prior to the Board's October 12, 2020, meeting, in which the\nBoard was expected vote on employment matters that were likely discussed in these closed\n\nsessions.2\n\nalso alleged that Board's refusal to provide him access to listen to the closed\n\n1 In issuing this letter, we recognize that it is coming long after the allegations were raised and that\nis no longer a trustee. Because the Request for Review raises a legal question that may reoccur, however,\nthis letter is intended to provide guidance to the requester and public body.\n2 Based upon the materials provided, the closed session recordings requested were for the Board's\n\nmeetings prior to the October 12, meeting was unreasonable. On October 14 and October 15,\n2020, Mr. Mottl provided additional correspondence to this office in which\n\nstated that\n\nalthough the October 12, 2020, meeting has passed he still wished to listen to the closed session\nrecordings, and alleged that the Board violated OMA by failing to make reasonable\n\naccommodations for him to listen to the recordings.\n\nRequest for Review included e-\n\nmails between himself and Village administrative officials and Board officials. This office\n\nforwarded a copy of\n\nRequest for Review to the Board and asked it to provide a\n\nwritten response to the allegations.\nOn October 29, 2020, the Village's attorney, Mr. Michael K. Durkin, provided a\n\nresponse on the Board's behalf, which included affidavits from Mr. Gary Grasso, the Village\nMayor, and Mr. Evan Walter, the Village's Assistant Administrator and Deputy Clerk, as well as\n\na variety of e-mail correspondence.3 Subsequently, the Public Access Bureau forwarded the\nBoard's written response to\n\nHe did not reply.\n\nSection 2.06(e) of OMA (5 ILCS 120/ 2.06(e) (West 2018)) provides in pertinent part:\nAccess to verbatim recordings shall be provided to duly elected\n\nofficials or appointed officials filling a vacancy of an elected office\nin a public body, and access shall be granted in the public body's\n\nmain office or official storage location, in the presence of a records\nsecretary, an administrative official of the public body, or any\n\nelected official of the public body. No verbatim recordings shall be\nrecorded or removed from the public body's main office or official\n\nstorage location, except by vote of the public body or by court\norder.\nThe plain language of section 2.06(e) of OMA allows elected members, or\n\nappointed members filling a vacancy of an elected office, to review verbatim recordings at\nspecific locations in the presence of an elected official of the public body or certain other\n\npersonnel. However, section 2.06(e) does not address the specific timing of access by a Board\nmember, nor does it set forth a specific procedure for requesting access. In addition, section\n\n2.06(e) does not require a public body to make each of the listed individuals available for\noversight, nor does it require that a trustee be allowed to pick and choose which individual will\n\nprovide oversight. Under section 2.06(e), arrangements must be made to accommodate the\nschedules of the person seeking access and the official that must be present. \" Thus, section\n\nadditional closed session meeting immediately prior to those meetings, the date of which was never specifically\n\n2.06(e) necessarily contemplates that a closed session verbatim recording may not be\nimmediately available to a Board member, as arrangements must be made for appropriate\n\noversight.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 52345, issued February 19, 2019, at 5 (public\nbody did not violate section 2.06(e) where there was no evidence that it refused a trustee's\n\nrequest to listen to a closed session recording or that the delay was so unreasonable that it\neffectively constituted a denial).\nThe Public Access Bureau has reviewed the materials\n\nand the Board\n\nprovided to this office. The materials submitted by the Board indicate that because the Village's\nsenior staff had become apprehensive about interacting with\n\nMayor directed senior staff that\n\ndue to past conflicts, the\n\nshould communicate only with the Mayor whenever\n\nhe required information to perform his public duties. That directive was communicated via e-\n\nmail to the other trustees, including\n\non January 20, 2020, which is before the dispute\n\nat issue in this matter arose.\nOn September 30, 2020,\n\nsent correspondence to the Assistant\n\nAdministrator, using his personal e-mail address, stating that he wished to review the closed\nsession recordings from the last three closed sessions, and asked that the recordings be prepared\n\nso he could come and listen next week. The Assistant Administrator responded that\nshould send any requests to his work e- mail address. On Wednesday, October 7, 2020, at 6:54\n\na.m.,\n\ne-mailed the Assistant Administrator, using both his personal and work e-mail\n\naddresses, asking \" Are the recordings ready yet?\" 4 That same day at 7:54 a.m. Mayor Grasso\n\nresponded:\nClosed sessions recordings cannot be copied or remove[d]\nfrom the Village's main office. An elected official or\n\nadministrative officer must be present. I will be present for the\nVillage at the Village Hall if you want to listen to them. I'm\n\navailable October 13 or 14 next week between 10am and Noon or\n2:00pm to 4:00 pm. Choose one of those dates and time.[ 5]\nand the Mayor continued their e-mail correspondence that morning without scheduling\n\na mutually convenient time for\n\nto listen to the recordings. The Board's response to this\n\noffice stated that at approximately 10: 45 a.m. on October 7, 2020,\n\nappeared at Village\n\nHall where the Assistant Administrator advised him that he needed to interact with the Mayor.\nBecause\n\nrang a bell located at the front counter for several minutes and would not\n\nleave after the Assistant Administrator spoke with him, the Assistant Administrator called the\n\npolice to intervene. Thereafter,\nmail, with\n\nand the Mayor continued their correspondence by e-\n\ninsisting that he be able to listen to the requested closed session recordings\n\nprior to the Board's October 12, 2020, meeting, with any administrative official present. On\nOctober 9, 2020, the Mayor advised\n\nthat if he could get another trustee to take his\n\nplace to sit and listen to the closed session recordings with him he would \"gladly pass the\nbaton.\" 6 While it is unclear whether\n\nthat\n\ncontacted any other trustee to do so, it is clear\n\nand the mayor did not agree to a time for\n\nto listen to the recordings\n\nbefore the Monday, October 12, 2020, meeting.\nAfter the October 12, 2020, meeting,\n\ncommunicate to find a convenient time for\n14, 2020, agreed that\n\nand the Mayor continued to\n\nto listen to the recordings, and on October\n\nwould come to Village Hall in the morning of October 15, 2020,\n\nto listen to the recordings. The Mayor asked\n\nto appear at 9:00 a.m. because he was\n\nonly available until 10: 30 a.m. and listening to the recordings would take about 90 minutes.\n\ndid not agree to that time, saying that he would be there sometime in the morning.\narrived at Village Hall on October 15, 2020, at 11: 20 a.m. but was not allowed access to\n\nthe recordings because the mayor was no longer present. The Mayor also informed\nthat he could meet him at Village Hall to listen to the recordings at specific times on October 21,\n\n23, 26, and October 27, 2020.\nIn summary, on January 20, 2020, the Mayor informed\n\nto communicate\n\nwith him to obtain information from the Village. The Mayor, as an elected official, is one of the\n\nindividuals allowed to be present when a trustee listens to a closed session recording. Instead of\ncontacting the Mayor, on September 30, 2020,\n\nsent correspondence to the Assistant\n\nAdministrator at his personal e-mail address. Not until October 7, 2020, did\ncommunicate with the Mayor regarding his request to listen to closed session recordings. On\n\nOctober 7, 2020, the Mayor offered\n\na couple of dates for him to come to Village Hall,\n\none of which was on Tuesday October 13, 2020, four business days after\n\ncorresponding with the Mayor. The Mayor also informed\n\nbegan\n\nthat if he made\n\narrangements with another trustee, he could review the recordings in that trustee's presence. In\n\naddition, the Mayor had offered\n\nseven different dates for him to come and listen to the\n\nrecordings. While none of the proffered times was before the October 12, 2020, meeting, the\n\nattempt to schedule a mutually convenient time was neither a refusal nor a delay so unreasonable\nthat it effectively constituted a denial to listen to the recordings. Accordingly, given the specific\n\ncircumstances present in this matter, this office is unable to conclude that the Board violated\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at 312-814-5201 or at edie.steinberg@ilag.gov.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n65149 o 206e proper mun\ncc:\n\nVia electronic mail\nMr. Michael K. Durkin\n\nStorino, Ramello & Durkin\n9501 West Devon Avenue, Suite 800\n\nRosemont, Illinois 60018\nmdurkin@srd- law. com"}
{"id":1340,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-01-08","case_number":null,"request_numbers":["65194"],"title":"Pearl City School Board did not violate recital requirement for policy changes","filename":"65194, issued January 8, 2021.pdf","rel_path":null,"word_count":3802,"summary":"The requester alleged that the Pearl City School District Board violated the Open Meetings Act by approving policy revisions without providing the public with the specific proposed changes. The PAC determined that the Board did not violate the public recital requirement of the Act.","plain_summary":"A citizen complained that a school board approved changes to 22 policies without showing the public what those changes were during their meetings. The Attorney General's office reviewed the recordings and concluded that the board followed the law regarding public recitals. This means the board was not required to read or display every specific policy change during the meeting to comply with the Open Meetings Act.","holding":"The Board of Education of Pearl City Community Unit School District No. 200 did not violate the public recital requirement of the Open Meetings Act.","legal_question":"Whether the Board of Education violated the public recital requirement of the Open Meetings Act by failing to share specific proposed policy changes with the public prior to voting on them.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of Pearl City Community Unit School District No. 200","requesting_party":"Ms. Deborah F. Weiss","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The board's process for approving revisions to school board policies during public meetings.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/65194, issued January 8, 2021.pdf","sha256":"56b9e54582ad9adc0df0c3ea7aad23167a9139135fe6ea33160da4071710052f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school board","policy revision","public recital","meeting transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJanuary 8, 2021\n\nVia electronic mail\nMs. Deborah\n\nF. Weiss\n\nWhitted Takiff LLC\n[street address redacted for site publication -- see original PDF]\ndweiss@whittedtakifflaw. com\nVia electronic mail\n\nMr. Tyler J. Bohman\n\nAttorney\nRobbins Schwartz\n\n55 West Monroe Street, Suite 800\nChicago, III inois 60603- 5144\ntbohman@robbins- schwartz. com\n\nRE:\n\nOMA Request for Review — 2020 PAC 65194\n\nDear Ms. Weiss and Mr. Bohman:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)).\n\nFor the reasons discussed below, the Public Access\n\nBureau concludes that the Board of Education ( Board) of Pearl City Community Unit School\nDistrict No. 200 ( District) did not violate the public recital requirement of OMA in connection\nwith its August 19, 2020, and September 23, 2020, meetings\nOn October 13, 2020, Ms. Deborah F. Weiss submitted a Request for Review to\n\nthe Public Access Bureau via e- mail alleging that the Board violated OMA in connection with its\n\nAugust 19, 2020, and September 23, 2020, meetings by \" vot[ ing] to approve the revision of 22\ndifferent School Board Policies without sharing the changes being proposed with the public. i'\n\nMs. Weiss alleged that during the Board' s August 19, 2020, meeting, the Board held a \"' first\nLetter from Deborah F. Weiss, Whitted TakiffLLC, to Sarah Pratt, Public Access Counselor,\n\nOffice ofthe Attorney General ( October 13, 2020), at [ 1].\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph\n601 South\n\nStreet, Chicago,\n\nIllinois\n\n60601 • (\n\n312)\n\n814- 3000 •\n\nTTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\nUniversity Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Deborah\n\nF. Weiss\n\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 2\n\nreading'\n\nof the agenda item \"' Amended/ New Board Policies,'\" which simply consisted of the\n\nBoard President, Mr. Chad Bremmer, reading the agenda item verbatim. The agenda item\nprovided:\n\n7. First Reading of Amended/ New Board Policies - 2: 220 -School\nBoard Meeting Procedure; 2: 220- E9- Requirements for no\nphysical presence of quorum and participation by audio or video\nduring disaster declaration; 4: 180 -Pandemic Preparedness; 7: 40 Non -public students, including parochial and home - schooled\nstudents;\n\n7: 190- Student Behavior;\n\n7: 190- E2- Student\n\nHandbook\n\nChecklist; 7: 340- Student records; 7: 345- Use of Educational\n\nTechnology, student data and privacy; 2: 25042- Immediately\nAvailable district public reports and records; 2: 260- Uniform\nGrievance Procedure; 2: 265- Title IX Sexual Harassment\nGrievance procedure;\n\n2: 265- E- Title IX Sexual Harassment\n\nGlossary of Terms; 5: 10- Equal Employment Opportunity and\nMinority recruitment; 5: 20 Workplace Harassment Prohibited;\n5.: 100- Staff Development Program; 5: 200 Terms and Conditions\nof Employment and Dismissal; 5: 220- Substitute Teachers; 5: 330 Sick Days, Vacation, Holidays, and Leaves; 7: 10 Equal\n\nEducational Opportunities; 7: 20 Harassment of Students\n\nProhibited; 7: 180- Prevention of and Response to Bullying,\nIntimidation, and Harassment; 7: 185 - Teen Dating Violence\nProhibited — Informational\n\nOnlyl2l\n\nMs. Weiss alleged that \"[ t] he specific changes to current policies and/ or the new policies being\ndescribed or shared in the reading[,]\"\n\nclaiming that the closest the Board came\nto identifying the proposed changes was when Superintendent Michael Schiffman stated that the\nproposed\n\nwere\n\nnot\n\nrecommended changes were included in the meeting' s Board packet.' She argued:\nEven presuming that a person knows that the board packets, or a\nversion thereof, is posted online and how to access them, and that\nthis somehow constitutes public discussion,\n\nthe specific changes\n\nbeing proposed to the board policies are not identified. The only\ndocument included in the board packet that references the school\n\nPearl City Community Unit School District No. 200 Board of Education, Meeting, Agenda Item\n7, First Reading of Amended/ New Board Policies ( August 19, 2020).\n3Letter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\nOffice of the Attorney General ( October\n\n13, 2020),\n\nat [\n\n1].\n\n\fMs. Deborah F. Weiss\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 3\n\nboard policies serves primarily to describe why those identified\npolicies are being changed as opposed to describing the actual\nchanges themselves. 141\nMs. Weiss enclosed a copy of this document, titled \" Revisions to Policies,\nAdministrative Procedures, and Exhibits. i5 The left- hand column has a row for each policy\nnumber and name, while the right- hand column gives corresponding descriptions. The\n\ndescriptions vary in length and detail, with some indicating minor or technical changes. For\ninstance, the description for both \" 7: 40, Nonpublic School Students, Including Parochial and\nHome -Schooled Students\" and \" 7: 220 -AP, Electronic Recordings on School Buses\" is: \" The\nprocedure is unchanged.\n\nThe footnotes are updated in response to a five- year review. i6 Other\n\ndescriptions note that the policy is new. For example, the description for \" 7: 345, Use of\n\nEducational Technologies; Student Data Privacy and. Security,\" is \" NEW. The policy is created\nto facilitate implementation of 105 ILCS 85/ amended by P. A. 101- 516, eff. 7- 1- 21, which\nrequires districts to take a number of actions to protect online student data and to share general\n\ninformation about how student data is used.\" 7 An example of one of the lengthier descriptions,\nfor \" 7: 340, Student\n\nRecords,\"\n\nis:\n\nThe policy, Legal References, footnotes, and Cross\nReferences are updated. The policy is updated with continuous\nimprovement changes based on feedback from the III. Council of\nSchool Attorneys. The Legal References are updated to include\n\nreference to 105 ILCS 85/. New policy 7: 345 Technologies;\nStudent Data Privacy and Security, has been added to the Cross\nReferences. The footnotes are updated in response to:\n\n1. 105 ILCS 85/, amended by P. A. 101- 516, eff. 7- 1- 21.\n\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice ofthe Attorney General ( October 13, 2020), at [ 1].\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 44), available at https:// www. pcwolves. net/ UserFiles/ Servers/ Server_ 110375/ File/ 8- 19-\n\n20% 20 Brd%20 Meeting% 20lnfo%20for%20web%202. pdf.\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 45], available\n\nat https:// www. pcwolves. net/ UserFiles/ Servers/ Server\n\n110375/ File/ 8- 19-\n\n20% 20 Brd%20 Meet in g% 20In fo% 20for% 20web% 202. pdf.\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 46], available at https:// www. pcwolves. net/ UserFiles/ Servers/ Server 110375/ File/ 8- 1920% 20Brd% 20Meeting% 20lnfo% 20for% 20web% 202. pdf.\n\n\fMs. Deborah F. Weiss\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 4\n\n2. U. S. Dept. of Education ( DOE) guidance on the Family\nEducational Rights and Privacy Act ( FERPA) and virtual learning.\n3. Updated joint guidance issued by the DOE and U. S.\nDept. of Health and Human Services on the application of FERPA\n\nand the Health Insurance Portability and Accountability Act of\n1996 to student health records. l81\n\nMs. Weiss further alleged that at the next Board meeting on September 23, 2020,\nthe relevant agenda item was read verbatim and then a single vote was taken to approve the\n\nrevised policies as a group. i9 The agenda item was unchanged from the previous meeting,\nexcept that instead of \"First Reading\" at the start it said \" Approval,\" and instead of\nInformational Only\" at the end it said \" Potential Action Item.\"°\nShe claimed that \"[ a] gain,\nthere was no public description or discussion of the changes being proposed nor was there a vote\n\nindividually.\"' Ms. Weiss asserted: \" This failure to share\nin an open meeting the actual changes to board policies being proposed and then to adopt those\nunspecified changes to 22 different policies in a single vote is concerning and seemingly\nviolative of Illinois' Open Meeting[ s]\n\nas\n\nto proposed\n\nchanges\n\nto each policy\n\nThe Public Access Bureau construed Ms. Weiss' Request for Review as alleging a\npotential violation of section 2( e) of OMA ( 5 ILCS 12012( e) ( West 2018), as amended by Public\nActs 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019), which provides:\n\nNo final action may be taken at a closed meeting. Final action shall be preceded by a public\nrecital of the nature of the matter being considered and other information that will inform the\npublic of the business being conducted.\"\n\nOn October 20, 2020, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to Board President Bremmer. This office also sent Mr. Bremmer a letter seeking\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 45], available at https:// www.pcwolves. net/ UserFiles/ Servers/ Server 110375/ File/8- 19-\n\n20% 20 Brd% 20Meeti ng%20lnfo%20for%20web% 202. pdf.\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice of the Attorney General ( October 13, 2020), at [ 1].\n\n1° Pearl City Community Unit School District No. 200 Board of Education, Meeting, Agenda Item\nG. 5., Approval of Amended/ New Board Policies ( September 23, 2020).\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice of the Attorney General ( October 13, 2020), at [ 1].\n2Letter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\nOffice\n\nof the\n\nAttorney\n\nGeneral (\n\nOctober\n\n13, 2020),\n\nat [ 2].\n\n\fMs. Deborah\n\nF. Weiss\n\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 5\n\ncopies of any audio or video recordings of the August 19, 2020, and September 23, 2020,\n\nmeetings, and a detailed written response to the allegation that the Board improperly adopted a\nset of changes to its policies without first publicly reciting the nature of that matter and other\ninformation that would inform the public of the business being conducted.\nOn October 29, 2020, legal counsel for the Board unsuccessfully attempted to email those materials to this office, but neither party received notice that the materials were not\ntransmitted because the file size exceeded this office' s e- mail receipt capabilities. On November\n\n12, 2020, the Board' s attorney re -sent this office the requested materials by e- mail, this time\nusing a file -sharing service for the large audio files of the Board's open sessions from the two\ndates in question. 1 -le also provided copies of the Board packets that were posted on the District's\nwebsite in advance of the Board' s August 19, 2020, and September 23, 2020, meetings.\n\nOn November 13, 2020, this office forwarded a copy of the Board' s written\nanswer to Ms. Weiss. On November 24, 2020, she submitted a reply.\nANALYSIS\n\nSection 1 of OMA ( 5 ILCS 120/ 1 ( West 2018)) declares that \"[ i] t is the public\n\npolicy of this State that public bodies exist to aid in the conduct of the people' s business and that\nthe people have a right to be informed as to the conduct of their business.\"\n\nAs cited above,\n\nsection 2( e) of OMA effectuates this intent by providing that \"[ f]inal action shall be preceded by\na public recital of the nature of the matter being considered and other information that will\n\ninform the public of the business being conducted.\"\nIn Board ofEducation of Springfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, 77 N. E. 3d 625, 633 ( 2017), the Illinois Supreme Court decided that final\n\naction must be preceded by a public recital during the same meeting at which action is taken.\nThe Court explained that \"[ t] he language of section 2( e) does not mention an explanation, the\n\nsignificance of the action being considered, or the attendees' understanding. Rather, the plain\nmeaning of the phrase ' public recital of the nature of the matter being considered' is that the\npublic body must state the essence of the matter under consideration, its character, or its\n\nidentity.\" Springfield School District, 2017 IL 120343, ¶ 46, 77 N.E. 3d at 633- 34. Providing\nexamples that are instructive for the present matter, the Court advised that \" while the ' nature of'\n\nthe matter' may be recited in nonspecific terms ( the approval of a loan, a contract, a purchase, a\n\npolicy, or a resolution), ' other information' is necessary to inform the public of the specific item\n\nof business ( the purpose of the loan, the subject of the contract, the type of property being\npurchased,\n\nthe title of the policy,\n\nor\n\nthe purpose\n\nof the\n\nresolution).\" (\n\nSpringfield School District, 2017 IL 120343, ¶ 50, 77 N. E. 3d at 634.\n\nEmphasis added.)\n\n\fMs. Deborah F. Weiss\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 6\n\nThe Court rejected\nthat a public\n\nrecital\n\nas \"\n\ntime consuming\n\nand\n\nimpractical[ ] * * *\n\nany suggestion\n\nkey terms' is required[,]\" stating that \"[ a] public body may choose to\n\nof '\n\nprovide such information in its recital at the open meeting but is not compelled to do so by\n2( e).\"\n\nSpringfield School District, 2017 IL 120343, ¶ 61, 77 N. E.3d at 635- 36. Rather,\nthe Court held, \" the recital must announce the nature of the matter under consideration, with\nsection\n\nsufficient detail to identify the particular transaction or issue, but need not provide an\nexplanation of its terms or its significance.\"\n\nSpringfield School District, 2017 IL 120343, ¶ 64,\n\n77 N. E. 3d at 636.\n\nIn its answer to this office, the Board asserted that it \" fully complied with Section\n2( e) of the OMA at both its August 19, 2020 and September 23, 2020 meetings with respect to\nthe announcement and approval of amendments to certain Board policies. i13 The Board stated\n\nthat during its August 19, 2020, meeting, Mr. Bremmer \" read aloud all Board policies which\nwere\n\nsubject\n\nto updates[,]\"\n\nand Dr. Schiffman noted that the changes were \" all at the\n\nrecommendation of 'PRESS,' the Policy Reference Education Subscription Service of the Illinois\nAssociation of School Boards.\" 14 The Board explained that \" PRESS is a service which serves as\n\na reference point for school board policies throughout Illinois and many school boards adopt the\nPRESS policies verbatim[,] i15 noting that the descriptions in the \" Revisions to Policies,\n\nAdministrative Procedures, and Exhibits\" document were created and provided to the District by\nPRESS. At the ensuing meeting on September 23, 2020, the Board further explained, Mr.\nBremmer \"\n\nthe policies to be amended and acted upon[,]\"\nand the Board unanimously voted\nat that meeting to approve the changes \" in the form proposed on August 19, 2020. i16\nread\n\nCiting Springfield School District, the Board argued that \"[ t] he revised or\n\namended policies do not need to be read verbatim\nat a public meeting in order to comply with\n17\nSection\n\n2( e)\n\nprior\n\nto taking final action.\"\n\nAdditionally, the Board argued, \"[ t] he same Court\n\nconfirmed that a public body need not recite key terms of the documents at issue, provide an\n\nOffice\n\n13Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nof the Illinois Attomey General, Public Access Bureau ( October 29, 2020), at 1.\n\n14Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\n\nOffice of the Illinois Attorney General, Public Access Bureau ( October 29, 2020), at 2.\n15Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones,\n\nDeputy Bureau Chief,\n\nOffice of the Illinois Attorney General, Public Access Bureau ( October 29, 2020), at n. 1.\n16Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\n\nOffice ofthe Illinois Attorney General, Public Access Bureau ( October 29, 2020), at 2.\nletter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\n\nOffice of the Illinois Attorney General, Public Access Bureau ( October 29, 2020), at 2.\n\n\fMs. Deborah F. Weiss\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 7\n\nexplanation of the terms, or the significance of the transaction.\" 1 s Rather, the Board contended,\n\nposting detailed descriptions of proposed amendments to Board policies online in tandem with\npublic recitation of the proposed policies to be amended, and public recitation of where to find\nthe descriptions\n\nof the proposed amendments on the District' s website, complies with\" the public\n\nrecital requirement of section 2( e) of OMA. 19\n\nIn reply, Ms. Weiss maintained that the Board provided an insufficient public\n\nrecital because it did not \" identify the general nature of the matter under consideration, i. e. the\nchanges to each policy that was being voted on[.] i20 She argued:\nIn the context\n\nof changes\n\nto school board policies,\n\nunless\n\nthe\n\nspecific changes are specifically shared or at least accessible how\n\ncan the particular issue or transaction be identified? The reality is\nthat they can' t. It is virtually impossible to determine what the\nchanges to specific policies are/ were unless they are specifically\n\nidentified in the record in some way, which they weren' t.I211\nThis office' s review of the relevant portions of the audio recordings of the Board' s\nAugust\n\n19, 2020, and September 23, 2020, meetings confirmed\n\nthat the Board' s open session\n\nstatements align with the descriptions the Board provided to this office. During the former\nmeeting, Mr. Bremmer announced that the Board was holding a \" first reading\" of amended and\nnew Board policies, and he read the policy number and title for each policy. Dr. Schiffman then\nstated that \" all of those are recommendations by PRESS, so that' s in your Board packet and the\ncommunity packet as well, but that is all recommendations from PRESS and the legislation, so\n\nthey keep our policy handbook updated, so that's why we look to approve those.\" 22 Mr.\nBremmer affirmed that the Board was taking no action on the matter that night.\n\n18Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nOffice of the Illinois Attorney General, Public Access Bureau ( October 29, 2020), at 2.\n\n19Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nOffice ofthe Illinois Attorney General, Public Access Bureau (October 29, 2020), at 3.\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Joshua M. Jones, Deputy Bureau Chief,\nOffice ofthe Illinois Attorney General, Public Access Bureau (November 24, 2020), at 3.\n\n2I Letter from Deborah F. Weiss, Whitted Takiff LLC, to Joshua M. Jones, Deputy Bureau Chief,\nOffice of the Illinois Attomey General, Public Access Bureau ( November 24, 2020), at 2.\n\n22Pearl City Community Unit School District No. 200 Board of Education, Open Meeting, August\n19, 2020, Audio File,\n\nat\n\n43: 09- 43: 24 ( on file with Public Access Bureau, Office\n\nof the\n\nAttorney General).\n\n\fMs. Deborah\n\nF. Weiss\n\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 8\n\nIt was at the subsequent meeting on September 23, 2020, that the Board was\nrequired to make a proper public recital prior to voting on the changes, and it did so. Mr.\nBremmer stated that \" the next item of business is the approval of amended and new Board\n\npolicies. i23 In the same manner as at the prior meeting, Mr. Bremmer then read off the numbers\nand titles of the policies being amended or added. He asked if there was \" a motion to approve\nthose policies,\" a motion was made and seconded, and the Board held a unanimous roll call vote\n\nto approve the policy changes. 24\nUnder the Illinois Supreme Court's analysis in Springfield School District, the\n\nnature of the matter under consideration was Board policy changes, and the details sufficient to\n\nidentify those changes were the numbers and titles of the policies. To satisfy section 2( e), the\nBoard was not required to disclose the text of the changes before it voted, nor was it required to\n\ndescribe the specific changes or their key terms. As the Court noted, a public body may elect to\n\nprovide such information to the public, but is not compelled to do so by section 2( e). 25 Further,\nno provision of OMA restricted the Board from approving the changes to the 22 policies\ncollectively in one vote. Although the question of whether the Board' s public recital was\n\nadequate concerns only what the Board stated during its September 23, 2020, meeting before\nvoting on the changes, the Board also helped inform the public as to the conduct of its business\n\nwith a \" first reading\" of the changes at its prior meeting on August 19, 2020, and by posting\ndescriptions of the changes in the Board packet on the District' s website.\n\nUnder these\n\ncircumstances, this office concludes that the Board satisfied the requirements of section 2( e) by\nproviding an adequate public recital before voting to approve the policy changes at its September\n23, 2020, meeting. Nevertheless, this office emphasizes that public bodies have discretion to\n\nprovide additional details in public recitals to better inform the public of the business being\nconducted, and encourages public bodies to do so when practical. Briefly summarizing the\nnature of policy changes, rather than simply identifying policies and indicating that changes have\nbeen proposed, could significantly enhance the public' s understanding of actions under\nconsideration.\n\n23Pearl City Community Unit School District No. 200 Board of Education, Open Meeting,\nSeptember 23, 2020, Audio File, at 26: 56- 27: 04 ( on file with Public Access Bureau, Office of the Attorney\nGeneral).\n\n24Pearl City Community Unit School District No. 200 Board of Education, Open Meeting,\nSeptember 23, 2020, Audio File, at 28: 58- 29: 28 ( on file with Public Access Bureau, Office of the Attorney\nGeneral).\n\n25Springfeld School District, 2017 IL 120343, ¶\n\n61,\n\n77 N. E. 3d at 635- 36.\n\n\fs.Deborah F. Weiss\nMr. Tyler J. Bohman\n\nJanuary 8, 2021\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nquestions, please contact me at jjones@atg. state. il. us.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n65194 0 2e pub recital proper sd\n\ncc:\n\nVia electronic\n\nmail\n\nThe Honorable\n\nChad\n\nBremmer\n\nPresident, Board of Education\n\nPearl City Community Unit School District No. 200\n100 South Summit\n\nPearl City, Illinois 61062\ncbremmer@pcwolves.\n\nnet\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"School board policy revision approval process","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65194/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJanuary 8, 2021\n\nVia electronic mail\nMs. Deborah\n\nF. Weiss\n\nWhitted Takiff LLC\n[street address redacted for site publication -- see original PDF]\ndweiss@whittedtakifflaw. com\nVia electronic mail\n\nMr. Tyler J. Bohman\n\nAttorney\nRobbins Schwartz\n\n55 West Monroe Street, Suite 800\nChicago, III inois 60603- 5144\ntbohman@robbins- schwartz. com\n\nRE:\n\nOMA Request for Review — 2020 PAC 65194\n\nDear Ms. Weiss and Mr. Bohman:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2018)).\n\nFor the reasons discussed below, the Public Access\n\nBureau concludes that the Board of Education (Board) of Pearl City Community Unit School\nDistrict No. 200 (District) did not violate the public recital requirement of OMA in connection\nwith its August 19, 2020, and September 23, 2020, meetings\nOn October 13, 2020, Ms. Deborah F. Weiss submitted a Request for Review to\n\nthe Public Access Bureau via e- mail alleging that the Board violated OMA in connection with its\n\nAugust 19, 2020, and September 23, 2020, meetings by \" vot[ ing] to approve the revision of 22\ndifferent School Board Policies without sharing the changes being proposed with the public. i'\n\nMs. Weiss alleged that during the Board's August 19, 2020, meeting, the Board held a \"' first\nLetter from Deborah F. Weiss, Whitted TakiffLLC, to Sarah Pratt, Public Access Counselor,\n\nOffice ofthe Attorney General (October 13, 2020), at [ 1].\n\nreading'\n\nof the agenda item \"' Amended/ New Board Policies,'\" which simply consisted of the\n\nBoard President, Mr. Chad Bremmer, reading the agenda item verbatim. The agenda item\nprovided:\n\n7. First Reading of Amended/ New Board Policies - 2: 220 -School\nBoard Meeting Procedure; 2: 220- E9- Requirements for no\nphysical presence of quorum and participation by audio or video\nduring disaster declaration; 4: 180 -Pandemic Preparedness; 7: 40 Non -public students, including parochial and home - schooled\nstudents;\n\n7: 190- Student Behavior;\n\n7: 190- E2- Student\n\nHandbook\n\nChecklist; 7: 340- Student records; 7: 345- Use of Educational\n\nTechnology, student data and privacy; 2: 25042- Immediately\nAvailable district public reports and records; 2: 260- Uniform\nGrievance Procedure; 2: 265- Title IX Sexual Harassment\nGrievance procedure;\n\n2: 265- E- Title IX Sexual Harassment\n\nGlossary of Terms; 5: 10- Equal Employment Opportunity and\nMinority recruitment; 5: 20 Workplace Harassment Prohibited;\n5.: 100- Staff Development Program; 5: 200 Terms and Conditions\nof Employment and Dismissal; 5: 220- Substitute Teachers; 5: 330 Sick Days, Vacation, Holidays, and Leaves; 7: 10 Equal\n\nEducational Opportunities; 7: 20 Harassment of Students\n\nProhibited; 7: 180- Prevention of and Response to Bullying,\nIntimidation, and Harassment; 7: 185 - Teen Dating Violence\nProhibited — Informational\n\nOnlyl2l\n\nMs. Weiss alleged that \"[ t] he specific changes to current policies and/ or the new policies being\ndescribed or shared in the reading[,]\"\n\nclaiming that the closest the Board came\nto identifying the proposed changes was when Superintendent Michael Schiffman stated that the\nproposed\n\nwere\n\nnot\n\nrecommended changes were included in the meeting's Board packet.' She argued:\nEven presuming that a person knows that the board packets, or a\nversion thereof, is posted online and how to access them, and that\nthis somehow constitutes public discussion,\n\nthe specific changes\n\nbeing proposed to the board policies are not identified. The only\ndocument included in the board packet that references the school\n\nPearl City Community Unit School District No. 200 Board of Education, Meeting, Agenda Item\n7, First Reading of Amended/ New Board Policies (August 19, 2020).\n3 Letter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nboard policies serves primarily to describe why those identified\npolicies are being changed as opposed to describing the actual\nchanges themselves. 141\nMs. Weiss enclosed a copy of this document, titled \" Revisions to Policies,\nAdministrative Procedures, and Exhibits. i5 The left- hand column has a row for each policy\nnumber and name, while the right- hand column gives corresponding descriptions. The\n\ndescriptions vary in length and detail, with some indicating minor or technical changes. For\ninstance, the description for both \" 7: 40, Nonpublic School Students, Including Parochial and\nHome -Schooled Students\" and \" 7: 220 -AP, Electronic Recordings on School Buses\" is: \" The\nprocedure is unchanged.\n\nThe footnotes are updated in response to a five- year review. i6 Other\n\ndescriptions note that the policy is new. For example, the description for \" 7: 345, Use of\n\nEducational Technologies; Student Data Privacy and. Security,\" is \" NEW. The policy is created\nto facilitate implementation of 105 ILCS 85/ amended by P. A. 101- 516, eff. 7- 1- 21, which\nrequires districts to take a number of actions to protect online student data and to share general\n\ninformation about how student data is used.\" 7 An example of one of the lengthier descriptions,\nfor \" 7: 340, Student\n\nRecords,\"\n\nis:\n\nThe policy, Legal References, footnotes, and Cross\nReferences are updated. The policy is updated with continuous\nimprovement changes based on feedback from the III. Council of\nSchool Attorneys. The Legal References are updated to include\n\nreference to 105 ILCS 85/. New policy 7: 345 Technologies;\nStudent Data Privacy and Security, has been added to the Cross\nReferences. The footnotes are updated in response to:\n\n1. 105 ILCS 85/, amended by P. A. 101- 516, eff. 7- 1- 21.\n\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice ofthe Attorney General (October 13, 2020), at [ 1].\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 44), available at https:// www. pcwolves. net/ UserFiles/ Servers/ Server_ 110375/ File/ 8- 19-\n\n20% 20 Brd%20 Meeting% 20lnfo%20for%20web%202. pdf.\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 45], available\n\nat https:// www. pcwolves. net/ UserFiles/ Servers/ Server\n\n110375/ File/ 8- 19-\n\n20% 20 Brd%20 Meet in g% 20 In fo% 20for% 20web% 202. pdf.\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 46], available at https:// www. pcwolves. net/ UserFiles/ Servers/ Server 110375/ File/ 8- 1920% 20 Brd% 20 Meeting% 20lnfo% 20for% 20web% 202. pdf.\n\n2. U. S. Dept. of Education (DOE) guidance on the Family\nEducational Rights and Privacy Act (FERPA) and virtual learning.\n3. Updated joint guidance issued by the DOE and U. S.\nDept. of Health and Human Services on the application of FERPA\n\nand the Health Insurance Portability and Accountability Act of\n1996 to student health records. l81\n\nMs. Weiss further alleged that at the next Board meeting on September 23, 2020,\nthe relevant agenda item was read verbatim and then a single vote was taken to approve the\n\nrevised policies as a group. i9 The agenda item was unchanged from the previous meeting,\nexcept that instead of \"First Reading\" at the start it said \" Approval,\" and instead of\nInformational Only\" at the end it said \" Potential Action Item.\"°\nShe claimed that \"[ a] gain,\nthere was no public description or discussion of the changes being proposed nor was there a vote\n\nindividually.\"' Ms. Weiss asserted: \" This failure to share\nin an open meeting the actual changes to board policies being proposed and then to adopt those\nunspecified changes to 22 different policies in a single vote is concerning and seemingly\nviolative of Illinois' Open Meeting[ s]\n\nas\n\nto proposed\n\nchanges\n\nto each policy\n\nThe Public Access Bureau construed Ms. Weiss' Request for Review as alleging a\npotential violation of section 2(e) of OMA (5 ILCS 12012(e) (West 2018), as amended by Public\nActs 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019), which provides:\n\nNo final action may be taken at a closed meeting. Final action shall be preceded by a public\nrecital of the nature of the matter being considered and other information that will inform the\npublic of the business being conducted.\"\n\nOn October 20, 2020, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to Board President Bremmer. This office also sent Mr. Bremmer a letter seeking\nPearl City Community Unit School District No. 200 Board of Education, August 19, 2020, Board\nPacket, at [ 45], available at https:// www.pcwolves. net/ UserFiles/ Servers/ Server 110375/ File/8- 19-\n\n20% 20 Brd% 20 Meeti ng%20lnfo%20for%20web% 202. pdf.\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice of the Attorney General (October 13, 2020), at [ 1].\n\n1° Pearl City Community Unit School District No. 200 Board of Education, Meeting, Agenda Item\nG. 5., Approval of Amended/ New Board Policies (September 23, 2020).\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\n\nOffice of the Attorney General (October 13, 2020), at [ 1].\n2 Letter from Deborah F. Weiss, Whitted Takiff LLC, to Sarah Pratt, Public Access Counselor,\nOffice\n\nof the\n\nAttorney\n\ncopies of any audio or video recordings of the August 19, 2020, and September 23, 2020,\n\nmeetings, and a detailed written response to the allegation that the Board improperly adopted a\nset of changes to its policies without first publicly reciting the nature of that matter and other\ninformation that would inform the public of the business being conducted.\nOn October 29, 2020, legal counsel for the Board unsuccessfully attempted to email those materials to this office, but neither party received notice that the materials were not\ntransmitted because the file size exceeded this office's e- mail receipt capabilities. On November\n\n12, 2020, the Board's attorney re -sent this office the requested materials by e- mail, this time\nusing a file -sharing service for the large audio files of the Board's open sessions from the two\ndates in question. 1 -le also provided copies of the Board packets that were posted on the District's\nwebsite in advance of the Board's August 19, 2020, and September 23, 2020, meetings.\n\nOn November 13, 2020, this office forwarded a copy of the Board's written\nanswer to Ms. Weiss. On November 24, 2020, she submitted a reply.\nANALYSIS\n\nSection 1 of OMA (5 ILCS 120/ 1 (West 2018)) declares that \"[ i] t is the public\n\npolicy of this State that public bodies exist to aid in the conduct of the people's business and that\nthe people have a right to be informed as to the conduct of their business.\"\n\nAs cited above,\n\nsection 2(e) of OMA effectuates this intent by providing that \"[ f]inal action shall be preceded by\na public recital of the nature of the matter being considered and other information that will\n\ninform the public of the business being conducted.\"\nIn Board ofEducation of Springfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, 77 N. E. 3d 625, 633 (2017), the Illinois Supreme Court decided that final\n\naction must be preceded by a public recital during the same meeting at which action is taken.\nThe Court explained that \"[ t] he language of section 2(e) does not mention an explanation, the\n\nsignificance of the action being considered, or the attendees' understanding. Rather, the plain\nmeaning of the phrase ' public recital of the nature of the matter being considered' is that the\npublic body must state the essence of the matter under consideration, its character, or its\n\nidentity.\" Springfield School District, 2017 IL 120343, ¶ 46, 77 N.E. 3d at 633- 34. Providing\nexamples that are instructive for the present matter, the Court advised that \" while the ' nature of'\n\nthe matter' may be recited in nonspecific terms (the approval of a loan, a contract, a purchase, a\n\npolicy, or a resolution), ' other information' is necessary to inform the public of the specific item\n\nof business (the purpose of the loan, the subject of the contract, the type of property being\npurchased,\n\nthe title of the policy,\n\nor\n\nThe Court rejected\nthat a public\n\nrecital\n\nas \"\n\ntime consuming\n\nand\n\nimpractical[ ] * * *\n\nany suggestion\n\nkey terms' is required[,]\" stating that \"[ a] public body may choose to\n\nof '\n\nprovide such information in its recital at the open meeting but is not compelled to do so by\n2(e).\"\n\nSpringfield School District, 2017 IL 120343, ¶ 61, 77 N. E.3d at 635- 36. Rather,\nthe Court held, \" the recital must announce the nature of the matter under consideration, with\nsection\n\nsufficient detail to identify the particular transaction or issue, but need not provide an\nexplanation of its terms or its significance.\"\n\nSpringfield School District, 2017 IL 120343, ¶ 64,\n\n77 N. E. 3d at 636.\n\nIn its answer to this office, the Board asserted that it \" fully complied with Section\n2(e) of the OMA at both its August 19, 2020 and September 23, 2020 meetings with respect to\nthe announcement and approval of amendments to certain Board policies. i13 The Board stated\n\nthat during its August 19, 2020, meeting, Mr. Bremmer \" read aloud all Board policies which\nwere\n\nsubject\n\nto updates[,]\"\n\nand Dr. Schiffman noted that the changes were \" all at the\n\nrecommendation of 'PRESS,' the Policy Reference Education Subscription Service of the Illinois\nAssociation of School Boards.\" 14 The Board explained that \" PRESS is a service which serves as\n\na reference point for school board policies throughout Illinois and many school boards adopt the\nPRESS policies verbatim[,] i15 noting that the descriptions in the \" Revisions to Policies,\n\nAdministrative Procedures, and Exhibits\" document were created and provided to the District by\nPRESS. At the ensuing meeting on September 23, 2020, the Board further explained, Mr.\nBremmer \"\n\nthe policies to be amended and acted upon[,]\"\nand the Board unanimously voted\nat that meeting to approve the changes \" in the form proposed on August 19, 2020. i16\nread\n\nCiting Springfield School District, the Board argued that \"[ t] he revised or\n\namended policies do not need to be read verbatim\nat a public meeting in order to comply with\n17\nSection\n\n2(e)\n\nprior\n\nto taking final action.\"\n\nAdditionally, the Board argued, \"[ t] he same Court\n\nconfirmed that a public body need not recite key terms of the documents at issue, provide an\n\nOffice\n\n13 Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nof the Illinois Attomey General, Public Access Bureau (October 29, 2020), at 1.\n\n14 Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\n\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2020), at 2.\n15 Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones,\n\nDeputy Bureau Chief,\n\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2020), at n. 1.\n\nexplanation of the terms, or the significance of the transaction.\" 1 s Rather, the Board contended,\n\nposting detailed descriptions of proposed amendments to Board policies online in tandem with\npublic recitation of the proposed policies to be amended, and public recitation of where to find\nthe descriptions\n\nof the proposed amendments on the District's website, complies with\" the public\n\nrecital requirement of section 2(e) of OMA. 19\n\nIn reply, Ms. Weiss maintained that the Board provided an insufficient public\n\nrecital because it did not \" identify the general nature of the matter under consideration, i. e. the\nchanges to each policy that was being voted on[.] i20 She argued:\nIn the context\n\nof changes\n\nto school board policies,\n\nunless\n\nthe\n\nspecific changes are specifically shared or at least accessible how\n\ncan the particular issue or transaction be identified? The reality is\nthat they can' t. It is virtually impossible to determine what the\nchanges to specific policies are/ were unless they are specifically\n\nidentified in the record in some way, which they weren' t.I211\nThis office's review of the relevant portions of the audio recordings of the Board's\nAugust\n\n19, 2020, and September 23, 2020, meetings confirmed\n\nthat the Board's open session\n\nstatements align with the descriptions the Board provided to this office. During the former\nmeeting, Mr. Bremmer announced that the Board was holding a \" first reading\" of amended and\nnew Board policies, and he read the policy number and title for each policy. Dr. Schiffman then\nstated that \" all of those are recommendations by PRESS, so that's in your Board packet and the\ncommunity packet as well, but that is all recommendations from PRESS and the legislation, so\n\nthey keep our policy handbook updated, so that's why we look to approve those.\" 22 Mr.\nBremmer affirmed that the Board was taking no action on the matter that night.\n\n18 Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2020), at 2.\n\n19 Letter from Tyler J. Bohman, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief,\nOffice ofthe Illinois Attorney General, Public Access Bureau (October 29, 2020), at 3.\nLetter from Deborah F. Weiss, Whitted Takiff LLC, to Joshua M. Jones, Deputy Bureau Chief,\nOffice ofthe Illinois Attorney General, Public Access Bureau (November 24, 2020), at 3.\n\n2I Letter from Deborah F. Weiss, Whitted Takiff LLC, to Joshua M. Jones, Deputy Bureau Chief,\nOffice of the Illinois Attomey General, Public Access Bureau (November 24, 2020), at 2.\n\n22 Pearl City Community Unit School District No. 200 Board of Education, Open Meeting, August\n19, 2020, Audio File,\n\nat\n\nIt was at the subsequent meeting on September 23, 2020, that the Board was\nrequired to make a proper public recital prior to voting on the changes, and it did so. Mr.\nBremmer stated that \" the next item of business is the approval of amended and new Board\n\npolicies. i23 In the same manner as at the prior meeting, Mr. Bremmer then read off the numbers\nand titles of the policies being amended or added. He asked if there was \" a motion to approve\nthose policies,\" a motion was made and seconded, and the Board held a unanimous roll call vote\n\nto approve the policy changes. 24\nUnder the Illinois Supreme Court's analysis in Springfield School District, the\n\nnature of the matter under consideration was Board policy changes, and the details sufficient to\n\nidentify those changes were the numbers and titles of the policies. To satisfy section 2(e), the\nBoard was not required to disclose the text of the changes before it voted, nor was it required to\n\ndescribe the specific changes or their key terms. As the Court noted, a public body may elect to\n\nprovide such information to the public, but is not compelled to do so by section 2(e). 25 Further,\nno provision of OMA restricted the Board from approving the changes to the 22 policies\ncollectively in one vote. Although the question of whether the Board's public recital was\n\nadequate concerns only what the Board stated during its September 23, 2020, meeting before\nvoting on the changes, the Board also helped inform the public as to the conduct of its business\n\nwith a \" first reading\" of the changes at its prior meeting on August 19, 2020, and by posting\ndescriptions of the changes in the Board packet on the District's website.\n\nUnder these\n\ncircumstances, this office concludes that the Board satisfied the requirements of section 2(e) by\nproviding an adequate public recital before voting to approve the policy changes at its September\n23, 2020, meeting. Nevertheless, this office emphasizes that public bodies have discretion to\n\nprovide additional details in public recitals to better inform the public of the business being\nconducted, and encourages public bodies to do so when practical. Briefly summarizing the\nnature of policy changes, rather than simply identifying policies and indicating that changes have\nbeen proposed, could significantly enhance the public's understanding of actions under\nconsideration.\n\n23 Pearl City Community Unit School District No. 200 Board of Education, Open Meeting,\nSeptember 23, 2020, Audio File, at 26: 56- 27: 04 (on file with Public Access Bureau, Office of the Attorney\nGeneral).\n\n24 Pearl City Community Unit School District No. 200 Board of Education, Open Meeting,\nSeptember 23, 2020, Audio File, at 28: 58- 29: 28 (on file with Public Access Bureau, Office of the Attorney\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nquestions, please contact me at jjones@atg. state. il. us.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n65194 0 2e pub recital proper sd\n\ncc:\n\nVia electronic\n\nmail\n\nThe Honorable\n\nChad\n\nBremmer\n\nPresident, Board of Education\n\nPearl City Community Unit School District No. 200\n100 South Summit\n\nPearl City, Illinois 61062\ncbremmer@pcwolves.\n\nnet"}
{"id":1341,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-04-29","case_number":null,"request_numbers":["65272"],"title":"City of Oakbrook Terrace discussed mayor’s salary in closed session under 2(c)(11)","filename":"65272, issued April 29, 2022.pdf","rel_path":null,"word_count":4386,"summary":"A requester alleged that the City of Oakbrook Terrace improperly discussed the mayor's salary in a closed session held under the litigation exception. The PAC determined that the discussion did not fall under the cited litigation exception and requested the City release the relevant portion of the closed session recording.","plain_summary":"A citizen complained that the Oakbrook Terrace City Council improperly discussed the mayor's salary in closed session. The Attorney General's office reviewed the recording and determined that the discussion centered on the mayor and liquor commissioner positions, not on specific employees, and that the mayor is an elected officer, not an employee. The office noted that the council had already corrected a typographical error in the meeting minutes and did not order any further action.","holding":"The Attorney General's office did not issue a binding finding of a violation; it noted that the city had corrected the meeting minutes and stated that no further remedial action was necessary.","legal_question":"Whether the City of Oakbrook Terrace violated the Open Meetings Act by discussing the mayor's salary in a closed session purportedly held for litigation purposes under 5 ILCS 120/2(c)(11).","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)","5 ILCS 120/2(c)(3)"],"public_body":"City of Oakbrook Terrace","requesting_party":"Anonymous","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council discussed the salary of the mayor and liquor commissioner during a closed session meeting.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/65272, issued April 29, 2022.pdf","sha256":"69beaafbfa51bd5bda2a30ad3b161d0ba7b45fd6223647522eee88552bf95b7d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","city council","meeting minutes","transparency"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 29, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Paul Esposito\nMayor\n\nCity of Oakbrook Terrace\n17W275 Butterfield Road\n\nOakbrook Terrace, Illinois 60181\npesposito@oakbrookterrace.\n\nnet\n\nRE: OMA Request for Review – 2020 PAC 65272\nDear\n\nand Mr. Esposito:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2020)).\nBACKGROUND\n\nOn October 17, 2020,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the City Council ( City Council) of the City of Oakbrook Terrace\n\nCity) violated OMA at its August 25, 2020, meeting by improperly discussing in closed session\nthe salary of the mayor and liquor commissioner.\n\nHe directed this office to the City Council' s\n\nAugust 25, 2020, meeting minutes, which stated that the City Council entered closed session\npursuant to section 2(c)( 11) of OMA. 1 The 2(c)( 11) exception permits a public body to close a\n\nmeeting to discuss \"[ l]itigation, when an action against, affecting or on behalf of the particular\npublic body has been filed and is pending before a court or administrative tribunal, or when the\n\npublic body finds that an action is probable or imminent[.]\"\n\ncontended: \" First, I allege\n\n15 ILCS 120/2(c)(11) (West 2020).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 2\n\nthat the City Council discussed matters in closed session that were not consistent with their\nmotion and vote to enter into closed session. Second, I allege that the City Council entered\n\nclosed session to discuss the salary of the mayor and liquor commissioner, which is not a\npermissible topic of closed session discussion.\" 2 He argued that there was no pending litigation\n\nand that the City Council's discussion of the mayor's salary was improper because the mayor is\nan elected officer rather than an employee \" and the Liquor Commissioner position is also held by\n\nthe Mayor.\"3\nOn October 27, 2020, this office forwarded a copy of the Request for Review to\nthe City Council and asked it to provide this office with copies of the City Council' s August 25,\n\n2020, meeting agenda, minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to\n\nOMA allegations. Having\n\nreceived no response, this office sent additional correspondence to the City Council on\nDecember 1, 2020, again asking it to respond. On December 16, 2020, this office received the\n\nrequested materials. On December 21, 2020, this office forwarded a copy of the City Council's\nresponse to\n\nhe did not submit a reply.\n\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\n\nClosed Session Procedure\nSection 2a of OMA ( 5 ILCS 120/ 2a ( West 2020)) sets forth the procedure for a\n\npublic body to enter closed session. Among those requirements, section 2a provides that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\n\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\n2Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\nOctober 17, 2020).\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 3\n\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. ( Emphasis added.)\nThis office' s review of the August 25, 2020, meeting minutes confirmed that the\n\nCity Council documented the vote of each member on the question of entering closed session.\nThe minutes, however, are unclear as to the subject matter of the closed session, citing section\n\n2(c)(11) of OMA as the authorization for recessing to executive session but stating that the\nexecutive session concerned the appointment, employment, compensation, discipline,\n\nperformance, or dismissal of employees, which is language found in section 2(c)(1) of OMA.4 In\nits response to this office, the City Council asserted that it made a motion in open session to\n\nclose the meeting pursuant to section 2(c)(1) of OMA and that the section 2(c)(11) exception\ndocumented in the meeting minutes \" is a typographical error and an incorrect recordation of the\n\nmotion that was made and passed in order to recess to executive session[.]\" 5 The City Council\nnoted that even though the minutes' description of the motion to recess to executive session was\n\ninaccurate, the minutes correctly indicated that the executive session involved the discussion of\nemployees. Additionally, the City Council stated that it would correct the typographical error in\n\nthe minutes at its next meeting.\nThe available information indicates that the City Council publicly identified\nsection 2(c)(1) by both its statutory subsection and statutory language before entering closed\nsession, and this office has not received information to the contrary. Accordingly, this office is\n\nunable to conclude that the City Council violated section 2a of OMA by failing to publicly\ndisclose the specific exception that served as the basis for closing the meeting in violation of\n\nsection 2a of OMA. Although the City misidentified that exception in the meeting minutes, the\nCity Council has corrected the August 25, 2020, meeting minutes so no further remedial action is\n\nnecessary.6\nClosed Session Exceptions\n\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/ 2(a), ( c)\n\n45 ILCS 120/2(c)(1) (West 2020).\n5Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General ( December 16, 2020), at 2.\n6City of Oakbrook Terrace City Council and Committee of the Whole, Meeting, August 25, 2020,\nMinutes 6, as corrected and reapproved on January 12, 2021, available at\nhttps://www.oakbrookterrace.net/sites/default/files/fileattachments/ city_council/meeting/15991/august_25_2020_mi\nnutes.pdf.\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 4\n\nWest 2020). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 5 ILCS 120/ 2(b) ( West 2020).\nSection 2(c)( 1) of OMA permits a public body to discuss in closed session \"[ t]he\n\nappointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" of the public body. ( Emphasis added.) The \" purpose of the [ 2(c)( 1)] exception is to\n\nprotect the identity and reputation of a person[.]\" 1974 Ill. Att'y Gen. Op. No. S-726, issued\nMarch 22, 1974, at 128. The Attorney General has previously explained in binding opinions that\n\nt]he use of the phrase 'specific employees of the public body' significantly limits the scope of\nthis exception. Based on this language, the exception is intended to permit public bodies to\n\ncandidly discuss the relative merits of individual employees, or the conduct of individual\nemployees.\"\n\nIll. Att'y Gen. Pub. Acc. Op. No. 15- 005, issued August 4, 2015, at 6 (quoting Ill.\n\nAtt'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3). See also Ill. Att'y Gen. Pub.\nAcc. Op. No. 18- 012, issued October 2, 2018, at 4 (closed session budgetary discussions that did\n\nnot center on the merits or conduct of specific employees or prospective employees were not\nauthorized by section 2(c)( 1)).\nBased on this office' s review of the verbatim recording of the closed session of\n\nthe August 25, 2020, meeting, the City Council did not discuss the relative merits of any\nparticular individuals for most of the closed session. For instance, the City Council did not\nconsider the performance of any particular individuals in discussing compensation.\n\nRather, the\n\nCity Council's discussion centered generally on the mayor and liquor commissioner positions.\nGeneral discussions of compensation and employment for a position do not fall within the scope\n\nof section 2(c)(1) because they do not pertain to specific individuals. See Ill. Att'y Gen. Pub.\nAcc. Op. No. 16- 013, issued December 23, 2016, at 4 (\" The amended language referencing\n\nspecific employees' signifies that the General Assembly did not intend to permit public bodies to\nhold general discussions concerning categories of employees in closed session pursuant to\n\nsection 2(c)(1).\"). Indeed, any changes in compensation related to the salary of an elected officer\nwould not have impacted the currently elected officer. 7\nHowever, a limited portion of the discussion concerned the compensation or\n\nperformance of specific individuals. The Attorney General has issued a binding opinion\nconcluding that the 2(c)( 1) exception does not permit closed session discussions pertaining to\n\noccupants of a public office. Ill. Att'y Gen. Pub. Acc. Op. No. 17-013, issued November 21,\n2017, at 4 (\" Because elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies, section 2(c)(1) would not have provided a basis for the Board to\n\n7See Ill. Const. art. VII, §9 (\"An increase or decrease in the salary of an elected officer of any unit\nof local government shall not take effect during the term for which that officer is elected.\").\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 5\n\nclose a meeting to discuss the conduct of a Board member.\"). In contrast to the section 2(c)(1)\nexception' s focus on specific employees of the public body, section 2(c)( 3) of OMA ( 5 ILCS\n\n120/2(c)(3) (West 2020)) permits a public body to discuss in closed session:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\n\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\n\noffice, when the public body is given power to remove the\noccupant under law or ordinance.\nSection 2(d) of OMA ( 5 ILCS 120/ 2(d) ( West 2020)) defines the term \" employee\"\n\nas \" a person employed by a public body whose relationship with the public body constitutes an\nemployer- employee relationship under the usual common law rules, and who is not an\n\nindependent contractor.\" Under that provision, \"public office\" is separately defined as:\nA] position created by or under the Constitution or laws of this\nState, the occupant of which is charged with the exercise of some\n\nportion of the sovereign power of this State. The term \"public\noffice\" shall include members of the public body, but it shall not\ninclude organizational positions filled by members thereof,\n\nwhether established by law or by a public body itself, that exist to\nassist the body in the conduct of its business.\nThe Attorney General has previously analyzed the two terms and concluded that\n\nt]he two definitions are mutually exclusive; the occupant of a position cannot simultaneously\nbe both a public officer and an employee.\"\n\nIll. Att'y Gen. Pub. Acc. Op. No. 18- 015, issued\n\nOctober 30, 2018, at 6. Further, the Attorney General has stated:\nThe existence of an employer-employee relationship does not\ndepend upon a single factor; instead all relevant factors must be\n\nconsidered. [ Citation.] The factors to be considered include: \"the\nright to control the manner in which the work is done, the method\n\nof payment, the right to discharge, the skill required in the work to\nbe done, and who provides tools, materials, or equipment.\"\n\nCitation.] Of these factors, the Illinois Supreme Court stated that\nthe \" right to control the manner in which the work is done is the\n\nmost important in determining the relationship.\" [ Citation.] Ill.\nAtt'y Gen. Pub. Acc. Op. No. 18- 015, at 7.\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 6\n\nIn that binding opinion, the Attorney General examined the Illinois Appellate Court's analysis in\nHeller v. County Board of Jackson County, 71 Ill. App. 3d 31, 37- 39 ( 5th Dist. 1979), which\n\ninvolved a county supervisor of assessment. Specifically, the court analyzed whether the county\nboard exceeded its powers by interfering with the operation, control, and management of the\n\nsupervisor, who was an appointed county officer. Heller, 71 Ill. App. 3d at 37-39. The court\nrejected the county board' s argument that the board had the power to oversee the day- to- day\n\noperations of any county officer and highlighted that the term of office and duties of the county\nofficer are set by statute, thus indicating the General Assembly' s intent for the county officer to\n\noperate free from interference by the county board. Heller, 71 Ill. App. 3d at 37. Further, the\ncounty officer could only be removed for cause after judicial proceedings.\n\nHeller, 71 Ill. App.\n\n3d at 37. Applying the Heller reasoning to the county auditor and coroner of McLean County,\nthe Attorney General determined: \"[ I]t is clear that neither the Committee nor the Board has the\n\nauthority to direct and control the manner in which the work of the county auditor or the county\ncoroner is done.\" Ill. Att'y Gen. Pub. Acc. Op. No. 18- 015, at 8. Thus, the Attorney General\n\nconcluded that the county auditor and coroner are not \"employees\" of that county, and a county\ncommittee' s closed discussion concerning them did not fall within the scope of section 2(c)( 1).\n\nIll. Att'y Gen. Pub. Acc. Op. No. 18-015, at 9-10.\nIn this matter, the City Council argued that the mayor and liquor commissioner\nare specific employees of the City and, therefore, the section 2(c)(1) exception authorized its\nclosed session discussions regarding the employment and compensation of those individuals.\n\nWith respect to the mayor's duties, the City Council contended that \"[ e] vidence of the City\nCouncil' s control over the manner in which the mayor performs his job is found in various\n\nsections of the City Code.\" 8 The City Council directed this office to certain provisions of the\nCity' s Code of Ordinances ( City Code) describing the mayor' s duties and authorities. The City\n\nCouncil argued that the mayor's authorities include the ability to appoint City department heads\nand officers, but only with the advice and consent of the City Council. Additionally, the mayor\n\nserves as the local liquor commissioner pursuant to the City Code.\nThe City Council disputed the Attorney General's binding opinions concluding\nthat \" employees\" and \" public officials\" are mutually exclusive, asserting that \" there is nothing in\n\neither definition which even remotely supports the conclusion that that [sic] the two definitions,\nemployee and public official, are mutually exclusive or that the occupant of a position cannot\n\nsimultaneously be both a public officer and an employee.\" 9 The City Council argued that \"the\n8Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 3.\n9Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 16.\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 7\n\nInternal Revenue Code expressly provides otherwise\" and that \"[ h]ad the legislature intended\nemployees and public officials to be mutually exclusive, it would have so provided in the\n\ndefinition of 'employee.'\" 10 Directing this office to certain provisions of the Internal Revenue\nCode, the City Council argued, in relevant part:\nInternal Revenue Code Section 3401( c) defines the term\n\nemployee\" for income tax withholding purposes. That definition\nstates:\nthe term \" employee\" includes an officer, employee, or\n\nelected official of the United States, a State, or any political\nsubdivision thereof, or the District of Columbia, or any\n\nagency or instrumentality of any one or more of the\nforegoing.\nSubject to two exceptions that are not applicable to the\n\nOakbrook Terrace Mayor or Liquor Commissioner and consistent\nwith Internal Revenue Code Section 3401( c), Internal Revenue\n\nCode Sections 1402(c)(1) and 1402(c)(2)(e) exclude from the\ndefinition of \"trade or business\" \" the performance of the functions\nof a public office.\" Because income tax is to be paid on self-\n\nemployment income or net earnings from self-employment from a\ntrade or business, this exclusion of \" the performance of the\n\nfunctions of a public office\" from the definition of \"trade or\nbusiness\" underscores that persons who serve in public office do so\n\nas employees and not as independent contractors.[11]\nAccording to the City Council, the Internal Revenue Service had until recently applied \"a\ntwenty- common- law- factor test to determine whether a private individual is an employee or an\n\nindependent contractor.\" 12 Performing an analysis of those 20 factors and describing in further\ndetail the work performed by the mayor, the City Council argued that the mayor and\n\n10Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General ( December 16, 2020), at 16.\n11Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 3.\n12Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 4.\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 8\n\ncommissioner are \" employees\" of the City. The City Council further explained that \"the Internal\nRevenue Service recently streamlined and consolidated the twenty factors into three main\n\ngroups: behavioral control, financial control, and the type of relationship of the parties.\" 13 It\nargued that under those groups, the mayor and liquor commissioner still met the definition of\n\nemployees\" under the Internal Revenue Code.\nIn Moy v. County of Cook, 159 Ill. 2d 519, 21 (1994), the Illinois Supreme Court\nconsidered whether a county was vicariously liable under the doctrine of respondent superior for\n\nalleged negligence by the county sheriff in connection with the death of a county jail inmate.\nBecause the applicability of that doctrine depended on whether the county and the sheriff had an\n\nemployment relationship, the court analyzed whether the sheriff qualified as a county employee\nor officer. Moy, 159 Ill. 2d at 524. Noting that the right to control was a critical factor in the\n\ndetermination, the court emphasized that the \"county is given no authority to control the office of\nthe sheriff[ ]\" because the county board could not add or alter duties, powers, and functions\n\nspecifically imposed by law. Moy, 159 Ill. 2d at 525. The court cited the following factors in\nholding that the sheriff was an officer rather than an employee: ( 1) the lack of an express or\n\nimplied employment contract; (2) a constitutional oath of office; (3) per the State constitution,\nduties provided by State law and county ordinance as well as common law and historical\n\nprecedent; and (4) election to a four-year term and duties that are continuous regardless of who\nholds the office. Moy, 159 Ill. 2d at 529-30.\nThe office of the mayor is created under section 3.1-15-5 of the Illinois\nMunicipal Code ( 65 ILCS 5/3.1-15- 5 (West 2020)), 14 and the occupant of that office is charged\n\nwith some portion of the sovereign power of the State.15 Therefore, the Mayor of the City of\nOakbrook Terrace ( Mayor) is a \" public officer.\" As the City Council noted, section 32.011 of\n\nthe City Code sets forth the duties of the Mayor, which include \"such duties as may be required\nby state statute or local ordinance.\" 16 Among those duties, the City Code provides that \"[ t]he\n13Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 10.\n\n1465 ILCS 5/3.1-15-5 (West 2020) (\" In all cities incorporated under this Code there shall be\nelected a mayor, aldermen, a city clerk, and a city treasurer (except in the case of a city of 10,000 or fewer\ninhabitants that, by ordinance, allows for the appointment of a city treasurer by the mayor, subject to the advice and\nconsent of the city council).\").\n15The sovereign power of the State includes the power to appoint public officers. People ex rel.\nRudman v. Rini, 64 Ill. 2d 321, 326 (1976). The mayor has the power to appoint public officers. See 65 ILCS 5/3.130-5 (West 2020) (mayors are authorized to appoint a collector, marshal, and \" other officers necessary to carry into\neffect the powers conferred upon municipalities\").\n16OAKBROOK TERRACE, ILL. CODE § 32.011 (2020).\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 9\n\nMayor shall have general supervision and control of the police department and shall see that the\nvarious police officers are prompt and efficient in the discharge of their duties.\" 17 The City Code\n\nfurther provides:\nThe Mayor shall have supervision over all executive officers and\nemployees of the city, the power and the authority to appoint with\n\nthe advice and consent of the City Council heads of departments of\nthe city consistent with the employment policies and agreements of\n\nthe city and to inspect all books and records pertaining to city\naffairs and kept by any officer or employee of the city, at any\n\nreasonable time.[18]\nAdditionally, the Mayor may remove any officers appointed by the Mayor pursuant to the code,\nbut must report the reasons for removal to the City Council. 19 As the City Council noted, the\n\nCity Code provides that the Mayor is also to serve as the Local Liquor Commissioner and sets\nforth the commissioner' s duties. 20\nBased on this office' s review of the City Council' s response and applying the\n\nreasoning in Moy and Heller, the position of mayor bears the characteristics of an officer rather\nthan an employee. As discussed above, the office of the mayor is created by statute.21 The\nmayor takes a constitutional oath of office, 22 and his or her elected term of office is four years,\n\nexcept in municipalities that have adopted a two-year term.23 There is no indication that the\nmayor' s duties arise from an employment contract, express or implied. The Illinois Municipal\n\nCode sets forth the general duties and authorities of a mayor, which include ensuring that \"the\nlaws and ordinances are faithfully executed\" and providing annual updates on the current affairs\n\n17OAKBROOK TERRACE, ILL., CODE § 32.011 (2020).\n18OAKBROOK TERRACE, ILL., CODE § 32.011 (2020).\n19OAKBROOK TERRACE, ILL. CODE § 32.013 (2020).\n20OAKBROOK TERRACE, ILL. CODE § 111.002 (2020).\n2165 ILCS 5/3.1-15-5 (West 2020).\n2265 ILCS 5/3.1-10-25 (West 2020).\n\n2365 ILCS 5/3.1-15-10 (West 2020).\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 10\n\nof the municipality.24 The City Council cannot alter those duties, as they are prescribed by law.\nMoreover, the duties are continuous, regardless of who holds the office.\nThe City Code mirrors the language of the Illinois Municipal Code and sets forth\n\nadditional mayoral duties and authorities, which again carries with the position rather than the\nparticular person who holds it. As noted above, the City Code empowers the Mayor to supervise\n\nall executive officers and employees of the City, including the authority to generally supervise\nand control the City' s police department. Additionally, the Mayor is empowered to appoint all\n\nheads of the City's departments. While the City Council provides some oversight by providing\nadvice and consent on the Mayor' s appointments for department heads, it does not have the\n\nauthority to hire individuals for those positions. Further, as the City Council acknowledged, it\ndoes not have the authority to terminate the Mayor. 25 Although the Internal Revenue Code\n\nprovides that an elected official may be considered an \" employee\" for income tax withholding\npurposes, the City Council has not sufficiently illustrated that the City Council has the right to\n\ncontrol the manner in which the Mayor performs his or her work. Other than requiring the\nMayor to report periodically to the City Council on his activities and providing equipment and\n\nother support for the Mayor to conduct his work, the City Council has not shown that it directs\nsubstantively any of the day- to- day operations of the Mayor' s office. Considering all of the\n\nrelevant factors, this office concludes that the Mayor and Local Liquor Commissioner are not\nemployees\" within the scope of section 2(c)(1).\nAccordingly, the Public Access Bureau concludes that the City Council's\ndiscussion falls outside the scope of section 2(c)( 1) of OMA, except for a limited portion towards\n\nthe end of the session which this office finds falls within the scope of section 2(c)(3) of OMA.\nTo remedy this violation, this office requests that the City Council make available for public\n\ninspection a copy of the verbatim recording of the closed session portion of its August 25, 2020,\nmeeting, specifically the portion up to the 11: 17 mark.\n\n2465 ILCS 5/3.1-35-5 (West 2020).\n25Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 9.\n\n\fThe Honorable Paul Esposito\n\nApril 29, 2022\nPage 11\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n65272 o 2a proper improper 2c1 improper mun\ncc:\n\nVia electronic mail\n\nMr. Thomas J. Halleran\nAttorney for City of Oakbrook Terrace\n\nStorino, Ramello & Durkin\n9501 West Devon Avenue, Suite 800\n\nRosemont, Illinois 60018\nthomas@srd- law. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a mayor's salary","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65272/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 29, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Paul Esposito\nMayor\n\nCity of Oakbrook Terrace\n17W275 Butterfield Road\n\nOakbrook Terrace, Illinois 60181\npesposito@oakbrookterrace.\n\nnet\n\nRE: OMA Request for Review – 2020 PAC 65272\nDear\n\nand Mr. Esposito:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2020)).\nBACKGROUND\n\nOn October 17, 2020,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the City Council (City Council) of the City of Oakbrook Terrace\n\nCity) violated OMA at its August 25, 2020, meeting by improperly discussing in closed session\nthe salary of the mayor and liquor commissioner.\n\nHe directed this office to the City Council's\n\nAugust 25, 2020, meeting minutes, which stated that the City Council entered closed session\npursuant to section 2(c)(11) of OMA. 1 The 2(c)(11) exception permits a public body to close a\n\nmeeting to discuss \"[ l]itigation, when an action against, affecting or on behalf of the particular\npublic body has been filed and is pending before a court or administrative tribunal, or when the\n\npublic body finds that an action is probable or imminent[.]\"\n\ncontended: \" First, I allege\n\n15 ILCS 120/2(c)(11) (West 2020).\n\nthat the City Council discussed matters in closed session that were not consistent with their\nmotion and vote to enter into closed session. Second, I allege that the City Council entered\n\nclosed session to discuss the salary of the mayor and liquor commissioner, which is not a\npermissible topic of closed session discussion.\" 2 He argued that there was no pending litigation\n\nand that the City Council's discussion of the mayor's salary was improper because the mayor is\nan elected officer rather than an employee \" and the Liquor Commissioner position is also held by\n\nthe Mayor.\"3\nOn October 27, 2020, this office forwarded a copy of the Request for Review to\nthe City Council and asked it to provide this office with copies of the City Council's August 25,\n\n2020, meeting agenda, minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to\n\nOMA allegations. Having\n\nreceived no response, this office sent additional correspondence to the City Council on\nDecember 1, 2020, again asking it to respond. On December 16, 2020, this office received the\n\nrequested materials. On December 21, 2020, this office forwarded a copy of the City Council's\nresponse to\n\nhe did not submit a reply.\n\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\n\nClosed Session Procedure\nSection 2a of OMA (5 ILCS 120/ 2a (West 2020)) sets forth the procedure for a\n\npublic body to enter closed session. Among those requirements, section 2a provides that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\n\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nThis office's review of the August 25, 2020, meeting minutes confirmed that the\n\nCity Council documented the vote of each member on the question of entering closed session.\nThe minutes, however, are unclear as to the subject matter of the closed session, citing section\n\n2(c)(11) of OMA as the authorization for recessing to executive session but stating that the\nexecutive session concerned the appointment, employment, compensation, discipline,\n\nperformance, or dismissal of employees, which is language found in section 2(c)(1) of OMA.4 In\nits response to this office, the City Council asserted that it made a motion in open session to\n\nclose the meeting pursuant to section 2(c)(1) of OMA and that the section 2(c)(11) exception\ndocumented in the meeting minutes \" is a typographical error and an incorrect recordation of the\n\nmotion that was made and passed in order to recess to executive session[.]\" 5 The City Council\nnoted that even though the minutes' description of the motion to recess to executive session was\n\ninaccurate, the minutes correctly indicated that the executive session involved the discussion of\nemployees. Additionally, the City Council stated that it would correct the typographical error in\n\nthe minutes at its next meeting.\nThe available information indicates that the City Council publicly identified\nsection 2(c)(1) by both its statutory subsection and statutory language before entering closed\nsession, and this office has not received information to the contrary. Accordingly, this office is\n\nunable to conclude that the City Council violated section 2a of OMA by failing to publicly\ndisclose the specific exception that served as the basis for closing the meeting in violation of\n\nsection 2a of OMA. Although the City misidentified that exception in the meeting minutes, the\nCity Council has corrected the August 25, 2020, meeting minutes so no further remedial action is\n\nnecessary.6\nClosed Session Exceptions\n\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/ 2(a), (c)\n\n45 ILCS 120/2(c)(1) (West 2020).\n5 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 2.\n6 City of Oakbrook Terrace City Council and Committee of the Whole, Meeting, August 25, 2020,\nMinutes 6, as corrected and reapproved on January 12, 2021, available at\nhttps://www.oakbrookterrace.net/sites/default/files/fileattachments/ city_council/meeting/15991/august_25_2020_mi\n\nWest 2020). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(1) of OMA permits a public body to discuss in closed session \"[ t]he\n\nappointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" of the public body. (Emphasis added.) The \" purpose of the [ 2(c)(1)] exception is to\n\nprotect the identity and reputation of a person[.]\" 1974 Ill. Att'y Gen. Op. No. S-726, issued\nMarch 22, 1974, at 128. The Attorney General has previously explained in binding opinions that\n\nt]he use of the phrase 'specific employees of the public body' significantly limits the scope of\nthis exception. Based on this language, the exception is intended to permit public bodies to\n\ncandidly discuss the relative merits of individual employees, or the conduct of individual\nemployees.\"\n\nIll. Att'y Gen. Pub. Acc. Op. No. 15- 005, issued August 4, 2015, at 6 (quoting Ill.\n\nAtt'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3). See also Ill. Att'y Gen. Pub.\nAcc. Op. No. 18- 012, issued October 2, 2018, at 4 (closed session budgetary discussions that did\n\nnot center on the merits or conduct of specific employees or prospective employees were not\nauthorized by section 2(c)(1)).\nBased on this office's review of the verbatim recording of the closed session of\n\nthe August 25, 2020, meeting, the City Council did not discuss the relative merits of any\nparticular individuals for most of the closed session. For instance, the City Council did not\nconsider the performance of any particular individuals in discussing compensation.\n\nRather, the\n\nCity Council's discussion centered generally on the mayor and liquor commissioner positions.\nGeneral discussions of compensation and employment for a position do not fall within the scope\n\nof section 2(c)(1) because they do not pertain to specific individuals. See Ill. Att'y Gen. Pub.\nAcc. Op. No. 16- 013, issued December 23, 2016, at 4 (\" The amended language referencing\n\nspecific employees' signifies that the General Assembly did not intend to permit public bodies to\nhold general discussions concerning categories of employees in closed session pursuant to\n\nsection 2(c)(1).\"). Indeed, any changes in compensation related to the salary of an elected officer\nwould not have impacted the currently elected officer. 7\nHowever, a limited portion of the discussion concerned the compensation or\n\nperformance of specific individuals. The Attorney General has issued a binding opinion\nconcluding that the 2(c)(1) exception does not permit closed session discussions pertaining to\n\noccupants of a public office. Ill. Att'y Gen. Pub. Acc. Op. No. 17-013, issued November 21,\n2017, at 4 (\" Because elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies, section 2(c)(1) would not have provided a basis for the Board to\n\n7 See Ill. Const. art. VII, §9 (\"An increase or decrease in the salary of an elected officer of any unit\nof local government shall not take effect during the term for which that officer is elected.\").\n\nclose a meeting to discuss the conduct of a Board member.\"). In contrast to the section 2(c)(1)\nexception's focus on specific employees of the public body, section 2(c)(3) of OMA (5 ILCS\n\n120/2(c)(3) (West 2020)) permits a public body to discuss in closed session:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\n\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\n\noffice, when the public body is given power to remove the\noccupant under law or ordinance.\nSection 2(d) of OMA (5 ILCS 120/ 2(d) (West 2020)) defines the term \" employee\"\n\nas \" a person employed by a public body whose relationship with the public body constitutes an\nemployer- employee relationship under the usual common law rules, and who is not an\n\nindependent contractor.\" Under that provision, \"public office\" is separately defined as:\nA] position created by or under the Constitution or laws of this\nState, the occupant of which is charged with the exercise of some\n\nportion of the sovereign power of this State. The term \"public\noffice\" shall include members of the public body, but it shall not\ninclude organizational positions filled by members thereof,\n\nwhether established by law or by a public body itself, that exist to\nassist the body in the conduct of its business.\nThe Attorney General has previously analyzed the two terms and concluded that\n\nt]he two definitions are mutually exclusive; the occupant of a position cannot simultaneously\nbe both a public officer and an employee.\"\n\nIll. Att'y Gen. Pub. Acc. Op. No. 18- 015, issued\n\nOctober 30, 2018, at 6. Further, the Attorney General has stated:\nThe existence of an employer-employee relationship does not\ndepend upon a single factor; instead all relevant factors must be\n\nconsidered. [ Citation.] The factors to be considered include: \"the\nright to control the manner in which the work is done, the method\n\nof payment, the right to discharge, the skill required in the work to\n\nIn that binding opinion, the Attorney General examined the Illinois Appellate Court's analysis in\nHeller v. County Board of Jackson County, 71 Ill. App. 3d 31, 37- 39 (5th Dist. 1979), which\n\ninvolved a county supervisor of assessment. Specifically, the court analyzed whether the county\nboard exceeded its powers by interfering with the operation, control, and management of the\n\nsupervisor, who was an appointed county officer. Heller, 71 Ill. App. 3d at 37-39. The court\nrejected the county board's argument that the board had the power to oversee the day- to- day\n\noperations of any county officer and highlighted that the term of office and duties of the county\nofficer are set by statute, thus indicating the General Assembly's intent for the county officer to\n\noperate free from interference by the county board. Heller, 71 Ill. App. 3d at 37. Further, the\ncounty officer could only be removed for cause after judicial proceedings.\n\nHeller, 71 Ill. App.\n\n3d at 37. Applying the Heller reasoning to the county auditor and coroner of McLean County,\nthe Attorney General determined: \"[ I]t is clear that neither the Committee nor the Board has the\n\nauthority to direct and control the manner in which the work of the county auditor or the county\ncoroner is done.\" Ill. Att'y Gen. Pub. Acc. Op. No. 18- 015, at 8. Thus, the Attorney General\n\nconcluded that the county auditor and coroner are not \"employees\" of that county, and a county\ncommittee's closed discussion concerning them did not fall within the scope of section 2(c)(1).\n\nIll. Att'y Gen. Pub. Acc. Op. No. 18-015, at 9-10.\nIn this matter, the City Council argued that the mayor and liquor commissioner\nare specific employees of the City and, therefore, the section 2(c)(1) exception authorized its\nclosed session discussions regarding the employment and compensation of those individuals.\n\nWith respect to the mayor's duties, the City Council contended that \"[ e] vidence of the City\nCouncil's control over the manner in which the mayor performs his job is found in various\n\nsections of the City Code.\" 8 The City Council directed this office to certain provisions of the\nCity's Code of Ordinances (City Code) describing the mayor's duties and authorities. The City\n\nCouncil argued that the mayor's authorities include the ability to appoint City department heads\nand officers, but only with the advice and consent of the City Council. Additionally, the mayor\n\nserves as the local liquor commissioner pursuant to the City Code.\nThe City Council disputed the Attorney General's binding opinions concluding\nthat \" employees\" and \" public officials\" are mutually exclusive, asserting that \" there is nothing in\n\neither definition which even remotely supports the conclusion that that [sic] the two definitions,\nemployee and public official, are mutually exclusive or that the occupant of a position cannot\n\nsimultaneously be both a public officer and an employee.\" 9 The City Council argued that \"the\n8 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 3.\n9 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 16.\n\nInternal Revenue Code expressly provides otherwise\" and that \"[ h]ad the legislature intended\nemployees and public officials to be mutually exclusive, it would have so provided in the\n\ndefinition of 'employee.'\" 10 Directing this office to certain provisions of the Internal Revenue\nCode, the City Council argued, in relevant part:\nInternal Revenue Code Section 3401(c) defines the term\n\nemployee\" for income tax withholding purposes. That definition\nstates:\nthe term \" employee\" includes an officer, employee, or\n\nelected official of the United States, a State, or any political\nsubdivision thereof, or the District of Columbia, or any\n\nagency or instrumentality of any one or more of the\nforegoing.\nSubject to two exceptions that are not applicable to the\n\nOakbrook Terrace Mayor or Liquor Commissioner and consistent\nwith Internal Revenue Code Section 3401(c), Internal Revenue\n\nCode Sections 1402(c)(1) and 1402(c)(2)(e) exclude from the\ndefinition of \"trade or business\" \" the performance of the functions\nof a public office.\" Because income tax is to be paid on self-\n\nemployment income or net earnings from self-employment from a\ntrade or business, this exclusion of \" the performance of the\n\nfunctions of a public office\" from the definition of \"trade or\nbusiness\" underscores that persons who serve in public office do so\n\nas employees and not as independent contractors.[11]\nAccording to the City Council, the Internal Revenue Service had until recently applied \"a\ntwenty- common- law- factor test to determine whether a private individual is an employee or an\n\nindependent contractor.\" 12 Performing an analysis of those 20 factors and describing in further\ndetail the work performed by the mayor, the City Council argued that the mayor and\n\n10 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 16.\n11 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 3.\n12 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 4.\n\ncommissioner are \" employees\" of the City. The City Council further explained that \"the Internal\nRevenue Service recently streamlined and consolidated the twenty factors into three main\n\ngroups: behavioral control, financial control, and the type of relationship of the parties.\" 13 It\nargued that under those groups, the mayor and liquor commissioner still met the definition of\n\nemployees\" under the Internal Revenue Code.\nIn Moy v. County of Cook, 159 Ill. 2d 519, 21 (1994), the Illinois Supreme Court\nconsidered whether a county was vicariously liable under the doctrine of respondent superior for\n\nalleged negligence by the county sheriff in connection with the death of a county jail inmate.\nBecause the applicability of that doctrine depended on whether the county and the sheriff had an\n\nemployment relationship, the court analyzed whether the sheriff qualified as a county employee\nor officer. Moy, 159 Ill. 2d at 524. Noting that the right to control was a critical factor in the\n\ndetermination, the court emphasized that the \"county is given no authority to control the office of\nthe sheriff[ ]\" because the county board could not add or alter duties, powers, and functions\n\nspecifically imposed by law. Moy, 159 Ill. 2d at 525. The court cited the following factors in\nholding that the sheriff was an officer rather than an employee: (1) the lack of an express or\n\nimplied employment contract; (2) a constitutional oath of office; (3) per the State constitution,\nduties provided by State law and county ordinance as well as common law and historical\n\nprecedent; and (4) election to a four-year term and duties that are continuous regardless of who\nholds the office. Moy, 159 Ill. 2d at 529-30.\nThe office of the mayor is created under section 3.1-15-5 of the Illinois\nMunicipal Code (65 ILCS 5/3.1-15- 5 (West 2020)), 14 and the occupant of that office is charged\n\nwith some portion of the sovereign power of the State.15 Therefore, the Mayor of the City of\nOakbrook Terrace (Mayor) is a \" public officer.\" As the City Council noted, section 32.011 of\n\nthe City Code sets forth the duties of the Mayor, which include \"such duties as may be required\nby state statute or local ordinance.\" 16 Among those duties, the City Code provides that \"[ t]he\n13 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 10.\n\n1465 ILCS 5/3.1-15-5 (West 2020) (\" In all cities incorporated under this Code there shall be\nelected a mayor, aldermen, a city clerk, and a city treasurer (except in the case of a city of 10,000 or fewer\ninhabitants that, by ordinance, allows for the appointment of a city treasurer by the mayor, subject to the advice and\nconsent of the city council).\").\n15 The sovereign power of the State includes the power to appoint public officers. People ex rel.\nRudman v. Rini, 64 Ill. 2d 321, 326 (1976). The mayor has the power to appoint public officers. See 65 ILCS 5/3.130-5 (West 2020) (mayors are authorized to appoint a collector, marshal, and \" other officers necessary to carry into\n\nMayor shall have general supervision and control of the police department and shall see that the\nvarious police officers are prompt and efficient in the discharge of their duties.\" 17 The City Code\n\nfurther provides:\nThe Mayor shall have supervision over all executive officers and\nemployees of the city, the power and the authority to appoint with\n\nthe advice and consent of the City Council heads of departments of\nthe city consistent with the employment policies and agreements of\n\nthe city and to inspect all books and records pertaining to city\naffairs and kept by any officer or employee of the city, at any\n\nreasonable time.[18]\nAdditionally, the Mayor may remove any officers appointed by the Mayor pursuant to the code,\nbut must report the reasons for removal to the City Council. 19 As the City Council noted, the\n\nCity Code provides that the Mayor is also to serve as the Local Liquor Commissioner and sets\nforth the commissioner's duties. 20\nBased on this office's review of the City Council's response and applying the\n\nreasoning in Moy and Heller, the position of mayor bears the characteristics of an officer rather\nthan an employee. As discussed above, the office of the mayor is created by statute.21 The\nmayor takes a constitutional oath of office, 22 and his or her elected term of office is four years,\n\nexcept in municipalities that have adopted a two-year term.23 There is no indication that the\nmayor's duties arise from an employment contract, express or implied. The Illinois Municipal\n\nCode sets forth the general duties and authorities of a mayor, which include ensuring that \"the\nlaws and ordinances are faithfully executed\" and providing annual updates on the current affairs\n\n17OAKBROOK TERRACE, ILL., CODE § 32.011 (2020).\n18OAKBROOK TERRACE, ILL., CODE § 32.011 (2020).\n\nof the municipality.24 The City Council cannot alter those duties, as they are prescribed by law.\nMoreover, the duties are continuous, regardless of who holds the office.\nThe City Code mirrors the language of the Illinois Municipal Code and sets forth\n\nadditional mayoral duties and authorities, which again carries with the position rather than the\nparticular person who holds it. As noted above, the City Code empowers the Mayor to supervise\n\nall executive officers and employees of the City, including the authority to generally supervise\nand control the City's police department. Additionally, the Mayor is empowered to appoint all\n\nheads of the City's departments. While the City Council provides some oversight by providing\nadvice and consent on the Mayor's appointments for department heads, it does not have the\n\nauthority to hire individuals for those positions. Further, as the City Council acknowledged, it\ndoes not have the authority to terminate the Mayor. 25 Although the Internal Revenue Code\n\nprovides that an elected official may be considered an \" employee\" for income tax withholding\npurposes, the City Council has not sufficiently illustrated that the City Council has the right to\n\ncontrol the manner in which the Mayor performs his or her work. Other than requiring the\nMayor to report periodically to the City Council on his activities and providing equipment and\n\nother support for the Mayor to conduct his work, the City Council has not shown that it directs\nsubstantively any of the day- to- day operations of the Mayor's office. Considering all of the\n\nrelevant factors, this office concludes that the Mayor and Local Liquor Commissioner are not\nemployees\" within the scope of section 2(c)(1).\nAccordingly, the Public Access Bureau concludes that the City Council's\ndiscussion falls outside the scope of section 2(c)(1) of OMA, except for a limited portion towards\n\nthe end of the session which this office finds falls within the scope of section 2(c)(3) of OMA.\nTo remedy this violation, this office requests that the City Council make available for public\n\ninspection a copy of the verbatim recording of the closed session portion of its August 25, 2020,\nmeeting, specifically the portion up to the 11: 17 mark.\n\n2465 ILCS 5/3.1-35-5 (West 2020).\n25 Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of Illinois Attorney General (December 16, 2020), at 9.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n65272 o 2a proper improper 2c1 improper mun\ncc:\n\nVia electronic mail\n\nMr. Thomas J. Halleran\nAttorney for City of Oakbrook Terrace\n\nStorino, Ramello & Durkin\n9501 West Devon Avenue, Suite 800\n\nRosemont, Illinois 60018\nthomas@srd- law. com"}
{"id":1344,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-11-17","case_number":null,"request_numbers":["65418"],"title":"Lake Forest HS District 115 Board did not violate OMA emergency notice requirement","filename":"65418, issued November 17, 2021.pdf","rel_path":null,"word_count":4979,"summary":"The requester alleged that the Lake Forest Community High School District No. 115 Board of Education violated the Open Meetings Act regarding meeting notice requirements and the scope of closed session discussions during an October 2020 remote meeting. The PAC reviewed the allegations and determined that the matter could be resolved without a binding opinion.","plain_summary":"A union representative challenged a remote school-board meeting's notice, closed-session discussion, final action, and public-comment procedures. The PAC found the shortened notice was justified by a bona fide emergency, but the presiding officer failed to state the nature of that emergency and most of the closed-session discussion exceeded the cited OMA exceptions; the Board was asked to disclose the non-exempt portion of the recording. The PAC found no violation in the alleged closed-session final action or public-comment restriction.","holding":"The Board did not violate section 2.02(a) of the Open Meetings Act by providing less than 48 hours' notice for its October 22, 2020 emergency meeting.","legal_question":"Did the Board of Education violate the Open Meetings Act by failing to provide 48-hour notice for a meeting and by discussing matters in closed session that exceeded the scope of the cited statutory exceptions?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2","5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(2)"],"public_body":"Lake Forest Community High School District No. 115 Board of Education","requesting_party":"Mr. Mark Stein, Illinois Education Association","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"The complaint concerned the adequacy of meeting notice for an emergency remote meeting and the appropriateness of closed session discussions under OMA exceptions.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_8/65418, issued November 17, 2021.pdf","sha256":"0f7cc7667a91a1581016a33bb48680779642640d2db7813d256728942ce9927d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting notice","school board","emergency meeting"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 17, 2021\n\nVia electronic mail\n\nMr. Mark Stein\nUniServ Director\n\nIllinois Education Association\n1860 Winchester Road\n\n[street address redacted for site publication -- see original PDF]\nmark. stein@ieanea. org\nVia electronic mail\n\nThe Honorable Jenny Zinser\nPresident, Board of Education\n\nLake Forest Community High School District No. 115\n300 South Waukegan Road\n\nLake Forest, Illinois 60045\nboed115@lfschools. net\nRE: OMA Request for Review – 2020 PAC 65418\nDear Mr. Stein and Ms. Zinser:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2020)).\nBACKGROUND\n\nOn October 26, 2020, Mr. Mark Stein, on behalf of the Lake Forest Education\nAssociation, submitted a Request for Review to the Public Access Bureau alleging that the Lake\n\nForest Community High School District No. 115 (School District) Board of Education (Board)\nviolated the requirements of OMA in connection with its October 22, 2020, meeting, which was\n\nconducted remotely. Specifically, Mr. Stein alleged that: (1) the Board posted the meeting\nagenda less than 48 hours in advance of the meeting, and no bona fide emergency existed; (2) the\nBoard discussed matters in closed session that did not fall within the scope of section 2(c)( 2) of\n\nOMA (5 ILCS 120/2(c)(2) (West 2020)), the exception it cited as the basis for closing the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 2\n\nmeeting; (3) the Board took improper final action on an agenda item by making a decision in\nclosed session on \" how to move forward in light of the recommendations made by the\n\nSuperintendent and the Lake City DPH\" related to full remote learning; and (4) the Board\nimproperly restricted public comment by limiting public comment to 30- 45 minutes and\n\nproviding less than 48 hours to submit comments by e-mail.1\nOn November 2, 2020, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide this office with copies of the October 22, 2020, meeting\n\nagenda, open and closed session minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to Mr. Stein' s OMA allegations. On\n\nNovember 17, 2020, this office received the requested response. In its response, the Board\nasserted that its closed session discussion also fell within the scope of section 2(c)( 8) of OMA ( 5\n\nILCS 120/2(c)(8) (West 2020)). On November 19, 2020, this office forwarded a copy of the\nBoard' s response to Mr. Stein; he replied on November 30, 2020.\n\nDETERMINATION\nNotice of October 22, 2020, Meeting\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) ( West 2020)) provides:\nPublic notice of any special meeting except a meeting held in the\nevent of a bona fide emergency, or of any rescheduled regular\n\nmeeting, or of any reconvened meeting, shall be given at least 48\nhours before such meeting, which notice shall also include the\n\nagenda for the special, rescheduled, or reconvened meeting[.] * *\nNotice of an emergency meeting shall be given as soon as\n\npracticable, but in any event prior to the holding of such meeting,\nto any news medium which has filed an annual request for notice\n\nunder subsection (b) of this Section.\nOMA does not define the phrase \" bona fide emergency.\" However, the Public Access Bureau\nhas previously examined the plain meaning of a \" bona fide emergency\" and determined that\n\nunanticipated circumstances requiring immediate action that would justify providing less than\n48 hours' notice [ ]\" are necessary for a meeting to qualify as one held in the event of a bona fide\n\nemergency.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013, at 4.\n1OMA – Request for Review by Public Access Counselor form filed by Mark Stein, UnivServ\nDirector, Lake Forest Education Association, Lake Forest High School, Illinois Education Association (October 25,\n2020).\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 3\n\nAdditionally, section 7(e) of OMA ( 5 ILCS 120/ 7(e) ( West 2020)) sets forth the\n\nrequirements for emergency meetings held remotely because of a public health emergency, such\nas the COVID- 19 pandemic. Section 7(e)( 7)( A) of OMA provides:\n7) Except in the event of a bona fide emergency, 48 hours'\n\nnotice shall be given of a meeting to be held pursuant to this\nSection. Notice shall be given to all members of the public body,\n\nshall be posted on the website of the public body, and shall also be\nprovided to any news media who has requested notice of meetings\n\npursuant to subsection (a) of Section 2.02 of this Act. If the public\nbody declares a bona fide emergency:\nA) Notice shall be given pursuant to subsection ( a) of\n\nSection 2.02 of this Act, and the presiding officer shall state\nthe nature of the emergency at the beginning of the\n\nmeeting.\nIn its response to this office, the Board asserted that the October 22, 2020,\nmeeting \"was based on a bona fide public health emergency\" and thus that it did not violate\nOMA' s notice requirements. 2 According to the Board, freshman and sophomores in the high\n\nschool began in-person instruction through an e-hybrid learning schedule in mid-October.\nJuniors were scheduled to return to in-person learning on October 26, 2020, while seniors were\n\nscheduled for November 2, 2020. The Board stated that it previously passed a COVID-19\nReopening Plan Approval Resolution ( Resolution) authorizing the high school' s administration\n\nto determine if and when students would return to school. The Resolution required, however,\nthat the superintendent discuss with the Board any substantive changes to the School District' s\n\nre-opening plan, which the Board could affirm, modify, or disapprove; the Board could also take\nno action. The Board stated that on October 20, 2020, the Lake County Public Health\n\nDepartment issued a recommendation that schools move to virtual learning to slow the spread of\nCOVID. The Board acknowledged that it posted notice of its October 22, 2020, meeting on\n\nOctober 21, 2020, but asserted that the circumstances constituted a bona fide emergency, and\nthat the meeting' s purpose was to consider the administration' s recommendation for an \" adaptive\n\npause\" given the county health department recommendation and guidance from the Illinois State\nBoard of Education ( ISBE). 3 Citing the ISBE guidance, the Board explained that \" an adaptive\n2Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 4.\n3Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 3.\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 4\n\npause is a strategy that allows for movement into any level of remote learning to prevent disease\ntransmission\" and allows \" delayed reopening at the start of a specific school term or a pivot to\n\nremote learning once the school year is underway for school officials to have time to plan for\nnext steps with parents, teachers and staff.\" 4 The Board argued, in pertinent part:\nThere can be no doubt that it was appropriate for the Board, after\n\nlearning of the October 20, 2020, Lake County Public Health\nDepartment recommendation that schools close, to notice, on\n\nOctober 21, 2020, a meeting for October 22, 2020 to address\nwhether that recommendation and ISBE guidance together\n\nrequired Board review with respect to an adaptive pause. This was\nparticularly true when juniors were planning to return to school\n\nfour school days after the Health Department's recommendation.[5]\nEmphasis in original.)\nIn reply to that answer, Mr. Stein asserted that the Board failed to publicly\n\nidentify at the meeting the reason for calling an emergency meeting in violation of section\n7(e)( 7)( A) of OMA. He stated that the Board only recited at the beginning of the meeting that it\n\nwas being held remotely pursuant to the Governor's disaster proclamation. Mr. Stein also\ncontended that the Board had sufficient time to schedule a meeting with 48 hours advance notice\nto the public, asserting that the Board could have scheduled a meeting on the Friday rather than\n\non Thursday.\nThe Board's October 22, 2020, meeting agenda states that it is \"An Emergency\nMeeting of the Board of Education\" and that the meeting would be held remotely in light of\n\npublic health concerns.6 The agenda lists one subject for discussion and possible action:\nIII.\n\nReports/Discussions\nAdaptive Pause\n\nIV.\n\nAction Items\n\n4Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau ( November 17, 2020), at 3.\n5Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 4.\n6Board of Education, City of Lake Forest School District #115, Emergency Board of Education\nMeeting (October 22, 2020).\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 5\n\n1.\n\nApproval of Adaptive Pause[7]\n\nThis office has previously determined that a public body did not violate section\n2.02( a) by providing less than 48 hours' notice of a meeting held on March 12, 2020, concerning\n\nan emergency declaration for the COVID-19 pandemic because the emergency was bona fide.\nIll. Att'y Gen. PAC Req. Rev. Ltr. 62712, issued June 8, 2020, at 4. In that matter, this office\n\nobserved that \"public bodies across the State were taking swift measures to react to the COVID19 pandemic in light of is rapid spread and devastating impact. The uncertainty and severity\n\ninvolved in the pandemic presented unanticipated circumstances warranting immediate action.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 62712, at 4.\nIt is undisputed that the October 22, 2020, meeting agenda was posted on the\n\nSchool District's website a day before the meeting. Notably, the county public health department\nhad issued a recommendation related to the pandemic within a week of the School District' s plan\n\nto transition juniors to in-person learning and seniors shortly thereafter. Although Mr. Stein\ncontended that the Board could have scheduled its meeting a day later to provide 48 hours\n\nadvance notice to the public, the Board has demonstrated that the changing circumstances\nsurrounding the pandemic and unanticipated update in county public health guidance on October\n\n20, 2020, constituted a bona fide emergency necessitating prompt action. It is not unreasonable\nfor a school board to consider a county health department recommendation as soon as possible to\ngive staff and parents adequate notice of possible changes to a scheduled re- opening plan.\n\nFurther, the agenda and minutes reflect that the meeting was limited to addressing only the\nadaptive pause. Accordingly, this office concludes that the Board did not violate section 2.02( a)\n\nof OMA by holding an emergency meeting on October 22, 2020, with less than 48 hours'\nadvance notice.\nHowever, section 7(e)( 7)( A) of OMA provides that if a public body holds a\n\nmeeting remotely pursuant to a public health emergency and is unable to provide at least 48\nhours' advance notice, \" the presiding officer shall state the nature of the emergency at the\n\nbeginning of the meeting.\" Based on this office's review of the verbatim recording of the\nbeginning of the October 22, 2020, meeting, the presiding officer announced that the Board\n\nPresident had determined that it was not practical or prudent to hold an in-person meeting and\nlikewise not feasible for the public to be present due to public health concerns. The presiding\n\nofficer did not, however, state the nature of the particular bona fide emergency that precipitated\nthat meeting, as required by section 7(e)( 7)( A). The Board should be mindful of its obligation to\n\npublicly state the nature of the bona fide emergency at the beginning of the meeting if it holds an\nemergency meeting remotely under section 7(e) of OMA with less than 48 hours' advance notice.\n\n7Board of Education, City of Lake Forest School District #115, Emergency Board of Education\nMeeting (October 22, 2020).\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 6\n\nClosed Session Discussion\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Accordingly, OMA\nrequires that all meetings of a public body remain open to the public unless an exception in\n\nsection 2(c) of OMA is properly invoked. 5 ILCS 120/2(a), (c) (West 2020). The section 2(c)\nexceptions are to be \" strictly construed, extending only to subjects clearly within their scope.\" 5\n\nILCS 120/2(b) (West 2020).\nSection 2(c)(2) of OMA allows discussion in closed session of \"[c]ollective\nnegotiating matters between the public body and its employees or their representatives, or\n\ndeliberations concerning salary schedules for one or more classes of employees.\" By creating\nthe section 2(c)( 2) exception, the General Assembly recognized \" that the very nature of\n\nmeaningful collective bargaining requires that certain phases of the negotiating process must be\nconducted privately.\"\n\nIll. Att'y Gen. Op. No. 80- 024, issued August 12, 1980, at 10- 11.\n\nGenerally, wages, hours and other terms and conditions of employment are proper subjects for\ncollective bargaining, as well as any other subject with respect to which the parties may have\n\nchosen to bargain.\" 1980 Ill. Att'y Gen. Op. 80-024, at 9. The Public Access Bureau has\npreviously determined that the exception for collective negotiating matters authorizes public\nbodies to enter closed session to discuss \" subjects about which the parties are going to bargain.\"\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 52158, issued June 14, 2018, at 3.\nAdditionally, section 2(c)(8) of OMA permits the discussion of \"[s]ecurity\nprocedures, school building safety and security, and the use of personnel and equipment to\n\nrespond to an actual, a threatened, or a reasonably potential danger to the safety of employees,\nstudents, staff, the public, or public property.\"\n\nUnder its plain language, the 2(c)( 8) exception\n\npermits a public body to discuss security and safety issues and the use of staff and equipment to\nrespond to actual, threatened, or reasonably possible dangers to people and public property.\nThe Board asserted that the teacher' s union, the Lake Forest Education\n\nAssociation, had in early August \"made a demand that the District bargain the specific issue of\nwhether it is safe for schools to reopen. Those negotiations remain open, active, and ongoing\n\nand are directly implicated by the administration's report on October 22.\" 8 ( Emphasis in\noriginal.) According to the School District, the administration and union met on multiple\n\noccasions prior to the October 22, 2020, meeting without reaching a final agreement. The Board\nargued that all of the issues it discussed in closed session pertained \" to the implications of\n8Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 6.\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 7\n\nreopening on wages, hours, and working conditions relating to bargaining.\" 9 The Board further\nargued that disclosure of its discussions \" would obliterate the District' s ability to defend its\n\nposition in negotiations.\" 10 Additionally, the Board contended that it properly discussed matters\nin closed session pursuant to section 2(c)( 8): \" All discussions at issue during closed session\n\nwere focused on the potential danger to safety of employees, students, staff, and others raised by\nthe Lake County Health Department declaration on October 20 and how the District should use\n\npersonnel and equipment to address that danger.\" 11\nMr. Stein disputed the Board's claim that disclosure of the Board's closed session\ndiscussion would interfere with the administration' s ability to negotiate with the teacher' s union.\n\nHe contended that there were no active and ongoing negotiations, asserting that the union had not\nmet with the administration since the first week of October and that a hybrid model had already\n\nbeen implemented in the second week of October. Mr. Stein acknowledged that the union\ndisapproved of the instruction model,\" and he emphasized that the administration and the union\n\nnever bargained over the adaptive pause.12 Mr. Stein further disputed the Board's claim that the\nclosed session discussion fell within the scope of the 2(c)( 8) exception. He noted: \" Every\n\nschool in this country is dealing with the Pandemic. There is no privacy issue impinging on the\ndiscussion, or police investigation that would be compromised by having an open discussion.\" 13\n\nBased on this office's confidential review of the verbatim recording of the closed\nsession, the Board did not limit its discussion to topics that fell within the scope of the 2(c)( 2)\n\nexception. A limited portion of the Board's discussion at the beginning of the closed session\ndirectly concerned the wages, hours, and working conditions of teachers. This office' s review,\n\nhowever, determined that the remaining discussion concerned the adaptive pause and did not\npertain directly to collective bargaining issues. Although an adaptive pause presented\n\nimplications for teachers and staff, there is no indication that the administration and the union\nbargained over the adaptive pause, and most of the closed session discussion did not center on\n\nthe impacts of an adaptive pause on the particular working conditions of staff. The discussion\ndid not, for instance, focus on specific concerns or complaints from teachers that would be\n9Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 6.\n10Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau ( November 17, 2020), at 6.\n11Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 7.\n12Letter from Mark Stein, UniServ Director, LFEA/IEA, to [Teresa] Lim (undated).\n13Letter from Mark Stein, UniServ Director, LFEA/IEA, to [Teresa] Lim (undated).\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 8\n\nsubject to collective bargaining or weigh specific collective negotiating strategies. Instead, the\nBoard considered the current public health guidance, the appropriateness of an adaptive pause,\n\nand other issues related to the adaptive pause. Accordingly, this office is unable to conclude that\nthe 2(c)( 2) exception applied to the entire discussion.\nFurther, the Board has not demonstrated that its discussion fell within the scope of\n\nthe 2(c)(8) exception. Based on this office's review of the ISBE guidance, an adaptive pause is a\nschool' s shift to any level of remote learning and concerns a length of time during which a school\n\nwill administer remote learning. It relates to a mode of learning in response to public health\nconcerns rather than building security concerns. Additionally, it is not apparent from this office' s\n\nreview of the recording that the Board discussed how to use personnel and equipment to respond\nto potential dangers to the health and safety of students and staff. The Board generally noted that\n\nhealth and screening measures were in place at the high school but did not discuss any of those\nmeasures in detail. Although an adaptive pause relates to public health concerns and is intended\n\nto prevent disease transmission, the Board has not illustrated that the adaptive pause constitutes a\nsecurity procedure or that it discussed specifically the safety and security of the high school\n\nbuilding, such as security measures currently in place at the building. Accordingly, this office is\nunable to conclude that the discussion fell within the scope of the section 2(c)( 8) exception.\n\nThis office requests that the Board vote to make available for public inspection a\ncopy of the verbatim recording of the closed session portion of its October 22, 2020, meeting,\n\nbut the Board may redact the first 15 minutes and 50 seconds of the recording.\nFinal Action\n\nSection 2(e) of OMA (5 ILCS 120/2(e) ( West 2020)) provides: \" No final action\nmay be taken at a closed meeting. Final action shall be preceded by a public recital of the nature\n\nof the matter being considered and other information that will inform the public of the business\nbeing conducted.\" ( Emphasis added.)\nIn Gosnell, the plaintiff alleged that a school board improperly took final action in\n\nclosed session by making a request for mediation as an alternative to the negotiations it had been\nconducting with a union. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 ( 5th Dist. 1989). The\n\ncourt held:\nT]he request for mediation was part of the process of reaching a\nfinal action with the secretaries union. Mediation, similar to\n\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \" unilateral\"\n\ndecisions, such as what to offer or counteroffer, and to hold that\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 9\n\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\n\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\nAccordingly, a component of a public body's process of reaching final action generally does not,\nitself, constitute final action. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued\n\nJuly 14, 2015, at 3 (city council's vote to direct staff to explore funding for a sporting event bid\nwas not final action because it was merely a step in furtherance of reaching final action). Rather,\n\nfinal action' generally must bring a matter to a resolution.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n43111, issued August 4, 2016, at 3 (vote to reconsider whether to award a contract to the low\n\nqualified bidder was not final action because it did not resolve the matter in that \"final action on\nwhether to in fact award the contract was held over until the next meeting.\").\n\nA public body may\n\ngenerally reach a preliminary consensus in closed session but must vote on the matter in open\nsession for valid final action to occur. Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney\n\nGen. of Illinois, 2017 IL 120343, ¶74, 77 N.E.3d 625, 637 (2017).\nThe Board denied that it took any final action at the October 22, 2020, meeting.\nThe Board contended that \"[ d] uring the closed session, the Superintendent explained his\n\nrecommendation with respect to reopening and listened to the Board members' opinions about\npotential impacts on collective bargaining and safety[,]\" but that the Board took no actions in the\nclosed meeting. 14 The Board stated that the superintendent announced in open session his\n\nrecommendation \"that the school take an adaptive pause, meaning junior students would not\nreturn to school the following Monday. Notably, the Superintendent notified the public that, per\n\nthe Resolution, the Board was not required to act regarding his recommendation for it to be\neffective.\" 15 The Board emphasized that the Resolution only required the administration to\n\ninform the Board of changes to the re-opening plan and asserted that the superintendent made the\ndecision to take an adaptive pause.\nIn reply, Mr. Stein expressed skepticism that no action was taken by the Board\n\nduring the closed session. He asserted that the meeting agenda referenced an \"Adaptive Pause\"\nwithout further explaining what that term meant, and that the Board did not explain the Adaptive\n\nPause until after it returned from closed session. He contended that the administration could\nhave modified its recommendation during the closed session without the public knowing of the\n\nchanges given the lack of information in the agenda and discussion prior to the Board's closed\n14Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 7.\n15Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 7-8.\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 10\n\nsession. Additionally, Mr. Stein contended that the Board affirmed the superintendent's\nrecommendation by expressing its support for the adaptive pause. In particular, he asserted that\n\naffirming the plan is itself an action within the meeting of both the resolution and the Open\nMeetings Act.\" 16 ( Emphasis in original.) Mr. Stein argued that the Board discussed and\n\napproved the superintendent's reopening plan modification \"behind closed doors and then came\nout saying ' we have nothing to vote on because we are all in agreement.'\" 17\nBased on this office' s review of the closed session recording and the Resolution,\n\nthe Board did not take final action in closed session. The Board discussed the superintendent's\nrecommendation for an adaptive pause in closed session but announced its support for the\n\nadaptive pause in open session. The Board's support for an adaptive pause generally did not\nresolve the matter. While the adaptive pause at issue put a hold on juniors returning to in-person\n\nlearning, the Board stated in open session that it would discuss the matter further the following\nweek in another Board meeting. Indeed, the minutes of the Board' s October 29, 2020, special\n\nmeeting indicate that the Board voted at that meeting to approve the adaptive pause.18\nAccordingly, this office is unable to conclude that the Board took \" final action\" on the adaptive\n\npause during the October 22, 2020, closed session in violation of section 2(e) of OMA.\nPublic Comment\nSection 2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) ( 2020)) provides that \"[ a] ny person\n\nshall be permitted an opportunity to address public officials under the rules established and\nrecorded by the public body.\" Section 2.06( g) of OMA does not prescribe a method for public\n\ncomment during a public health emergency that precludes a public body from convening an inperson meeting. Similarly, the requirements for holding remote meetings without the physical\n\npresence of a quorum in section 7(e) of OMA referenced above do not address specifically how\nmembers of the public may address public officials.\nThe Public Access Bureau has previously determined that to warrant further\n\naction by this office, a Request for Review must set forth facts demonstrating that a member of\nthe public attempted to address public officials during an open meeting but was improperly\n\nrestricted from doing so. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 43028, issued July\n\n16Letter from Mark Stein, UniServ Director, LFEA/ IEA, to [Teresa] Lim (undated).\n17Letter from Mark Stein, UniServ Director, LFEA/ IEA, to [Teresa] Lim (undated).\n18Board of Education, Lake Forest Community High School District 115, Special Meeting,\nOctober 29, 2020, Minutes 6, available at https:// docs.google.com/document/d/16zEXQdcgwcYxo_APQmmD7vE3G- 7hA4J8cTHHyQKAwE/ edit.\n\n\fMr. Mark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 11\n\n22, 2016 (allegation that public comment rules violate OMA insufficient to merit further action\nabsent facts indicating that any member of the public was improperly restricted from addressing\n\npublic officials); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62825 62826, issued July 29, 2020 (unable to\nconclude that a board rule capping e- mailed public comments to 200 words per person violated\n\n2.06(g) of OMA in the absence of facts indicating that the board enforced the rule to limit any\nparticular submitted comments).\nIn its answer, the Board stated that no member of the public requested to provide\n\npublic comment after 12:00 p.m. on October 22, 2020, and it did not receive more requests for\ncomment than would fit within the 45- minute period for public comment. In reply, Mr. Stein\n\ncontended that the submission deadline and time limit discouraged members of the public from\nparticipating in public comment.\nAccording to the Board section of the School District' s website, members of the\n\npublic body wishing to participate in public comment at a virtual meeting could do so by emailing a request to its Chief Technology Officer by noon on the day of the meeting. 19 The\n\nwebsite further stated that the Chief Technology Officer would send instructions to the requester\non how to call in to provide public comment. 20 Members of the public could also submit written\n\ncomments.21 Mr. Stein did not provide specific facts suggesting that he or another member of\nthe public attempted to submit a request to provide public comment, and the Board enforced a\nrule to limit those comments. The minutes of the October 22, 2020, meeting reflect that several\n\nmembers of the public provided public comment during the meeting.22 Because this office has\nnot received information to indicate that a member of the public attempted to address the Board\n\nbut was improperly restricted from doing so, there is no basis for this office to conclude that the\nBoard violated section 2.06( g) at its October 22, 2020, meeting.\n\n19Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps://www.lakeforestschools.org/board-of-ed/district-115-boe (last visited February 2, 2021).\n20Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps:// www.lakeforestschools. org/board- of-ed/district- 115-boe ( last visited February 2, 2021).\n21Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps://www.lakeforestschools.org/board-of-ed/district-115-boe (last visited February 2, 2021).\n22Board of Education, Lake Forest Community High School District 115, Emergency Meeting,\nOctober 22, 2020, Minutes 2, available at\nhttps://docs.google.com/document/d/1FCLe6mMjTBpbGVFcUwzDDTsctGx8Jh0g4m4SUAEdnQg/ edit.\n\n\fr.\nMark Stein\nThe Honorable Jenny Zinser\n\nNovember 17, 2021\nPage 12\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nAssistant Attorney General\n\nPublic Access Bureau\n65418 o 202 notice proper 2c2 proper improper 2c8 improper 2e final action proper 7e7\nimproper 206g proper sd\ncc:\n\nVia electronic mail\n\nMs. Jackie Gharapour Wernz\nAttorney for Lake Forest Community High School District No. 115\n\nFranczek P.C.\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\njw@franczek. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's emergency meeting notice and closed-session discussions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":"A union representative complained that a school board failed to give 48 hours' notice for an emergency meeting about switching to remote learning due to COVID-19. The Illinois Attorney General's Public Access Bureau issued a determination concluding that the board did not violate the Open Meetings Act's notice requirement, because the board demonstrated that the changing circumstances surrounding the pandemic and the unanticipated county health guidance constituted a bona fide emergency. The determination addressed only the notice issue and did not resolve the other allegations about closed session discussions, improper final action, or public comment restrictions.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65418/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 17, 2021\n\nVia electronic mail\n\nMr. Mark Stein\nUniServ Director\n\nIllinois Education Association\n1860 Winchester Road\n\n[street address redacted for site publication -- see original PDF]\nmark. stein@ieanea. org\nVia electronic mail\n\nThe Honorable Jenny Zinser\nPresident, Board of Education\n\nLake Forest Community High School District No. 115\n300 South Waukegan Road\n\nLake Forest, Illinois 60045\nboed115@lfschools. net\nRE: OMA Request for Review – 2020 PAC 65418\nDear Mr. Stein and Ms. Zinser:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2020)).\nBACKGROUND\n\nOn October 26, 2020, Mr. Mark Stein, on behalf of the Lake Forest Education\nAssociation, submitted a Request for Review to the Public Access Bureau alleging that the Lake\n\nForest Community High School District No. 115 (School District) Board of Education (Board)\nviolated the requirements of OMA in connection with its October 22, 2020, meeting, which was\n\nconducted remotely. Specifically, Mr. Stein alleged that: (1) the Board posted the meeting\nagenda less than 48 hours in advance of the meeting, and no bona fide emergency existed; (2) the\nBoard discussed matters in closed session that did not fall within the scope of section 2(c)(2) of\n\nOMA (5 ILCS 120/2(c)(2) (West 2020)), the exception it cited as the basis for closing the\n\nmeeting; (3) the Board took improper final action on an agenda item by making a decision in\nclosed session on \" how to move forward in light of the recommendations made by the\n\nSuperintendent and the Lake City DPH\" related to full remote learning; and (4) the Board\nimproperly restricted public comment by limiting public comment to 30- 45 minutes and\n\nproviding less than 48 hours to submit comments by e-mail.1\nOn November 2, 2020, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide this office with copies of the October 22, 2020, meeting\n\nagenda, open and closed session minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to Mr. Stein's OMA allegations. On\n\nNovember 17, 2020, this office received the requested response. In its response, the Board\nasserted that its closed session discussion also fell within the scope of section 2(c)(8) of OMA (5\n\nILCS 120/2(c)(8) (West 2020)). On November 19, 2020, this office forwarded a copy of the\nBoard's response to Mr. Stein; he replied on November 30, 2020.\n\nDETERMINATION\nNotice of October 22, 2020, Meeting\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides:\nPublic notice of any special meeting except a meeting held in the\nevent of a bona fide emergency, or of any rescheduled regular\n\nmeeting, or of any reconvened meeting, shall be given at least 48\nhours before such meeting, which notice shall also include the\n\nagenda for the special, rescheduled, or reconvened meeting[.] * *\nNotice of an emergency meeting shall be given as soon as\n\npracticable, but in any event prior to the holding of such meeting,\nto any news medium which has filed an annual request for notice\n\nunder subsection (b) of this Section.\nOMA does not define the phrase \" bona fide emergency.\" However, the Public Access Bureau\nhas previously examined the plain meaning of a \" bona fide emergency\" and determined that\n\nunanticipated circumstances requiring immediate action that would justify providing less than\n48 hours' notice [ ]\" are necessary for a meeting to qualify as one held in the event of a bona fide\n\nemergency.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013, at 4.\n1OMA – Request for Review by Public Access Counselor form filed by Mark Stein, UnivServ\nDirector, Lake Forest Education Association, Lake Forest High School, Illinois Education Association (October 25,\n\nAdditionally, section 7(e) of OMA (5 ILCS 120/ 7(e) (West 2020)) sets forth the\n\nrequirements for emergency meetings held remotely because of a public health emergency, such\nas the COVID- 19 pandemic. Section 7(e)(7)(A) of OMA provides:\n7) Except in the event of a bona fide emergency, 48 hours'\n\nnotice shall be given of a meeting to be held pursuant to this\nSection. Notice shall be given to all members of the public body,\n\nshall be posted on the website of the public body, and shall also be\nprovided to any news media who has requested notice of meetings\n\npursuant to subsection (a) of Section 2.02 of this Act. If the public\nbody declares a bona fide emergency:\nA) Notice shall be given pursuant to subsection (a) of\n\nSection 2.02 of this Act, and the presiding officer shall state\nthe nature of the emergency at the beginning of the\n\nmeeting.\nIn its response to this office, the Board asserted that the October 22, 2020,\nmeeting \"was based on a bona fide public health emergency\" and thus that it did not violate\nOMA's notice requirements. 2 According to the Board, freshman and sophomores in the high\n\nschool began in-person instruction through an e-hybrid learning schedule in mid-October.\nJuniors were scheduled to return to in-person learning on October 26, 2020, while seniors were\n\nscheduled for November 2, 2020. The Board stated that it previously passed a COVID-19\nReopening Plan Approval Resolution (Resolution) authorizing the high school's administration\n\nto determine if and when students would return to school. The Resolution required, however,\nthat the superintendent discuss with the Board any substantive changes to the School District's\n\nre-opening plan, which the Board could affirm, modify, or disapprove; the Board could also take\nno action. The Board stated that on October 20, 2020, the Lake County Public Health\n\nDepartment issued a recommendation that schools move to virtual learning to slow the spread of\nCOVID. The Board acknowledged that it posted notice of its October 22, 2020, meeting on\n\nOctober 21, 2020, but asserted that the circumstances constituted a bona fide emergency, and\nthat the meeting's purpose was to consider the administration's recommendation for an \" adaptive\n\npause\" given the county health department recommendation and guidance from the Illinois State\nBoard of Education (ISBE). 3 Citing the ISBE guidance, the Board explained that \" an adaptive\n2 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 4.\n3 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\n\npause is a strategy that allows for movement into any level of remote learning to prevent disease\ntransmission\" and allows \" delayed reopening at the start of a specific school term or a pivot to\n\nremote learning once the school year is underway for school officials to have time to plan for\nnext steps with parents, teachers and staff.\" 4 The Board argued, in pertinent part:\nThere can be no doubt that it was appropriate for the Board, after\n\nlearning of the October 20, 2020, Lake County Public Health\nDepartment recommendation that schools close, to notice, on\n\nOctober 21, 2020, a meeting for October 22, 2020 to address\nwhether that recommendation and ISBE guidance together\n\nrequired Board review with respect to an adaptive pause. This was\nparticularly true when juniors were planning to return to school\n\nfour school days after the Health Department's recommendation.[5]\nEmphasis in original.)\nIn reply to that answer, Mr. Stein asserted that the Board failed to publicly\n\nidentify at the meeting the reason for calling an emergency meeting in violation of section\n7(e)(7)(A) of OMA. He stated that the Board only recited at the beginning of the meeting that it\n\nwas being held remotely pursuant to the Governor's disaster proclamation. Mr. Stein also\ncontended that the Board had sufficient time to schedule a meeting with 48 hours advance notice\nto the public, asserting that the Board could have scheduled a meeting on the Friday rather than\n\non Thursday.\nThe Board's October 22, 2020, meeting agenda states that it is \"An Emergency\nMeeting of the Board of Education\" and that the meeting would be held remotely in light of\n\npublic health concerns.6 The agenda lists one subject for discussion and possible action:\nIII.\n\nReports/Discussions\nAdaptive Pause\n\nIV.\n\nAction Items\n\n4 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 3.\n5 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 4.\n6 Board of Education, City of Lake Forest School District #115, Emergency Board of Education\n\n1.\n\nApproval of Adaptive Pause[7]\n\nThis office has previously determined that a public body did not violate section\n2.02(a) by providing less than 48 hours' notice of a meeting held on March 12, 2020, concerning\n\nan emergency declaration for the COVID-19 pandemic because the emergency was bona fide.\nIll. Att'y Gen. PAC Req. Rev. Ltr. 62712, issued June 8, 2020, at 4. In that matter, this office\n\nobserved that \"public bodies across the State were taking swift measures to react to the COVID19 pandemic in light of is rapid spread and devastating impact. The uncertainty and severity\n\ninvolved in the pandemic presented unanticipated circumstances warranting immediate action.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 62712, at 4.\nIt is undisputed that the October 22, 2020, meeting agenda was posted on the\n\nSchool District's website a day before the meeting. Notably, the county public health department\nhad issued a recommendation related to the pandemic within a week of the School District's plan\n\nto transition juniors to in-person learning and seniors shortly thereafter. Although Mr. Stein\ncontended that the Board could have scheduled its meeting a day later to provide 48 hours\n\nadvance notice to the public, the Board has demonstrated that the changing circumstances\nsurrounding the pandemic and unanticipated update in county public health guidance on October\n\n20, 2020, constituted a bona fide emergency necessitating prompt action. It is not unreasonable\nfor a school board to consider a county health department recommendation as soon as possible to\ngive staff and parents adequate notice of possible changes to a scheduled re- opening plan.\n\nFurther, the agenda and minutes reflect that the meeting was limited to addressing only the\nadaptive pause. Accordingly, this office concludes that the Board did not violate section 2.02(a)\n\nof OMA by holding an emergency meeting on October 22, 2020, with less than 48 hours'\nadvance notice.\nHowever, section 7(e)(7)(A) of OMA provides that if a public body holds a\n\nmeeting remotely pursuant to a public health emergency and is unable to provide at least 48\nhours' advance notice, \" the presiding officer shall state the nature of the emergency at the\n\nbeginning of the meeting.\" Based on this office's review of the verbatim recording of the\nbeginning of the October 22, 2020, meeting, the presiding officer announced that the Board\n\nPresident had determined that it was not practical or prudent to hold an in-person meeting and\nlikewise not feasible for the public to be present due to public health concerns. The presiding\n\nofficer did not, however, state the nature of the particular bona fide emergency that precipitated\nthat meeting, as required by section 7(e)(7)(A). The Board should be mindful of its obligation to\n\npublicly state the nature of the bona fide emergency at the beginning of the meeting if it holds an\nemergency meeting remotely under section 7(e) of OMA with less than 48 hours' advance notice.\n\n7 Board of Education, City of Lake Forest School District #115, Emergency Board of Education\n\nClosed Session Discussion\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Accordingly, OMA\nrequires that all meetings of a public body remain open to the public unless an exception in\n\nsection 2(c) of OMA is properly invoked. 5 ILCS 120/2(a), (c) (West 2020). The section 2(c)\nexceptions are to be \" strictly construed, extending only to subjects clearly within their scope.\" 5\n\nILCS 120/2(b) (West 2020).\nSection 2(c)(2) of OMA allows discussion in closed session of \"[c]ollective\nnegotiating matters between the public body and its employees or their representatives, or\n\ndeliberations concerning salary schedules for one or more classes of employees.\" By creating\nthe section 2(c)(2) exception, the General Assembly recognized \" that the very nature of\n\nmeaningful collective bargaining requires that certain phases of the negotiating process must be\nconducted privately.\"\n\nIll. Att'y Gen. Op. No. 80- 024, issued August 12, 1980, at 10- 11.\n\nGenerally, wages, hours and other terms and conditions of employment are proper subjects for\ncollective bargaining, as well as any other subject with respect to which the parties may have\n\nchosen to bargain.\" 1980 Ill. Att'y Gen. Op. 80-024, at 9. The Public Access Bureau has\npreviously determined that the exception for collective negotiating matters authorizes public\nbodies to enter closed session to discuss \" subjects about which the parties are going to bargain.\"\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 52158, issued June 14, 2018, at 3.\nAdditionally, section 2(c)(8) of OMA permits the discussion of \"[s]ecurity\nprocedures, school building safety and security, and the use of personnel and equipment to\n\nrespond to an actual, a threatened, or a reasonably potential danger to the safety of employees,\nstudents, staff, the public, or public property.\"\n\nUnder its plain language, the 2(c)(8) exception\n\npermits a public body to discuss security and safety issues and the use of staff and equipment to\nrespond to actual, threatened, or reasonably possible dangers to people and public property.\nThe Board asserted that the teacher's union, the Lake Forest Education\n\nAssociation, had in early August \"made a demand that the District bargain the specific issue of\nwhether it is safe for schools to reopen. Those negotiations remain open, active, and ongoing\n\nand are directly implicated by the administration's report on October 22.\" 8 (Emphasis in\noriginal.) According to the School District, the administration and union met on multiple\n\noccasions prior to the October 22, 2020, meeting without reaching a final agreement. The Board\nargued that all of the issues it discussed in closed session pertained \" to the implications of\n8 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\n\nreopening on wages, hours, and working conditions relating to bargaining.\" 9 The Board further\nargued that disclosure of its discussions \" would obliterate the District's ability to defend its\n\nposition in negotiations.\" 10 Additionally, the Board contended that it properly discussed matters\nin closed session pursuant to section 2(c)(8): \" All discussions at issue during closed session\n\nwere focused on the potential danger to safety of employees, students, staff, and others raised by\nthe Lake County Health Department declaration on October 20 and how the District should use\n\npersonnel and equipment to address that danger.\" 11\nMr. Stein disputed the Board's claim that disclosure of the Board's closed session\ndiscussion would interfere with the administration's ability to negotiate with the teacher's union.\n\nHe contended that there were no active and ongoing negotiations, asserting that the union had not\nmet with the administration since the first week of October and that a hybrid model had already\n\nbeen implemented in the second week of October. Mr. Stein acknowledged that the union\ndisapproved of the instruction model,\" and he emphasized that the administration and the union\n\nnever bargained over the adaptive pause.12 Mr. Stein further disputed the Board's claim that the\nclosed session discussion fell within the scope of the 2(c)(8) exception. He noted: \" Every\n\nschool in this country is dealing with the Pandemic. There is no privacy issue impinging on the\ndiscussion, or police investigation that would be compromised by having an open discussion.\" 13\n\nBased on this office's confidential review of the verbatim recording of the closed\nsession, the Board did not limit its discussion to topics that fell within the scope of the 2(c)(2)\n\nexception. A limited portion of the Board's discussion at the beginning of the closed session\ndirectly concerned the wages, hours, and working conditions of teachers. This office's review,\n\nhowever, determined that the remaining discussion concerned the adaptive pause and did not\npertain directly to collective bargaining issues. Although an adaptive pause presented\n\nimplications for teachers and staff, there is no indication that the administration and the union\nbargained over the adaptive pause, and most of the closed session discussion did not center on\n\nthe impacts of an adaptive pause on the particular working conditions of staff. The discussion\ndid not, for instance, focus on specific concerns or complaints from teachers that would be\n9 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 6.\n10 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 6.\n11 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\n\nsubject to collective bargaining or weigh specific collective negotiating strategies. Instead, the\nBoard considered the current public health guidance, the appropriateness of an adaptive pause,\n\nand other issues related to the adaptive pause. Accordingly, this office is unable to conclude that\nthe 2(c)(2) exception applied to the entire discussion.\nFurther, the Board has not demonstrated that its discussion fell within the scope of\n\nthe 2(c)(8) exception. Based on this office's review of the ISBE guidance, an adaptive pause is a\nschool's shift to any level of remote learning and concerns a length of time during which a school\n\nwill administer remote learning. It relates to a mode of learning in response to public health\nconcerns rather than building security concerns. Additionally, it is not apparent from this office's\n\nreview of the recording that the Board discussed how to use personnel and equipment to respond\nto potential dangers to the health and safety of students and staff. The Board generally noted that\n\nhealth and screening measures were in place at the high school but did not discuss any of those\nmeasures in detail. Although an adaptive pause relates to public health concerns and is intended\n\nto prevent disease transmission, the Board has not illustrated that the adaptive pause constitutes a\nsecurity procedure or that it discussed specifically the safety and security of the high school\n\nbuilding, such as security measures currently in place at the building. Accordingly, this office is\nunable to conclude that the discussion fell within the scope of the section 2(c)(8) exception.\n\nThis office requests that the Board vote to make available for public inspection a\ncopy of the verbatim recording of the closed session portion of its October 22, 2020, meeting,\n\nbut the Board may redact the first 15 minutes and 50 seconds of the recording.\nFinal Action\n\nSection 2(e) of OMA (5 ILCS 120/2(e) (West 2020)) provides: \" No final action\nmay be taken at a closed meeting. Final action shall be preceded by a public recital of the nature\n\nof the matter being considered and other information that will inform the public of the business\nbeing conducted.\" (Emphasis added.)\nIn Gosnell, the plaintiff alleged that a school board improperly took final action in\n\nclosed session by making a request for mediation as an alternative to the negotiations it had been\nconducting with a union. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 (5th Dist. 1989). The\n\ncourt held:\nT]he request for mediation was part of the process of reaching a\n\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\n\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\nAccordingly, a component of a public body's process of reaching final action generally does not,\nitself, constitute final action. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued\n\nJuly 14, 2015, at 3 (city council's vote to direct staff to explore funding for a sporting event bid\nwas not final action because it was merely a step in furtherance of reaching final action). Rather,\n\nfinal action' generally must bring a matter to a resolution.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n43111, issued August 4, 2016, at 3 (vote to reconsider whether to award a contract to the low\n\nqualified bidder was not final action because it did not resolve the matter in that \"final action on\nwhether to in fact award the contract was held over until the next meeting.\").\n\nA public body may\n\ngenerally reach a preliminary consensus in closed session but must vote on the matter in open\nsession for valid final action to occur. Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney\n\nGen. of Illinois, 2017 IL 120343, ¶74, 77 N.E.3d 625, 637 (2017).\nThe Board denied that it took any final action at the October 22, 2020, meeting.\nThe Board contended that \"[ d] uring the closed session, the Superintendent explained his\n\nrecommendation with respect to reopening and listened to the Board members' opinions about\npotential impacts on collective bargaining and safety[,]\" but that the Board took no actions in the\nclosed meeting. 14 The Board stated that the superintendent announced in open session his\n\nrecommendation \"that the school take an adaptive pause, meaning junior students would not\nreturn to school the following Monday. Notably, the Superintendent notified the public that, per\n\nthe Resolution, the Board was not required to act regarding his recommendation for it to be\neffective.\" 15 The Board emphasized that the Resolution only required the administration to\n\ninform the Board of changes to the re-opening plan and asserted that the superintendent made the\ndecision to take an adaptive pause.\nIn reply, Mr. Stein expressed skepticism that no action was taken by the Board\n\nduring the closed session. He asserted that the meeting agenda referenced an \"Adaptive Pause\"\nwithout further explaining what that term meant, and that the Board did not explain the Adaptive\n\nPause until after it returned from closed session. He contended that the administration could\nhave modified its recommendation during the closed session without the public knowing of the\n\nchanges given the lack of information in the agenda and discussion prior to the Board's closed\n14 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\nBureau (November 17, 2020), at 7.\n15 Letter from Jackie Wernz, Franczek, to Teresa Lim, Assistant Attorney General, Public Access\n\nsession. Additionally, Mr. Stein contended that the Board affirmed the superintendent's\nrecommendation by expressing its support for the adaptive pause. In particular, he asserted that\n\naffirming the plan is itself an action within the meeting of both the resolution and the Open\nMeetings Act.\" 16 (Emphasis in original.) Mr. Stein argued that the Board discussed and\n\napproved the superintendent's reopening plan modification \"behind closed doors and then came\nout saying ' we have nothing to vote on because we are all in agreement.'\" 17\nBased on this office's review of the closed session recording and the Resolution,\n\nthe Board did not take final action in closed session. The Board discussed the superintendent's\nrecommendation for an adaptive pause in closed session but announced its support for the\n\nadaptive pause in open session. The Board's support for an adaptive pause generally did not\nresolve the matter. While the adaptive pause at issue put a hold on juniors returning to in-person\n\nlearning, the Board stated in open session that it would discuss the matter further the following\nweek in another Board meeting. Indeed, the minutes of the Board's October 29, 2020, special\n\nmeeting indicate that the Board voted at that meeting to approve the adaptive pause.18\nAccordingly, this office is unable to conclude that the Board took \" final action\" on the adaptive\n\npause during the October 22, 2020, closed session in violation of section 2(e) of OMA.\nPublic Comment\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (2020)) provides that \"[ a] ny person\n\nshall be permitted an opportunity to address public officials under the rules established and\nrecorded by the public body.\" Section 2.06(g) of OMA does not prescribe a method for public\n\ncomment during a public health emergency that precludes a public body from convening an inperson meeting. Similarly, the requirements for holding remote meetings without the physical\n\npresence of a quorum in section 7(e) of OMA referenced above do not address specifically how\nmembers of the public may address public officials.\nThe Public Access Bureau has previously determined that to warrant further\n\naction by this office, a Request for Review must set forth facts demonstrating that a member of\nthe public attempted to address public officials during an open meeting but was improperly\n\nrestricted from doing so. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 43028, issued July\n\n16 Letter from Mark Stein, UniServ Director, LFEA/ IEA, to [Teresa] Lim (undated).\n17 Letter from Mark Stein, UniServ Director, LFEA/ IEA, to [Teresa] Lim (undated).\n18 Board of Education, Lake Forest Community High School District 115, Special Meeting,\nOctober 29, 2020, Minutes 6, available at https:// docs.google.com/document/d/16zEXQdcgwcYxo_APQmmD7vE3G- 7hA4J8cTHHyQKAwE/ edit.\n\n22, 2016 (allegation that public comment rules violate OMA insufficient to merit further action\nabsent facts indicating that any member of the public was improperly restricted from addressing\n\npublic officials); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62825 62826, issued July 29, 2020 (unable to\nconclude that a board rule capping e- mailed public comments to 200 words per person violated\n\n2.06(g) of OMA in the absence of facts indicating that the board enforced the rule to limit any\nparticular submitted comments).\nIn its answer, the Board stated that no member of the public requested to provide\n\npublic comment after 12:00 p.m. on October 22, 2020, and it did not receive more requests for\ncomment than would fit within the 45- minute period for public comment. In reply, Mr. Stein\n\ncontended that the submission deadline and time limit discouraged members of the public from\nparticipating in public comment.\nAccording to the Board section of the School District's website, members of the\n\npublic body wishing to participate in public comment at a virtual meeting could do so by emailing a request to its Chief Technology Officer by noon on the day of the meeting. 19 The\n\nwebsite further stated that the Chief Technology Officer would send instructions to the requester\non how to call in to provide public comment. 20 Members of the public could also submit written\n\ncomments.21 Mr. Stein did not provide specific facts suggesting that he or another member of\nthe public attempted to submit a request to provide public comment, and the Board enforced a\nrule to limit those comments. The minutes of the October 22, 2020, meeting reflect that several\n\nmembers of the public provided public comment during the meeting.22 Because this office has\nnot received information to indicate that a member of the public attempted to address the Board\n\nbut was improperly restricted from doing so, there is no basis for this office to conclude that the\nBoard violated section 2.06(g) at its October 22, 2020, meeting.\n\n19 Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps://www.lakeforestschools.org/board-of-ed/district-115-boe (last visited February 2, 2021).\n20 Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps:// www.lakeforestschools. org/board- of-ed/district- 115-boe (last visited February 2, 2021).\n21 Notice Regarding Board Meetings, LAKE FOREST SCHOOLS,\nhttps://www.lakeforestschools.org/board-of-ed/district-115-boe (last visited February 2, 2021).\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nAssistant Attorney General\n\nPublic Access Bureau\n65418 o 202 notice proper 2c2 proper improper 2c8 improper 2e final action proper 7e7\nimproper 206g proper sd\ncc:\n\nVia electronic mail\n\nMs. Jackie Gharapour Wernz\nAttorney for Lake Forest Community High School District No. 115\n\nFranczek P.C.\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\njw@franczek. com"}
{"id":1345,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-01-26","case_number":null,"request_numbers":["65448"],"title":"Jefferson County Board violated Open Meetings Act with private pre-meeting discussion","filename":"65448, issued January 26, 2021.pdf","rel_path":null,"word_count":3898,"summary":"The PAC investigated an allegation that Jefferson County Board members held an improper private discussion regarding the purchase of equipment for the County Sheriff prior to a public meeting. The PAC concluded that the Board violated the Open Meetings Act by engaging in secret deliberations.","plain_summary":"A member of the Jefferson County Board complained that other board members held a private, pre-meeting discussion about voting on a sheriff's equipment purchase. The Attorney General's office determined this private discussion violated the Open Meetings Act, which requires public business to be conducted in open sessions. The Board was asked to refrain from such secret deliberations in the future.","holding":"The Jefferson County Board violated the Open Meetings Act by discussing public business outside of an open public meeting.","legal_question":"Whether a gathering of a majority of a quorum of a public body to discuss public business prior to a scheduled meeting constitutes an improper 'meeting' under the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)","5 ILCS 120/2.01"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Jefferson County Board","requesting_party":"Jeffrey Nowland","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board members held an unauthorized private discussion regarding the purchase of equipment for the County Sheriff prior to a public meeting.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/65448, issued January 26, 2021.pdf","sha256":"923dce4675df44f1f0239799fe4a576beb5258f85a965b36137bb34104f869ac","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","public meeting","deliberation","quorum"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJanuary 26, 2021\n\nVia electronic mail\nThe Honorable Jeffrey Nowland\nTrustee\nJefferson County Board\n[street address redacted for site publication -- see original PDF]\njnowland@mtv80.org\nVia electronic mail\nThe Honorable Clifford Lindemann\nChairman\nJefferson County Board\nI 00 South 10th Street, Room I 06\nMt. Vernon, Illinois 62864\ndistrict8@jeffil.us\nRE: OMA Request for Review - 2020 PAC 65448\nDear Mr. Nowland and Mr. Lindemann:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) 5 ILCS 120/3.S(e) (West 2018)). For the reasons discussed below, this office concludes\nthat the Jefferson County Board (Board) violated OMA on October 26, 2020, by discussing\npublic business outside of an open public meeting.\n\nBACKGROUND\nOn October 27, 2020, Mr. Jeffrey Nowland, a member of the Board, submitted a\nRequest for Review to the Public Access Counselor alleging that the Board violated OMA prior\nto its October 26, 2020, Board meeting when some of the members of the Board gathered in the\nBoard room before the meeting began and discussed voting in favor of purchasing certain\nequipment for the County Sheriff. Mr. Nowland stated:\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 2\n\nPrior to the start of the meeting, Randy Edwards, who is the\nvice chairman of the Jefferson County Board began to call board\nmembers over to where he was sitting to discuss 'how to' vote on\nthe purchase of radio's for county squad cars. Edwards had the\ncounty chairman Cliff Lindleman sitting to his left and member\nSteve Draege sitting to his right. Board m.embers Adam Ortgiesen,\nSean Wilkey and James Malone were called over, or came over on\ntheir own, to join in on the conversation. Counting Edwards, there\nwere a total of 6-7 members in the discussion at the same time.\nWayne Hicks, another board member, was sitting in close\nproximity to the conversation. The conversation consisted of\nRandy Edwards discussing with the said board members on why\nthey should vote \" yes\" on the purchase of equipment from\nNovacom. He addressed each member and made it very clear that\nthey should side with his decision. This information was repeated\nmultiple times. I was roughly 15 feet away from the conversation\nand heard this very clearJy_[ll\nOn November 13, 2020, the Public Access Bureau sent a copy of the Request for\nReview to the Chairman of the Board, Mr. Clifford Lindemann, together with a letter asking the\nBoard to provide a detailed written response to the allegations raised in Mr. Nowland's Request\nfor Review. 2 In particular, the Public Access Bureau asked the Board to (1) describe in detail,\nany and all discussions and communications that occurred between and among Board members\noutside of an open meeting concerning Board business, as referenced in Mr. Nowland's Request\nfor Review; (2) provide the names of the persons who participated in such communications; (3)\nstate the total number of Board members, and the total number of Board members who\nparticipated in these communications; and (4) provide for this office's confidential review a copy\nof the agenda, minutes, and any recordings from the October 26, 2020, meeting.\n\n27, 2020).\n\n'E-mail from Jeffrey Nowland to Public Access [Bureau, Office of the Attorney General] (October\n2\n\nLetter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to the Honorable Clifford Lindemann, Chairman, Jefferson County Board (November 13,\n2020), e-mailed to Mr. Lindemann at district8@jeffil.us. The letter was also e-mailed to Ms. Suzy Tate, County\nAdministrator, Jefferson County, at jeffcoboard@jeffil.us. Subsequent e-mail from Mr. Lindemann was either sent\nfrom an e-mail account labeled district8@jeffil.us or from what appears to be a personal e-mail account.\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 3\n\nOn November 18, 2020, Mr. Lindemann provided a written response on behalf of\nthe Board and copies of the October 26, 2020, meeting agenda and draft minutes, and a link to\nthe recording of the meeting. The response stated that the Board is comprised of thirteen\nmembers and briefly described the discussion that occurred between the Board members: \"Vice\nChairman Edwards spoke to me prior to the meeting in regards to the radio bids as well as\nspeaking to County Board Members Steve Draege, Adam Ortgiesen and James Malone. Mr.\nEdwards spoke to these members separately.\" 3 Later that day, an Assistant Attorney General in\nthe Public Access Bureau asked for a detailed description of the conversation that took place\nbetween Mr. Edwards and each of the Board members about the radio bids, and to provide the\ntime period during which the discussion took place. Mr. Lindemann replied: \"Mr. Edwards\ntalked to the individuals for a minute or two from 6:45 to about 7:00. He expressed his views on\nbuying the Novacom radios because they were a superior system. \"4 On November 20, 2020, the\nPublic Access Bureau forwarded a copy of the Board's response to Mr. Nowland. He replied on\nNovember 24, 2020, asserting that \"[a]ll of the board members listed were standing together in a\ngroup, around Mr. Edwards, discussing which provider of communications should be selected.\nNever did Mr. Edwards leave the group with an individual to discuss the matter in a true 'one-to­\none' setting. \" 5\nOn December 7, 2020, an Assistant Attorney General (AAG) in the Public Access\nBureau asked Mr. Lindemann to describe the back and forth discussion that transpired between\nMr. Edwards and the other Board members; he replied: \"I did not hear the conversations in\nquestion. I was busy preparing for the board meeting.\" 6 The AAG then asked Mr. Lindemann to\n\"[p ]lease ask the other members of the Board to describe in detail the back and forth\nconversation that transpired between Mr. Edwards and the other Board members prior to the\nmeeting regarding the radios or any other Board business.\" 7 (Emphasis in original.) Although\n'Letter from Clifford Lindemann, Chairman of the Jefferson County Board, to Edie Steinberg,\nSenior Assistant Attorney General, Public Access Bureau [Office of the Attorney General] (November 18, 2020).\n4\nE-mail from Clifford Lindemann's e-mail address labeled \"Suzy Tate <district8@jeffil.us>\" to\nEdie Steinberg [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General]\n(November I 9, 2020).\n\n'E-mail from Jeff Nowland to [Edie] Steinberg, [Senior Assistant Attorney General, Public Access\nBureau, Office of the Attorney General) (November 24, 2020).\n6\n\nE-mail from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Illinois Attorney General, to [Suzy] Tate and [Cliff] Lindeman (December 7, 2020); e-mail from Clifford\nLindemann to Edie Steinberg [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral) (December 7, 2020).\nE-mail from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Illinois Attorney General, to [Suzy] Tate and [Cliff] Lindeman (December 7, 2020).\n7\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 4\n\nhe did not state whether he asked other Board members about the discussion, on December 8,\n2020, Mr. Lindemann replied: \"Mr. Edwards stated to other board members that he felt we\nshould follow the Sheriffs suggestion to go with the better radio equipment even though they\ncost more. The board members agreed with Edwards because the radios were far better. In my\nopinion Edwards did not talk to more than one member at a time. \" 8\nThe AAG also asked Mr. Nowland to describe the conversation between Board\nmembers in more detail. He replied:\nMr. Edwards expressed his personal beliefs when he was\nspeaking to the mentioned board members that \"we need to vote\nfor the purchase of the Novacom radios, because that is the best\nequipment and that is what the sheriff wants\". As mentioned in a\nprevious email, this conversation was with members Wilkey,\nMalone and Ortgiesen who had been called over to the location of\nEdwards. They were not in the proximity of Edwards prior to being\ncalled over. They left their seats to join the conversation. Board\nmembers Lindemann and Williams were already sitting next to\nEdwards. I am unable to state what the other members said\nspecifically during the conversation, but I can say with I 00%\nassurance that Edwards was not the only active member in the\nconversation. There was discussion back and forth between them\nregarding the matter. 191\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" (Emphasis added.) 5 ILCS 120/1 (West 2018).\n\n'E-mail from Clifford Lindemann, to Edie Steinberg, [Senior Assistant Attorney General, Public\nAccess Bureau [Office of the Attorney General, State of Illinois) (December 8, 2020). On December 10, 2020, Mr.\n\nLindemann sent an additional e-mail to the AAG stating: \"Sorry for the late response. I must have deleted my reply.\nMr. Edwards shared his concern to other members about purchasing an inferior radio system for the Sheriffs office.\n\nHe told them each individually that he felt we should buy the best equipment for the sheriff. No other business was\ndiscussed.\" E-mail from Clifford Lindemann, Jefferson Co. Board Chairman, to Edie Steinberg, [Senior Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois) (December 10, 2020).\n9\n\nE-mail from Jeff Nowland to Edie Steinberg, [Senior Assistant Attorney General, Public Access\n\nBureau, Office of the Attorney General) (December 7, 2020).\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 5\n\n\"(T]he [Open Meetings] Act is designed to prohibit secret deliberation and action\non business which properly should be discussed in a public forum due to its potential impact on\nthe public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191,202 (1980); see also Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (5th Dist. l 989) (\"The Open Meetings Act provides that public\nagencies exist to aid in the conduct of the people's business, and that the intent of the Act is to\nassure that agency actions be taken openly and that their deliberations be conducted openly.\").\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2018),as amended by Public Act\n101-640, effective June 12, 2020) provides that \"[a]ll meetings required by this Act to be public\nshall be held at specified times and places which are convenient and open to the public.\"\nFurther, section 2(a) of OMA (5 ILCS 120/2(a) (West 2018)),as amended by Public Acts 101031, effective June 28, 2019; 101-459, effective August 23, 2019) provides that \"(a]ll meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Therefore, the requirements of OMA to apply to any gathering of\nmembers of a public body that constitutes a \"meeting\" as defined by section 1.02 of OMA (5\nILCS 120/1.02 (West 2018)):\n\"Meeting\" means any gathering,whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\n. messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nIn determining whether a gathering of a majority of a quorum of the members of a\npublic body constituted a \"meeting\" subject to OMA,the Illinois Supreme Court has instructed\nthat \"[t]he Act is only addressed to meetings designed to discuss or reach an accord with regard\nto public business which properly should be deliberated or acted upon in an open forum.\" Barr,\n83 Ill. 2d at 210. In Barr, the Illinois Supreme Court held that nine public officials, a majority of\na fifteen-member city council,violated OMA by holding a private meeting during which they\ndiscussed a new ward map, the appointments of public officers for two separate agencies, and a\nhousing development-all items that were set to be discussed in a public meeting later that same\nnight. Barr, 83 Ill. 2d at 202, 211; see also Hinds County Republican Party v. Hinds County,\nMississippi, 432 F. Supp. 3d 684, 702 (S.D. Miss. 2020) (county supervisors who agreed during\nthe recess of a meeting to adopt a certain plan violated Mississippi's version of OMA (Miss.\nCode Ann.§ 25-41-1 et seq. (West 2018)).\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 6\n\nMr. Nowland alleges that a majority of a quorum of the Board gathered prior to\nthe October 26, 2020, Board meeting and discussed which communications provider should be\nselected for the purchase of equipment for the County Sheriff's Office. The Board consists of 13\nmembers, including the chairman; a quorum of the Board is seven members and a majority of a\nquorum of the Board is four members. Therefore, if four or more members of the Board\ngathered and engaged in contemporaneous, interactive, deliberative discussions of public\nbusiness, such a gathering would be a meeting to which the procedural safeguards and\nrequirements of OMA would apply.\nThere is no dispute that between 6:45 p.m. and 7:00 p.m., just prior to the Board's\nOctober 26, 2020, 7:00 p.m. public meeting, Mr. Randy Edwards, the Vice Chair of the Board,\ndiscussed public business of the Board, its upcoming vote of purchasing certain radio equipment\nfor county squad cars, with at least four other members of the Board. Indeed, during the October\n26, 2020, meeting, the Board voted \"to approve the bid from Novacom in the amount of\n$118,750 for 3 cites for the Sheriff's digital radios.\" 1 ° Further, while other members of the\nBoard may have participated in the discussion, there is no dispute that Mr. Edwards discussed\nthe purchase of the equipment prior to the Board meeting with four other members-Mr.\nLindemann, Mr. Draege, Mr. Malone, and Mr. Ortgiesen; those five members of the Board\nconstitute a majority of a quorum. Accordingly, a majority of a quorum of the Board discussed\npublic business immediately prior to the official Board meeting. Therefore, the determinative\nissue is whether the communication between the Board members was contemporaneous and\ninteractive.\nThe information provided to this office establishes that the discussion between\nMr. Edwards and the other members of the Board was interactive, i.e., reciprocally or mutually\nactive. 11 First, Mr. Nowland described the communication that took place as reciprocal, stating:\n\"I can say with I 00% assurance that Edwards was not the only active member in the\nconversation. There was discussion back and forth between them regarding the matter.\" 12\nSecond, Mr. Lindemann also described the communication that took place as reciprocally active,\nstating that Mr. Edwards told the \"other board members that he felt we should follow the\n10Jefferson Counly Board, Full Board Meeting, October 26, 2020, Minutes 2, available at\nhttp://www.jeffersoncountyillinois.com/sites/default/files/Full%20Board%20l 0.26.2020.pdf.\n11\n\n\"1nteractive\" is defined, in relevant part, as \"mutually or reciprocall}' active.\" Merriam-Webster\nOnline Dictionary, https://www.merriam-webster.com/dictionary/interactive (last visited January 15, 2021). See,\ne.g., Valley Forge Insurance Co. v. Swiderski Electronics Inc., 223 Ill. 2d 352,366 (2006) (undefined statutory\nterms should be afforded their \"plain, ordinary, and popular meanings[,]\" which may be gleaned from dictionaries).\n12\n\nE-mail from Jeff Nowland to Edie Steinberg, [Senior Assistant Attorney General, Public Access\nBureau , Office of the Attorney General] (December 7, 2020).\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 7\n\nSheriffs suggestion to go with the better radio equipment even thou :fh they cost more. The board\nmembers agreed with Edwards because the radios were far better.\" 1 Third, during the October\n26, 2020, meeting, Mr. Edwards described the pre-meeting communication that took place about\nthe radios to be purchased for use by the Sheriffs Office as mutually active. After Mr. Edwards\nspoke about the purchase of the radios during the meeting, Mr. Nowland asked Mr. Edwards:\n\"Was this part ofthe conversation you had when you called halfthe board members up here\nearlier that the rest ofus didn't hear?\" 14 After a bit ofback and forth conversation between Mr.\nEdwards and Mr. Nowland, where Mr. Edwards initially denied any discussion with other Board\nmembers prior to the meeting, Mr. Edwards acknowledged the discussion between the Board\nmembers, stating loudly: \"What I discuss between friends is my own business.\" 15 Because the\ndiscussion ofpublic business between a majority ofa quorum of the Board constituted\ninteractive communication, whether the pre-meeting gathering constituted a meeting under OMA\ndepends on whether the communications were also \"contemporaneous.\"\nThe information provided to this office establishes that the discussion between\nMr. Edwards and the other members ofthe Board was contemporaneous, i.e., happening within\nthe same time frame. 16 Mr. Nowland has consistently provided detailed information to this\noffice, which described Mr. Edwards discussing this matter with the group as a whole. The\nposition ofthe Board has been inconsistent. At the meeting Vice Chair Edwards first denied any\ndiscussion at all, then he acknowledged that there was a discussion \"between\" him and \"my\nfriends.\" The Board's initial response to this office, by Mr. Lindemann, stated that Mr. Edwards\nspoke to Mr. Lindemann about the purchase of the equipment and then separately with the other\nBoard members. Mr. Lindemann later informed this office that he did not hear the discussion\nbetween Mr. Edwards and the other Board members. Further, after being asked to contact the\nother Board members regarding the discussion, Mr. Lindemann, replied that it was his \"opinion\"\n13 E-mail from Clifford Lindemann, [Chairman, Jefferson County Board], to Edie Steinberg, Senior\nAssistant Attorney General, Public Access Bureau [Office of the Attorney General, State oflllinois] (December 8,\n2020).\n14Jefferson County Board, Full Board.Meeting, October 26, 2020, Audio Recording at\napproximately 38:10-40:32, available at http://jeffil­\nus.kfu.ghs.mybluehost.me/meetings/2020/0ct%20Full%20Bd%20 I of2%20 I 0.26.2020.mp3.\n\n\"Jefferson County Board, Full Board Meeting, October 26, 2020, Audio Recording at\napproximately 38: 10-40:32, available at http://jeffil­\nus.kfu.ghs.mybluehost.me/meetings/2020/0ct%20Full%20Bd%20 I of2%20 I 0.26.2020.mp3.\n16\n\nConternporaneous\" is defined as \"existing, occurring, or originating during the same time.\"\nMerriam-Webster Online Dictionary, https://www .merriam-webster.com/dictionary/contemporaneous (last visited\nJanuary 15, 2021).\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 8\nthat Mr. Edwards only talked to \"one member at a time.\" 17 Based on the changing and cursory\ndescription given by the Board, this office accepts Mr. Nowland's consistent and detailed\ndescription of the events, in which he informed the Public Access Bureau that Mr. Edwards\ndiscussed the business of the Board with the other Board members at the same time as they\ngathered around him in a group. Accordingly, the discussion regarding which bid to accept for\nthe radio equipment immediately prior to the official Board meeting constituted a\ncontemporaneous, interactive, deliberative discussion of public business by a majority of a\nquorum of the Board. Therefore, this gathering constituted a meeting under the definition of that\nterm in section 1.02 of OMA.\nAs in Barr, Board members thwarted the intent of OMA by informally discussing\npublic business prior to the official meeting. Not only did that discussion constitute a secret\nmeeting, it violated the letter of the law requiring public body meetings to be open unless falling\nwithin an exception set forth in section 2(c) of OMA (5 ILCS 120/2 (West 2018), as amended by\nPublic Acts 101-031, effective June 28, 2019; 101-459, effective August 23, 2019). The Board\ndid not assert any such exception and none applies here. Under these circumstances, this office\nconcludes that the informal discussion before the October 26, 2020, meeting commenced was an\nimproper secret meeting held in violation of the requirement, in sections 2(a) and 2.01 of OMA,\nthat meetings of public bodies be open to the public.\nThis office notes that even if Mr. Edwards held the discussion with each of the\nBoard members separately, during the fifteen minutes immediately prior to the official meeting,\nthe communications between a majority of a quorum of the Board still would have constituted a\n\"meeting.\" As the Illinois Supreme Court noted in Barr, '\"[t]here is rarely any purpose to a non­\npublic pre-meeting conference except to conduct some part of the decisional process behind\nclosed doors.'\" Barr, 83 Ill. 2d at 200, quoting Sacramento Newspaper Guild, Local 92 v.\nSacramento County Board of Supervisors, 263 Cal. App. 2d 41, 50 (Cal. App. 1968). In light of\nthe definition of \"contemporaneous\" as well as OMA's broad definition of a meeting and OMA's\npurpose of assuring that public bodies deliberate openly, \"contemporaneous communications\" is\nnot limited to simultaneous or real time communications, but includes communications which\noccur in the same general time frame. 18 Otherwise, a Board could evade the requirement to\n17\nE-mail from Clifford Lindemann, Jefferson Co. Board Chairman, to Edie Steinberg, [Senior\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois] (December 10,\n2020).\n18\n\nWhile the Illinois Appellate Court has not yet been called upon to decide how close in time\ncommunications must be in order to be \"contemporaneous,\" for purposes of OMA, that term must be construed as\npart of OMA as a whole. See Jackson v. Board ofElection Commissioners, 2012 IL 111928, 148, 975 N.E. 2d 583,\n596 (2012) (a \"statute should be evaluated as a whole, with each provision construed in connection with every other\nsection.\"). Pursuant to section 1.02 of OMA, a meeting includes in person meetings as well as electronic\ncommunication, such as e-mail or text, which by their very nature cannot occur at exactly the same time but may\n\n\fThe Honorable Jeffrey Nowland\nThe Honorable Clifford Lindemann\nJanuary 26, 2021\nPage 9\n\ndeliberate openly by rotating people in and out of secret discussions. Accordingly, even if Mr.\nEdwards discussed the purchase of the radio equipment with the four other Board members\nseparately within the fifteen-minute time period immediately preceding the official Board\nmeeting, where a vote on that subject was scheduled, those discussions would constitute\ncontemporaneous interactive communications within the meaning of OMA, and be in violation\nof sections 2.01 on 2(a) of OMA.\nTo remedy the Board's violation of sections 2.01 and 2(a) of OMA, this office\nrequests the Board to take appropriate action to comply with this opinion by refraining from\nengaging in secret deliberation, whether in person, by telephone, or electronically, in the future.\nThe Public Access Counselor has determined that resolution of this matter does not require the\nissuance of a binding opinion. This file is closed. If you have any questions, you may contact\nme at (312) 814-5201 or at the Chicago address on the bottom of the first page of this letter.\nVery truly yours,\n\n.\n\n-\n\n-Y\n_\nSenior Assistant Attorney G�;c:;!;!a:.l ____\nPublic Access Bureau\n65448 o 201 improper 2a improper co\n\noccur within the same general time frame. See Tepfer v. Deerfield Savings & loan Ass'n, 118 Ill. App. 3d 77, 80-82\n\n( I st Dist. 1983) (in construing the meaning of contemporaneous instruments, the court held that contemporaneous\nmeans proximate in lime as to grow out of the transaction).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's private discussion of equipment purchases","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65448/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJanuary 26, 2021\n\nVia electronic mail\nThe Honorable Jeffrey Nowland\nTrustee\nJefferson County Board\n[street address redacted for site publication -- see original PDF]\njnowland@mtv80.org\nVia electronic mail\nThe Honorable Clifford Lindemann\nChairman\nJefferson County Board\nI 00 South 10th Street, Room I 06\nMt. Vernon, Illinois 62864\ndistrict8@jeffil.us\nRE: OMA Request for Review - 2020 PAC 65448\nDear Mr. Nowland and Mr. Lindemann:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) 5 ILCS 120/3.S(e) (West 2018)). For the reasons discussed below, this office concludes\nthat the Jefferson County Board (Board) violated OMA on October 26, 2020, by discussing\npublic business outside of an open public meeting.\n\nBACKGROUND\nOn October 27, 2020, Mr. Jeffrey Nowland, a member of the Board, submitted a\nRequest for Review to the Public Access Counselor alleging that the Board violated OMA prior\nto its October 26, 2020, Board meeting when some of the members of the Board gathered in the\nBoard room before the meeting began and discussed voting in favor of purchasing certain\nequipment for the County Sheriff. Mr. Nowland stated:\n\nPrior to the start of the meeting, Randy Edwards, who is the\nvice chairman of the Jefferson County Board began to call board\nmembers over to where he was sitting to discuss 'how to' vote on\nthe purchase of radio's for county squad cars. Edwards had the\ncounty chairman Cliff Lindleman sitting to his left and member\nSteve Draege sitting to his right. Board m.embers Adam Ortgiesen,\nSean Wilkey and James Malone were called over, or came over on\ntheir own, to join in on the conversation. Counting Edwards, there\nwere a total of 6-7 members in the discussion at the same time.\nWayne Hicks, another board member, was sitting in close\nproximity to the conversation. The conversation consisted of\nRandy Edwards discussing with the said board members on why\nthey should vote \" yes\" on the purchase of equipment from\nNovacom. He addressed each member and made it very clear that\nthey should side with his decision. This information was repeated\nmultiple times. I was roughly 15 feet away from the conversation\nand heard this very clearJy_[ll\nOn November 13, 2020, the Public Access Bureau sent a copy of the Request for\nReview to the Chairman of the Board, Mr. Clifford Lindemann, together with a letter asking the\nBoard to provide a detailed written response to the allegations raised in Mr. Nowland's Request\nfor Review. 2 In particular, the Public Access Bureau asked the Board to (1) describe in detail,\nany and all discussions and communications that occurred between and among Board members\noutside of an open meeting concerning Board business, as referenced in Mr. Nowland's Request\nfor Review; (2) provide the names of the persons who participated in such communications; (3)\nstate the total number of Board members, and the total number of Board members who\nparticipated in these communications; and (4) provide for this office's confidential review a copy\nof the agenda, minutes, and any recordings from the October 26, 2020, meeting.\n\n27, 2020).\n\n'E-mail from Jeffrey Nowland to Public Access [Bureau, Office of the Attorney General] (October\n2\n\nLetter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to the Honorable Clifford Lindemann, Chairman, Jefferson County Board (November 13,\n2020), e-mailed to Mr. Lindemann at district8@jeffil.us. The letter was also e-mailed to Ms. Suzy Tate, County\nAdministrator, Jefferson County, at jeffcoboard@jeffil.us. Subsequent e-mail from Mr. Lindemann was either sent\nfrom an e-mail account labeled district8@jeffil.us or from what appears to be a personal e-mail account.\n\nOn November 18, 2020, Mr. Lindemann provided a written response on behalf of\nthe Board and copies of the October 26, 2020, meeting agenda and draft minutes, and a link to\nthe recording of the meeting. The response stated that the Board is comprised of thirteen\nmembers and briefly described the discussion that occurred between the Board members: \"Vice\nChairman Edwards spoke to me prior to the meeting in regards to the radio bids as well as\nspeaking to County Board Members Steve Draege, Adam Ortgiesen and James Malone. Mr.\nEdwards spoke to these members separately.\" 3 Later that day, an Assistant Attorney General in\nthe Public Access Bureau asked for a detailed description of the conversation that took place\nbetween Mr. Edwards and each of the Board members about the radio bids, and to provide the\ntime period during which the discussion took place. Mr. Lindemann replied: \"Mr. Edwards\ntalked to the individuals for a minute or two from 6:45 to about 7:00. He expressed his views on\nbuying the Novacom radios because they were a superior system. \"4 On November 20, 2020, the\nPublic Access Bureau forwarded a copy of the Board's response to Mr. Nowland. He replied on\nNovember 24, 2020, asserting that \"[a]ll of the board members listed were standing together in a\ngroup, around Mr. Edwards, discussing which provider of communications should be selected.\nNever did Mr. Edwards leave the group with an individual to discuss the matter in a true 'one-to­\none' setting. \" 5\nOn December 7, 2020, an Assistant Attorney General (AAG) in the Public Access\nBureau asked Mr. Lindemann to describe the back and forth discussion that transpired between\nMr. Edwards and the other Board members; he replied: \"I did not hear the conversations in\nquestion. I was busy preparing for the board meeting.\" 6 The AAG then asked Mr. Lindemann to\n\"[p ]lease ask the other members of the Board to describe in detail the back and forth\nconversation that transpired between Mr. Edwards and the other Board members prior to the\nmeeting regarding the radios or any other Board business.\" 7 (Emphasis in original.) Although\n'Letter from Clifford Lindemann, Chairman of the Jefferson County Board, to Edie Steinberg,\nSenior Assistant Attorney General, Public Access Bureau [Office of the Attorney General] (November 18, 2020).\n4\nE-mail from Clifford Lindemann's e-mail address labeled \"Suzy Tate <district8@jeffil.us>\" to\nEdie Steinberg [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General]\n(November I 9, 2020).\n\n'E-mail from Jeff Nowland to [Edie] Steinberg, [Senior Assistant Attorney General, Public Access\nBureau, Office of the Attorney General) (November 24, 2020).\n6\n\nE-mail from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Illinois Attorney General, to [Suzy] Tate and [Cliff] Lindeman (December 7, 2020); e-mail from Clifford\nLindemann to Edie Steinberg [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral) (December 7, 2020).\nE-mail from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\n\nhe did not state whether he asked other Board members about the discussion, on December 8,\n2020, Mr. Lindemann replied: \"Mr. Edwards stated to other board members that he felt we\nshould follow the Sheriffs suggestion to go with the better radio equipment even though they\ncost more. The board members agreed with Edwards because the radios were far better. In my\nopinion Edwards did not talk to more than one member at a time. \" 8\nThe AAG also asked Mr. Nowland to describe the conversation between Board\nmembers in more detail. He replied:\nMr. Edwards expressed his personal beliefs when he was\nspeaking to the mentioned board members that \"we need to vote\nfor the purchase of the Novacom radios, because that is the best\nequipment and that is what the sheriff wants\". As mentioned in a\nprevious email, this conversation was with members Wilkey,\nMalone and Ortgiesen who had been called over to the location of\nEdwards. They were not in the proximity of Edwards prior to being\ncalled over. They left their seats to join the conversation. Board\nmembers Lindemann and Williams were already sitting next to\nEdwards. I am unable to state what the other members said\nspecifically during the conversation, but I can say with I 00%\nassurance that Edwards was not the only active member in the\nconversation. There was discussion back and forth between them\nregarding the matter. 191\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" (Emphasis added.) 5 ILCS 120/1 (West 2018).\n\n'E-mail from Clifford Lindemann, to Edie Steinberg, [Senior Assistant Attorney General, Public\nAccess Bureau [Office of the Attorney General, State of Illinois) (December 8, 2020). On December 10, 2020, Mr.\n\nLindemann sent an additional e-mail to the AAG stating: \"Sorry for the late response. I must have deleted my reply.\nMr. Edwards shared his concern to other members about purchasing an inferior radio system for the Sheriffs office.\n\nHe told them each individually that he felt we should buy the best equipment for the sheriff. No other business was\ndiscussed.\" E-mail from Clifford Lindemann, Jefferson Co. Board Chairman, to Edie Steinberg, [Senior Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois) (December 10, 2020).\n9\n\nE-mail from Jeff Nowland to Edie Steinberg, [Senior Assistant Attorney General, Public Access\n\n\"(T]he [Open Meetings] Act is designed to prohibit secret deliberation and action\non business which properly should be discussed in a public forum due to its potential impact on\nthe public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191,202 (1980); see also Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (5th Dist. l 989) (\"The Open Meetings Act provides that public\nagencies exist to aid in the conduct of the people's business, and that the intent of the Act is to\nassure that agency actions be taken openly and that their deliberations be conducted openly.\").\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2018),as amended by Public Act\n101-640, effective June 12, 2020) provides that \"[a]ll meetings required by this Act to be public\nshall be held at specified times and places which are convenient and open to the public.\"\nFurther, section 2(a) of OMA (5 ILCS 120/2(a) (West 2018)),as amended by Public Acts 101031, effective June 28, 2019; 101-459, effective August 23, 2019) provides that \"(a]ll meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Therefore, the requirements of OMA to apply to any gathering of\nmembers of a public body that constitutes a \"meeting\" as defined by section 1.02 of OMA (5\nILCS 120/1.02 (West 2018)):\n\"Meeting\" means any gathering,whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\n. messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nIn determining whether a gathering of a majority of a quorum of the members of a\npublic body constituted a \"meeting\" subject to OMA,the Illinois Supreme Court has instructed\nthat \"[t]he Act is only addressed to meetings designed to discuss or reach an accord with regard\nto public business which properly should be deliberated or acted upon in an open forum.\" Barr,\n83 Ill. 2d at 210. In Barr, the Illinois Supreme Court held that nine public officials, a majority of\na fifteen-member city council,violated OMA by holding a private meeting during which they\ndiscussed a new ward map, the appointments of public officers for two separate agencies, and a\nhousing development-all items that were set to be discussed in a public meeting later that same\nnight. Barr, 83 Ill. 2d at 202, 211; see also Hinds County Republican Party v. Hinds County,\nMississippi, 432 F. Supp. 3d 684, 702 (S.D. Miss. 2020) (county supervisors who agreed during\nthe recess of a meeting to adopt a certain plan violated Mississippi's version of OMA (Miss.\n\nMr. Nowland alleges that a majority of a quorum of the Board gathered prior to\nthe October 26, 2020, Board meeting and discussed which communications provider should be\nselected for the purchase of equipment for the County Sheriff's Office. The Board consists of 13\nmembers, including the chairman; a quorum of the Board is seven members and a majority of a\nquorum of the Board is four members. Therefore, if four or more members of the Board\ngathered and engaged in contemporaneous, interactive, deliberative discussions of public\nbusiness, such a gathering would be a meeting to which the procedural safeguards and\nrequirements of OMA would apply.\nThere is no dispute that between 6:45 p.m. and 7:00 p.m., just prior to the Board's\nOctober 26, 2020, 7:00 p.m. public meeting, Mr. Randy Edwards, the Vice Chair of the Board,\ndiscussed public business of the Board, its upcoming vote of purchasing certain radio equipment\nfor county squad cars, with at least four other members of the Board. Indeed, during the October\n26, 2020, meeting, the Board voted \"to approve the bid from Novacom in the amount of\n$118,750 for 3 cites for the Sheriff's digital radios.\" 1 ° Further, while other members of the\nBoard may have participated in the discussion, there is no dispute that Mr. Edwards discussed\nthe purchase of the equipment prior to the Board meeting with four other members-Mr.\nLindemann, Mr. Draege, Mr. Malone, and Mr. Ortgiesen; those five members of the Board\nconstitute a majority of a quorum. Accordingly, a majority of a quorum of the Board discussed\npublic business immediately prior to the official Board meeting. Therefore, the determinative\nissue is whether the communication between the Board members was contemporaneous and\ninteractive.\nThe information provided to this office establishes that the discussion between\nMr. Edwards and the other members of the Board was interactive, i.e., reciprocally or mutually\nactive. 11 First, Mr. Nowland described the communication that took place as reciprocal, stating:\n\"I can say with I 00% assurance that Edwards was not the only active member in the\nconversation. There was discussion back and forth between them regarding the matter.\" 12\nSecond, Mr. Lindemann also described the communication that took place as reciprocally active,\nstating that Mr. Edwards told the \"other board members that he felt we should follow the\n10 Jefferson Counly Board, Full Board Meeting, October 26, 2020, Minutes 2, available at\nhttp://www.jeffersoncountyillinois.com/sites/default/files/Full%20Board%20l 0.26.2020.pdf.\n11\n\n\"1nteractive\" is defined, in relevant part, as \"mutually or reciprocall}' active.\" Merriam-Webster\nOnline Dictionary, https://www.merriam-webster.com/dictionary/interactive (last visited January 15, 2021). See,\ne.g., Valley Forge Insurance Co. v. Swiderski Electronics Inc., 223 Ill. 2d 352,366 (2006) (undefined statutory\nterms should be afforded their \"plain, ordinary, and popular meanings[,]\" which may be gleaned from dictionaries).\n12\n\nE-mail from Jeff Nowland to Edie Steinberg, [Senior Assistant Attorney General, Public Access\n\nSheriffs suggestion to go with the better radio equipment even thou:fh they cost more. The board\nmembers agreed with Edwards because the radios were far better.\" 1 Third, during the October\n26, 2020, meeting, Mr. Edwards described the pre-meeting communication that took place about\nthe radios to be purchased for use by the Sheriffs Office as mutually active. After Mr. Edwards\nspoke about the purchase of the radios during the meeting, Mr. Nowland asked Mr. Edwards:\n\"Was this part ofthe conversation you had when you called halfthe board members up here\nearlier that the rest ofus didn't hear?\" 14 After a bit ofback and forth conversation between Mr.\nEdwards and Mr. Nowland, where Mr. Edwards initially denied any discussion with other Board\nmembers prior to the meeting, Mr. Edwards acknowledged the discussion between the Board\nmembers, stating loudly: \"What I discuss between friends is my own business.\" 15 Because the\ndiscussion ofpublic business between a majority ofa quorum of the Board constituted\ninteractive communication, whether the pre-meeting gathering constituted a meeting under OMA\ndepends on whether the communications were also \"contemporaneous.\"\nThe information provided to this office establishes that the discussion between\nMr. Edwards and the other members ofthe Board was contemporaneous, i.e., happening within\nthe same time frame. 16 Mr. Nowland has consistently provided detailed information to this\noffice, which described Mr. Edwards discussing this matter with the group as a whole. The\nposition ofthe Board has been inconsistent. At the meeting Vice Chair Edwards first denied any\ndiscussion at all, then he acknowledged that there was a discussion \"between\" him and \"my\nfriends.\" The Board's initial response to this office, by Mr. Lindemann, stated that Mr. Edwards\nspoke to Mr. Lindemann about the purchase of the equipment and then separately with the other\nBoard members. Mr. Lindemann later informed this office that he did not hear the discussion\nbetween Mr. Edwards and the other Board members. Further, after being asked to contact the\nother Board members regarding the discussion, Mr. Lindemann, replied that it was his \"opinion\"\n13 E-mail from Clifford Lindemann, [Chairman, Jefferson County Board], to Edie Steinberg, Senior\nAssistant Attorney General, Public Access Bureau [Office of the Attorney General, State oflllinois] (December 8,\n2020).\n14 Jefferson County Board, Full Board.Meeting, October 26, 2020, Audio Recording at\napproximately 38:10-40:32, available at http://jeffil­\nus.kfu.ghs.mybluehost.me/meetings/2020/0ct%20Full%20Bd%20 I of2%20 I 0.26.2020.mp3.\n\n\"Jefferson County Board, Full Board Meeting, October 26, 2020, Audio Recording at\napproximately 38: 10-40:32, available at http://jeffil­\nus.kfu.ghs.mybluehost.me/meetings/2020/0ct%20Full%20Bd%20 I of2%20 I 0.26.2020.mp3.\n16\n\nConternporaneous\" is defined as \"existing, occurring, or originating during the same time.\"\nMerriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/contemporaneous (last visited\n\nthat Mr. Edwards only talked to \"one member at a time.\" 17 Based on the changing and cursory\ndescription given by the Board, this office accepts Mr. Nowland's consistent and detailed\ndescription of the events, in which he informed the Public Access Bureau that Mr. Edwards\ndiscussed the business of the Board with the other Board members at the same time as they\ngathered around him in a group. Accordingly, the discussion regarding which bid to accept for\nthe radio equipment immediately prior to the official Board meeting constituted a\ncontemporaneous, interactive, deliberative discussion of public business by a majority of a\nquorum of the Board. Therefore, this gathering constituted a meeting under the definition of that\nterm in section 1.02 of OMA.\nAs in Barr, Board members thwarted the intent of OMA by informally discussing\npublic business prior to the official meeting. Not only did that discussion constitute a secret\nmeeting, it violated the letter of the law requiring public body meetings to be open unless falling\nwithin an exception set forth in section 2(c) of OMA (5 ILCS 120/2 (West 2018), as amended by\nPublic Acts 101-031, effective June 28, 2019; 101-459, effective August 23, 2019). The Board\ndid not assert any such exception and none applies here. Under these circumstances, this office\nconcludes that the informal discussion before the October 26, 2020, meeting commenced was an\nimproper secret meeting held in violation of the requirement, in sections 2(a) and 2.01 of OMA,\nthat meetings of public bodies be open to the public.\nThis office notes that even if Mr. Edwards held the discussion with each of the\nBoard members separately, during the fifteen minutes immediately prior to the official meeting,\nthe communications between a majority of a quorum of the Board still would have constituted a\n\"meeting.\" As the Illinois Supreme Court noted in Barr, '\"[t]here is rarely any purpose to a non­\npublic pre-meeting conference except to conduct some part of the decisional process behind\nclosed doors.'\" Barr, 83 Ill. 2d at 200, quoting Sacramento Newspaper Guild, Local 92 v.\nSacramento County Board of Supervisors, 263 Cal. App. 2d 41, 50 (Cal. App. 1968). In light of\nthe definition of \"contemporaneous\" as well as OMA's broad definition of a meeting and OMA's\npurpose of assuring that public bodies deliberate openly, \"contemporaneous communications\" is\nnot limited to simultaneous or real time communications, but includes communications which\noccur in the same general time frame. 18 Otherwise, a Board could evade the requirement to\n17\nE-mail from Clifford Lindemann, Jefferson Co. Board Chairman, to Edie Steinberg, [Senior\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois] (December 10,\n2020).\n18\n\nWhile the Illinois Appellate Court has not yet been called upon to decide how close in time\ncommunications must be in order to be \"contemporaneous,\" for purposes of OMA, that term must be construed as\npart of OMA as a whole. See Jackson v. Board ofElection Commissioners, 2012 IL 111928, 148, 975 N.E. 2d 583,\n596 (2012) (a \"statute should be evaluated as a whole, with each provision construed in connection with every other\nsection.\"). Pursuant to section 1.02 of OMA, a meeting includes in person meetings as well as electronic\ncommunication, such as e-mail or text, which by their very nature cannot occur at exactly the same time but may\n\ndeliberate openly by rotating people in and out of secret discussions. Accordingly, even if Mr.\nEdwards discussed the purchase of the radio equipment with the four other Board members\nseparately within the fifteen-minute time period immediately preceding the official Board\nmeeting, where a vote on that subject was scheduled, those discussions would constitute\ncontemporaneous interactive communications within the meaning of OMA, and be in violation\nof sections 2.01 on 2(a) of OMA.\nTo remedy the Board's violation of sections 2.01 and 2(a) of OMA, this office\nrequests the Board to take appropriate action to comply with this opinion by refraining from\nengaging in secret deliberation, whether in person, by telephone, or electronically, in the future.\nThe Public Access Counselor has determined that resolution of this matter does not require the\nissuance of a binding opinion. This file is closed. If you have any questions, you may contact\nme at (312) 814-5201 or at the Chicago address on the bottom of the first page of this letter.\nVery truly yours,\n\n.\n\n-\n\n-Y\n_\nSenior Assistant Attorney G�;c:;!;!a:.l ____\nPublic Access Bureau\n65448 o 201 improper 2a improper co\n\noccur within the same general time frame. See Tepfer v. Deerfield Savings & loan Ass'n, 118 Ill. App. 3d 77, 80-82\n\n(I st Dist. 1983) (in construing the meaning of contemporaneous instruments, the court held that contemporaneous\nmeans proximate in lime as to grow out of the transaction)."}
{"id":1346,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-03-16","case_number":null,"request_numbers":["65871","65961","66133"],"title":"City of Urbana City Council violated OMA by muting public comment","filename":"65871 65961 66133, issued March 16, 2021.pdf","rel_path":null,"word_count":4875,"summary":"The Public Access Counselor investigated complaints that the Urbana City Council violated the Open Meetings Act by muting members of the public during public comment periods at its November 2020 meetings. The PAC determined that the Council's actions were impermissible as the speakers were not causing a disturbance.","plain_summary":"Members of the public complained that the Urbana City Council unfairly muted them while they were trying to speak during public comment sessions at two meetings. The Illinois Attorney General's Public Access Bureau reviewed the recordings and determined that the Council violated the Open Meetings Act by impermissibly restricting public comment. The determination does not include any advice or directive to the Council beyond the finding that a violation occurred.","holding":"The City of Urbana City Council violated section 2.06(g) of the Open Meetings Act by impermissibly muting members of the public during its November 9 and November 16, 2020, meetings.","legal_question":"Whether the City of Urbana City Council violated section 2.06(g) of the Open Meetings Act by muting members of the public during public comment periods.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Urbana City Council","requesting_party":"Members of the public","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The restriction of public comment and the muting of speakers during City Council meetings.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/65871 65961 66133, issued March 16, 2021.pdf","sha256":"e3a67b9adfbd2b2a0d49b70d853551cd94ab614e511378a335ab7bc1a65a53b9","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","city council","freedom of speech","meeting decorum"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 16, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable\n\nDiane\n\nMarlin\n\nMr. James L. Simon\n\nMayor\n\nCity Attorney\n\nCity of Urbana\nUrbana City Building\n\nLegal Division\n\n400 South Vine Street\n\n400 South Vine Street\n\n[street address redacted for site publication -- see original PDF]\nUrbana, Illinois 61801\n\ndwmarlin@urbanaillinois. us\n\njIsimon@urbanaillinois.us\n\nCity of Urbana\n\nVia electronic mail\nMr. David B. Wesner\nEvans, Froehlich, Beth &\n\nChamley\n\n44 Main Street, Third Floor\nChampaign, Illinois 61820\ndwesner@efbclaw. com\n\nRE: OMA Request for Review —2020 PAC 65871\n2020 PAC 65961\n2020 PAC 66133\n\nDear\n\nMs. Marlin, Mr. Simon and Mr. Wesner:\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018).\n\nFor the reasons stated below, the Public Access\n\nBureau concludes that the City of Urbana ( City) City Council ( Council) violated OMA at its\n\nNovember 9, 2020, and November 16, 2020, meetings by impermissibly restricting members of\nthe public from addressing the Council.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West\n\nRandolph\n\n601 South University\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nIllinois\n\n60601 • (\n\n312) 814- 3000 •\n\nTTY: ( 800)\n\n964- 3013 •\n\nFax: ( 312) 814- 3806\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fet al.\nMarch 16, 2021\nPage 2\n\nBACKGROUND\n\n2020 PAC 65871 and 2020 PAC 66133\n\nOn November 30, 2020, and December 17, 2020, the Public Access Bureau\n\nreceived separate Requests for Review from members of the public (\nand\nwho alleged that the Council violated OMA at its November 16, 2020, meeting,\nwhich was held using video conferencing. Both Requests for Review allege that the Council\n\ninterrupted\n\nas she commented, told her that she was offering opinions rather than\n\nfacts, and ultimately muted her. In her Request for Review,\n\nalso alleged that the\n\nCouncil' s rules for public comment at virtual meetings improperly impose content -based\n\nrestrictions on public comment. This office construed both Requests for Review as alleging a\nviolation of section 2. 06( g) of OMA ( 5 ILCS 120/ 2. 06( g) ( West 2018)).\nOn December 2, 2020, this office sent a copy\nthe Council and asked it to respond to her allegations.\n\nto address whether it objected to\n\nRequest for Review to\n\nIn particular, this office asked the Council\n\nexpression of opinions and subsequently muted her\n\nto prevent her from completing her public comment. This office also asked the Council to\n\nprovide copies of its Public Input Guidelines, the agenda, meeting minutes ( draft from, if\nnecessary) and the verbatim recording of the November 16, 2020, meeting.\n\nThe Council\n\nresponded on December 7, 2020.\n\nThis office forwarded\n\nRequest for Review to the Council on\n\nDecember 22, 2020, and asked it to respond to her similar allegations. To the extent the issues\nraised and the records requested in these two Requests for Review were identical or overlapped,\n\nthis office permitted the Council in its response to\nincorporate by reference to its response to\n\nRequest for Review to\nRequest for Review. On December 28,\n\n2020, the Council responded by incorporating by reference its earlier response and providing\nadditional\n\narguments.\n\nOn December 14, 2020, and on December 31, 2020, this office forwarded copies\n\nof the Council' s responses to\n\nand\n\nrespectively; neither replied.\n\n2020 PAC 65961\n\nOn December 8, 2020,\nalso submitted a Request for Review alleging\nthat the Council violated section 2. 06( g) of OMA at its November 9, 2020, meeting by using\ncontent - based restrictions to limit her comment and that of another speaker. Specifically,\nalleged that the Council muted her after one minute of speaking because she criticized a\n\ndecision made by the Mayor, and that the Council also muted another speaker for mentioning the\nnames\n\nof\n\ncity\n\nemployees.\n\n\fMarch 16, 2021\nPage 3\n\nOn December 16, 2020, this office sent a copy of the Request for Review to the\n\nCouncil and asked it to respond to\nallegations and to provide copies of the Council' s\nPublic Input Guidelines, the agenda, meeting minutes ( draft from, if necessary) and the verbatim\nrecording of the November 9, 2020, meeting. To the extent the issues and/ or records were\n\nidentical or overlapped, this office provided the Council with an opportunity to incorporate by\nreference to its previous response to 2020 PAC 65871.\nOn December 23, 2020, the Council provided a written response.\n\n31, 2020, this office forwarded a copy of the Council' s response to\n\nOn December\n\nshe did not reply.\n\nWith this office' s agreement, the Council furnished the requested meeting materials on January\n20, 2021.\n\nBecause these three Requests for Review raise similar allegations regarding the\nsame public body and public comment rules, this office has consolidated them for\ndetermination.'\n\nDETERMINATION\n\nSection 2.06( g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" Under the plain language of section 2. 06( g), a public body must establish and record\nrules and may restrict public comment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 009, issued September 2, 2014, at 7.\nThe Council' s rules governing public comment provide, in pertinent part:\nSec. 2- 5. — Electronic Virtual public meetings.\n\nb) Any member of the public who seeks to address the members\nof a public body at any public meeting conducted on a video and/ or\naudio electronic platform will be permitted to provide input on any\n\nmatter listed on the agenda or on any other matter of public\nconcern, subject to the following provisions:\n1) Verbal public comments.\n\nIn its response, the City clarified that the November 16, 2020, meeting was a meeting of the\nCouncil' s Committee of the Whole. The City confirmed that the Council and the Council' s Committee of the Whole\n\nare the same entity comprised of the same members. Letter from James L. Simon, City Attorney, to Grace Angelos,\nAssistant Attorney General, Public Access Bureau ( December 7, 2020) at 1. The Council's public comment rules\nalso apply when the Council meets as the Committee of the Whole. To simplify matters, this determination will\nrefer\n\nto\n\nboth meetings\n\nas\n\nmeetings\n\nof the\n\nCouncil.\n\n\fet al.\nMarch 16, 2021\nPage 4\n\nc. Public comment shall be limited to no more than four\n4) minutes per person. The public input portion of the\n\nmeeting shall total no more than one ( 1) hour unless\notherwise shortened or extended by majority vote of the\n\npublic body members present. The presiding officer, the\ncity clerk, or their designee, shall monitor each speaker' s\nuse of time and shall notify the speaker when the allotted\ntime has expired.\n\nSince public comment is the time\n\nwhen the public body members listen to the public, all\npublic comments should be addressed to the public body\nas a whole. * * *\n\nd. In order to maintain reasonable decorum at a\n\nmeeting, the presiding officer of the meeting shall have\nthe authority to provide a verbal warning to a speaker\n\nwho uses abusive, harassing, threatening, or defamatory\nlanguage, or who engages in disorderly conduct that\ndisrupts, disturbs, or otherwise impedes the orderly\nconduct of a meeting. If the speaker refuses to cease\n\nsuch remarks or conduct after being warned by the\npresiding officer, the presiding officer shall have the\nauthority to mute the speaker' s microphone and/ or\n\nvideo presence at the meeting. The speaker may send\nthe remainder of their remarks via email to the public\n\nbody.\n2) Written public comments\n\nb. Specific instructions for verbal or written public\ncomments shall be posted with the public notice for\n\neach meeting. 121\nThe Council also provided a copy of its Public Input Guidelines, which was posted with the\nagenda for both the November 9, 2020, and November 16, 2020, meetings. Those guidelines\ncontain\n\ndefinitions\n\nof \"abusive,\" \"\n\nharassing,\" \" threatening\" and \" defamatory\" language, and\n\nUrbana City Code, ch. 2, § 2- 5 ( adopted October 12, 2020).\n\n\fet al.\nMarch\n\n16, 2021\n\nPage 5\n\nreiterate the rules governing public comment in the City Code. The Public Input Guidelines in\nrelevant\n\npart,\n\nstates:\n\nVerbal\n\nInput\n\nProtocol for Public Input is one of respect for the process, and\nrespect for others. Ridicule, obscene or profane language, lack of\nrespect for others, and personal attacks are not acceptable\nbehavior. Public Input shall not be used to air personal grievances.\n\nSpeakers should address all comments to the public body as a\n\nwhole and not to individual members or City staff.\n\nThe presiding officer of the meeting shall have the authority\nto provide a verbal warning to a speaker who uses abusive,\n\nharassing, threatening, or defamatory language, or who engages in\ndisorderly conduct that disrupts, disturbs, or otherwise impedes the\norderly conduct of a meeting. If the speaker refuses to cease such\n\nremarks or conduct after being warned by the presiding officer, the\npresiding officer shall have the authority to mute the speaker' s\nmicrophone and/ or video presence at the meeting.\n\nNovember 16, 2020, Meeting\n\nBoth\nand\nallege that\nwas improperly muted and\nnot allowed to finish her public comment because she was voicing her opinions regarding the\nCity Administrator' s handling of the civilian police review process. This office has reviewed the\nverbatim recording of the November 16, 2020, meeting, which shows that\nspoke for\ntwo minutes and 40 seconds before a Council member interrupted her to suggest she was \" out of\n\norder\" without specifying which part of the public comment rule\nhad violated. 3 Prior\nto the interruption,\nhad asked, rhetorically, whether Ms. Carol Mitten, the City\nAdministrator, had lied or tried to cover up the real reason a hearing had been cancelled. The\n\nCouncil advised\n\nto be more respectful, and allowed her to continue.\n\nthen\n\ndiscussed a proposal to amend an ordinance, and commented on Ms. Mitten' s \" main goal\" in\n\nsuggesting the amendments. The Council then interrupted her again and directed her to try to\nstick to facts.\" When\nresponded that she was stating facts, and then described\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\nhttps:// www. city. urbana. i I. us/ Scripts/ Council V ideo/ V ideo. asp? v=/_ Video/ City_ Counci U2020/ 20201109/ 03._ Publ is\nInput. mp4\n\n\fet al.\nMarch 16, 2021\nPage 6\n\nsomething as a \" terrible move,\" another Council member interrupted her to assert that those were\n\nopinions. 4 After. that interruption, the Council muted\nyet\n\neven though her time had not\n\nexpired.\n\nIn its response to this office, the Council argued that it interrupted\n\nand\n\nultimately muted her microphone because her comments were an \" abusive personal attack on\n\nCarol Mitten,\" the City Administrator, and that § 2- 05( b)( 1) d of the City' s Code gave the Council\n\nthe authority to restrict\n\ncomments. 5 The Council further asserted that \"\n\nwas allowed to raise her concerns and criticisms about how the Council has handled a number of\n\nmatters so long as she refrained from abusive personal attacks on individuals by name. i6 The\nCouncil furnished for this office' s review a transcript of\ncomments and underlined\nfor emphasis the particular parts of the comment that it determined were an abusive personal\n\nattack. According to the Council' s response,\n\nviolated the Council' s prohibition on\n\nabusive language when she stated:\nCan we trust the Urbana Police Department under Chief Seraphin' s\n\nleadership[?] • * * *\n\nChief Seraphin should immediately issue a\nformal press release acknowledging the misconduct[.] * * *\n\nCarol Mitten made some rather bold claims about the complaints\n\nand appeals costing 42, 000 and 122, 000. Carol Mitten then\nproceeded to say, quote, unquote, we do not track the number of\nhours that we spend. Gosh, if I were to claim in public, that\n\nsomething costs $ 100, 000, like what Carol Mitten did, I had better\n\nbring my receipts. Regarding Carol Mitten' s CPRB presentation\non October 26th, I' m still curious why Mayor Marlin told the\n\npublic that the scheduled appeal hearing was canceled due to the\nappellant and CPRB members having scheduling problems. Did\nCarol Mitten lie to Mayor Marlin about the actual reason?\n\nDid\n\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\n\nhttps:// www. city.urbana. i I. us/ Scripts/ Council V ideo/ Video. asp? v=/_ V ideo/ City_ Council/ 2020/ 20201109/ 03._ Publ is\nInput. mp4\n\n5Letter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\nAccess Bureau ( December 7, 2020) at 5.\n\nLetter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\nAccess Bureau ( December 7, 2020) at 5.\n\n\fet al.\nMarch 16, 2021\nPage 7\n\nCarol Mitten try to cover up the reason that the hearing was\ncanceled?\n\nBecause Mitten herself did not follow procedures.\n\nIt' s concerning that Carol Mitten believes she' s exempt from the\n\nprocedures mandated by CPRB ordinance. f1\nAs the Council deemed\nabusive\"\n\ncomment as \" abusive\" and its rules prohibit\n\ncomments, this Request for Review presents the question of whether the Council\n\napplied section 2- 05( b)( 1) d of the City' s Code and the definition of \"abusive\" in the Public Input\nGuidelines to impermissibly restrict\n\nstatutory right to address public officials under\n\nsection 2. 06( g) of OMA. A public body has inherent authority to conduct a meeting in an\nefficient and orderly manner. See Ill. Att' y Pub. Acc. Op. No. 19- 002, issued January 9, 2019, at\n6- 7. Although OMA does not specify the nature of rules a public body may permissibly adopt, a\nboard may adopt rules to maintain order and decorum at public meetings to ensure that meetings\nare conducted efficiently. See Timmon v. Wood, 633 F. Supp. 2d 453, 465 ( W. D. Mich. 2008);\nsee also I11. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5 ( a public body may promulgate reasonable\ntime, place and manner\" rules aimed at preserving order and decorum). However, such rules\nmust tend to accommodate, rather than to unreasonably restrict, the right to address public\n\nofficials. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, at 923- 25 ( N. D.\nIll. 2009).\n\nAlthough a public body may enforce rules regarding decorum, content - based\nrestrictions must be narrowly construed. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F.\nSupp. 2d 912, 922- 23 ( N. D. 111. 2009) (\" Any content -based restrictions, promulgated with\n\nreference to the content of the speech being restricted, are subject to strict scrutiny, and must\nserve\n\na\n\ncompelling state interest\n\nand\n\nbe narrowly\n\ndrawn to achieve\n\nthat purpose.\").\n\nRules that\n\ngovern the decorum of a meeting are permitted only if they are directed to conduct which is\nactually disturbing or impeding a meeting.\"\n\nAcosta v. City of Costa Mesa, 718 F. 3d 800, 811\n\n9th Cir. 2013) ( ordinance unconstitutional because it provided for the removal of individuals for\n\nproscribed types of remarks even if those remarks did not disrupt a meeting); Norse v. City of\nSanta Cruz, 629 F. 3d 966, 979 ( 9th Cir. 2010) ( Kozinski, A., concurring) (\" Even in a limited\n\npublic forum like a city council meeting, the First Amendment tightly constrains the\nTranscript of\nCity Attorney, to Grace Angelos,\n\nAssistant\n\nPublic Input — 2020- 11- 16, attached to Letter from James L. Simon,\nAttorney General, Public Access Bureau ( December 7, 2020).\n\n\fet al.\nMarch 16, 2021\nPage 8\n\ngovernment'\n\ns power;\n\nspeakers\n\nmay be removed\n\nonly if they are actually disruptive.\"). That is not\n\nto suggest, however, that a public body must wait for a speaker' s comments to cause an actual\noutburst before restricting them:\nT] he nature of a Council meeting means that a speaker can\nbecome \" disruptive\" in ways that would not meet the test of actual\n\nbreach of the peace, [ citation], or of \"fighting words\" likely to\nprovoke immediate combat. [ Citation.) A speaker may disrupt a\n\nCouncil meeting by speaking too long, by being unduly repetitious,\nor by extended discussion of irrelevancies. The meeting is\n\ndisrupted because the Council is prevented from accomplishing its\nbusiness in a reasonably efficient manner. Indeed, such conduct\nmay interfere with the rights of other speakers.\nNorwalk, 900 F. 2d 1421,\n\nWhite v. City of\n\n1425 ( 9th Cir. 1990).\n\nAt the same time, comments during a city council meeting which pertain to matters of public\nconcern are protected by the first amendment to the United States Constitution even if the\nspeaker' s \"\n\nmotive\n\nin commenting * * *\n\ncould be an insensitive, mean spirited, personal attack[.]\"\n\nGault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 ( W. D. Mich. 1999).\n\nBecause it would be\n\nillogical to construe OMA as permitting a public body to impose unconstitutional restrictions on\nmembers of the public addressing public officials, the Public Access Bureau has previously\n\ndetermined that section 2. 06( g) of OMA does not permit a public body to apply public comment\nrules that are susceptible to overbroad and arbitrary application to comments that do not actually\n\ndisrupt public meetings. See Ill. Att' y Gen. PAC Req. Rev, Ltr. 39069, issued April 5, 2016, at\n3- 4 ( finding public body violated OMA by imposing rule that prohibited \" personal attacks\nagainst others\" or \" rude or slanderous remarks\").\n\nThe Council's Public Input Guidelines define \" abusive\" as \" harsh, violent,\n\nprofane, or derogatory language which would demean the dignity of an individual or which is\nintended to humiliate, mock, insult or belittle an individual.\" The Council has argued that its rule\n\nprohibiting abusive language and this definition are \" lawful restrictions on ' manner' of speech\"\nrather than the content of speech, relying on Milestone v. City of Monroe, Wisconsin, 665 F. 3d\n\n774 ( 7th Cir. 2011). 8 In Milestone, the director of a city' s senior center enforced its Code of\nConduct, which prohibited, among other things, \" abusive, vulgar or demeaning language,\" to ban\nMs. Milestone from the center. Ms. Milestone had a history of disturbances at the senior center;\nduring the last incident before her expulsion, she loudly complained about a card game to which\nshe was a party, engaged in a \" heated discussion\" with the center' s director, and then wagged her\nfinger in the director' s face and threatened to sue her. Milestone, 665 F. 3d at 779. After the\n\ncenter notified her that she had violated the center' s Code of Conduct for, among other things,\nLetter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\nAccess\n\nBureau ( December\n\n7, 2020) at 5.\n\n\fMarch 16, 2021\nPage 9\n\nusing abusive language, she brought suit, alleging that the code was facially unconstitutional\nbecause it placed viewpoint -based regulations on her speech in violation of the First Amendment\nto the United States Constitution.\n\nThe court found the portion of the Code of Conduct that\n\nprohibited \" abusive, vulgar or demeaning language\" was content neutral to the extent that it was\nused to serve a purpose\n\nunrelated to the content of the regulated\n\nspeech:\n\nThe Code' s mission statement and objectives make it clear that the\n\npurpose of the Code is completely unrelated to the content of any\nspeaker' s message. Rather than focusing on what the Center' s\npatrons say, the Code focuses on the manner in which they say it.\n\nNothing in the Code provides a basis for punishing patrons for\ndisagreeing with other visitors or the Center staff (emphasis in\noriginal).\n\nMilestone, 665 F. 3d at 783.\n\nFor those reasons, the court rejected Ms. Milestone' s \" facial challenge\" to the Code of Conduct,\n\nupholding it as a \" content -neutral and reasonable time, place, or manner regulation,\" and\naffirmed the holding that the city had not violated Ms. Milestone' s First Amendment rights.\nMilestone, 665 F. 3d at 784.\n\nHere, it is not necessary for this office to find that the Council' s public comment\nrules are invalid on their face to determine that the Council violated section 2. 06( g) of OMA\n\nwhen it applied those rules to mute\n\non November 16, 2020. Regardless of whether\n\nthe Council' s prohibition on abusive language during public comment could be permissible in\nsome circumstances, this office must determine whether the Council improperly applied that rule\nto the comments at issue in this matter.\n\nAs noted above, the Council characterized\n\ncomment as an \" abusive\n\npersonal attack\" on the City Administrator, and provided this office an underlined transcript\nidentifying the allegedly abusive parts of the comment. The Council' s response to this office\ndoes not contain any description of the manner in which\ndelivered her comments, or\n\ndescribe any disruption that occurred at the meeting while\ncomments.\nmeeting,\n\nwas delivering her\n\nBased on this office' s review of the verbatim recording of the November 16, 2020,\ncomments did not create a disturbance or otherwise interfere with the\n\nefficiency of the Council' s meeting. The recording indicates that\n\nread a statement in\n\na calm manner and, even when interrupted by members of the Council, she calmly attempted to\ncontinue with her statement. In reviewing the transcript of\ncomments along with\nthe Council' s definition of \"abusive,\" this office notes that the comments did not contain apparent\nviolent or profane language. Therefore, it appears the Council must have determined\nbecause they contained \" harsh * * *\n\nor derogatory language\nwhich would demean the dignity of an individual or which is intended to humiliate, mock, insult\ncomments\n\nor\n\nbelittle\n\nan\n\nwere\n\nindividual.\"\n\nabusive\n\n\fet al.\nMarch 16, 2021\nPage 10\n\nHowever, our review of the verbatim recording indicates that\nstatement contained her opinions that were critical of the manner in which Ms. Mitten, a public\n\nemployee, carried out her official duties. This is a matter of public concern protected by the first\n\namendment. This office has repeatedly determined that \"[ w] hen criticism involves the conduct\nof present or former public officials in the performance of their public duties, significant latitude\n\nmust be allowed.\" I11. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3\nrestricting comment criticizing a public official by name impermissible); I11. Att'y Gen. PAC\nReq. Rev. Ltr. 60824, issued July 10, 2018, at 4- 6 ( restricting comment criticizing elected\nofficials by name in connection with public matters impermissible); Ill. Att' y Gen. PAC Req.\nRev. Ltr. 51665, issued February 5, 2019, at 5- 6 ( restricting comment referencing a particular\npublic official in connection with public business impermissible). Based on the available\n\ninformation, the Council applied its public comment rules to mute\n\nbecause she\n\ncriticized, by name, a public employee for the manner in which she carried out her public duties.\nUnlike the plaintiff in Milestone, who obviously created a disturbance at a senior citizen center\n\nby having a \" heated discussion\" and wagging her finger in the face of the center' s director while\nthreatening to sue her, the Council applied its prohibition on \" abusive language\" to comments\nthat were critical but delivered in an apparently calm manner. These comments did not appear to\n\ndisrupt the meeting. 9 Although the Milestone case shows that a rule prohibiting abusive\ncomments can be applied permissibly to regulate the manner of speech in a content - neutral way,\nthe available information indicates that here, the Council applied its rule to prohibit\n\nfrom completing her comment because of the content of that comment.\nAccordingly, this office concludes that the Council violated section 2. 06( g) of\nOMA by restricting\nstatement during its November 16, 2020, meeting.\nNovember 9, 2020, Meeting\nIn 2020 PAC 65961,\nalleged that she and another speaker,\nwere interrupted and muted for criticizing and naming city employees and\n\nofficials in their statements during the public comment session of the Council' s November 9,\n2020, meeting. In its response, the Council defended its established and recorded rules for public\ncomment as being \" lawful and reasonable government regulations as to the time, place and\n\nmanner of public comment. i10 The Council contended that it properly followed its regulations to\n9Similarly, the Council' s reliance on Vega v. Chicago Board of Education, 338 F. Supp. 3d 806\nN. D. 111. 2018), is unconvincing. That case is factually and legally distinguishable from these matters as it involved\nthe application of a facially content -neutral rule against an individual who disrupted a meeting by rising from her\nchair, rushing toward the dais where school board members were sitting, shaking her fist, and yelling \" BOOOOO!\nCOWARD! COWARD!\" Vega, 338 F. Supp. 3d at 810- 11.\n10Letter from Evans, Froehlich, Beth & Chamley by David Wesner to Grace Angelos, Assistant\nAttorney General,\n\nPublic Access\n\nBureau ( December\n\n23, 2020) at 5.\n\n\fet al.\nMarch 16, 2021\nPage 11\n\ncall out of order and mute both\n\nand\n\nIt claimed that\n\ncomments were directed at specific persons and were abusive, harassing, and defamatory, as\nthose terms are defined in the Public Input Guidelines,\" and that\n\ncomments \" were\n\nalso directed at specific persons and were abusive, harassing, and defamatory, as those terms are\ndefined in the Public Input Guidelines. ill The Council did not provide a transcript specifically\n\nidentifying the parts of those comments that the City determined were abusive, harassing, and\n\ndefamatory.' 2\nThis office' s review of the verbatim recording of the November 9, 2020, meeting\nindicates that in their statements, both\nhandling of her public duties. After\n\nand\ncriticized Mayor Marlin' s\nhad spoken for approximately one minute,\n\nMayor Marlin stated that it was not an appropriate time to discuss a past decision, a former\n\nCouncil member, or her decisions.\n\nWhen\n\nsame topic, Mayor Marlin muted\n\nindicated she intended to continue on the\n\nand prohibited her from completing her statement.\n\nspoke next, raising questions about prior and current appointments to the City' s\n\nCivilian Police Review Board. Immediately before he was muted,\n\nalleged that an\n\nindividual affiliated with the Civilian Police Review Board may be following a path of\n\ndishonesty. In muting and prohibiting\n\nfrom completing his statement, Mayor Marlin\n\nstated that he was not allowed to talk about former City employees, and must stick to topics or\nissues on the agenda or general matters. She further stated that\nattacking\n\nor\n\nbullying\n\nagainst\n\npeople\n\nwho\n\nwork\n\ncomments were\n\nfor the City or against former\n\nemployees.\"\n\nwas directed to complete his comments by sending an email. 13\nAs discussed previously, this office has repeatedly determined that \"[ w] hen\ncriticism involves the conduct of present or former public officials in the performance of their\n\npublic duties, significant latitude must be allowed.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 39069,\nissued April 5, 2016, at 3 ( restricting comment criticizing a public official by name\nimpermissible).\n\nDespite their critical comments, both\n\nand\n\nremained\n\nLetter from Evans, Froehlich, Beth & Chamley by David Wesner to Grace Angelos, Assistant\nAttorney General, Public Access Bureau ( December 23, 2020) at 5.\n\n1\" The Council' s Public Input Guidelines define \" harassing\" as \" to annoy or bother someone in a\nconstant or repeated way, to make repeated attacks on another person,\" and define \" defamatory\" as \" a statement or\ncommunication that tends to harm a person' s reputation by subjecting the person to public contempt, disgrace, or\nridicule, or by adversely affecting the person' s business. A statement that is likely to lower that person in the\nestimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred,\ncontempt, ridicule, fear, or dislike.\"\n\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\nhttps:// www. city. urbana. i I. us/ Scripts/ CouncilV ideo/ V ideo. asp? v=/_ V ideo/ City_ Council/ 2020/ 20201109/ 03._ Public\nInput. mp4\n\n\fet al.\nMarch 16, 2021\nPage\n\n12\n\ncalm in addressing Mayor Marlin and the Council and neither speaker caused a disturbance.\n\nUnlike the circumstances described in Milestone, there is no evidence that it was necessary to\nmute\nor\nin order to maintain decorum. Accordingly, for the same\nreasons as stated above, this office concludes that the Council violated section 2. 06( g) of OMA\nby muting\nand\nat its November 9, 2020, meeting.\nIn accordance with the conclusions of this letter, this office requests that the\n\nCouncil instruct its presiding officers to refrain at its future meetings from applying its public\n\ncomment rules imposing content -based restrictions to comments that do not disrupt its meetings\nor impede the Council from conducting orderly meetings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at ( 312)\n814- 4467 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\n\nAssistant Attorney General\nPublic Access Bureau\n65871 65961 66133\n\no\n\n206g improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Muting speakers during public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65871/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMarch 16, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable\n\nDiane\n\nMarlin\n\nMr. James L. Simon\n\nMayor\n\nCity Attorney\n\nCity of Urbana\nUrbana City Building\n\nLegal Division\n\n400 South Vine Street\n\n400 South Vine Street\n\n[street address redacted for site publication -- see original PDF]\nUrbana, Illinois 61801\n\ndwmarlin@urbanaillinois. us\n\njIsimon@urbanaillinois.us\n\nCity of Urbana\n\nVia electronic mail\nMr. David B. Wesner\nEvans, Froehlich, Beth &\n\nChamley\n\n44 Main Street, Third Floor\nChampaign, Illinois 61820\ndwesner@efbclaw. com\n\nRE: OMA Request for Review —2020 PAC 65871\n2020 PAC 65961\n2020 PAC 66133\n\nDear\n\nMs. Marlin, Mr. Simon and Mr. Wesner:\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/ 3. 5(e) (West 2018).\n\nFor the reasons stated below, the Public Access\n\nBureau concludes that the City of Urbana (City) City Council (Council) violated OMA at its\n\nNovember 9, 2020, and November 16, 2020, meetings by impermissibly restricting members of\nthe public from addressing the Council.\n\nBACKGROUND\n\n2020 PAC 65871 and 2020 PAC 66133\n\nOn November 30, 2020, and December 17, 2020, the Public Access Bureau\n\nreceived separate Requests for Review from members of the public (and\nwho alleged that the Council violated OMA at its November 16, 2020, meeting,\nwhich was held using video conferencing. Both Requests for Review allege that the Council\n\ninterrupted\n\nas she commented, told her that she was offering opinions rather than\n\nfacts, and ultimately muted her. In her Request for Review,\n\nalso alleged that the\n\nCouncil's rules for public comment at virtual meetings improperly impose content -based\n\nrestrictions on public comment. This office construed both Requests for Review as alleging a\nviolation of section 2. 06(g) of OMA (5 ILCS 120/ 2. 06(g) (West 2018)).\nOn December 2, 2020, this office sent a copy\nthe Council and asked it to respond to her allegations.\n\nto address whether it objected to\n\nRequest for Review to\n\nIn particular, this office asked the Council\n\nexpression of opinions and subsequently muted her\n\nto prevent her from completing her public comment. This office also asked the Council to\n\nprovide copies of its Public Input Guidelines, the agenda, meeting minutes (draft from, if\nnecessary) and the verbatim recording of the November 16, 2020, meeting.\n\nThe Council\n\nresponded on December 7, 2020.\n\nThis office forwarded\n\nRequest for Review to the Council on\n\nDecember 22, 2020, and asked it to respond to her similar allegations. To the extent the issues\nraised and the records requested in these two Requests for Review were identical or overlapped,\n\nthis office permitted the Council in its response to\nincorporate by reference to its response to\n\nRequest for Review to\nRequest for Review. On December 28,\n\n2020, the Council responded by incorporating by reference its earlier response and providing\nadditional\n\narguments.\n\nOn December 14, 2020, and on December 31, 2020, this office forwarded copies\n\nof the Council's responses to\n\nand\n\nrespectively; neither replied.\n\n2020 PAC 65961\n\nOn December 8, 2020,\nalso submitted a Request for Review alleging\nthat the Council violated section 2. 06(g) of OMA at its November 9, 2020, meeting by using\ncontent - based restrictions to limit her comment and that of another speaker. Specifically,\nalleged that the Council muted her after one minute of speaking because she criticized a\n\ndecision made by the Mayor, and that the Council also muted another speaker for mentioning the\n\nOn December 16, 2020, this office sent a copy of the Request for Review to the\n\nCouncil and asked it to respond to\nallegations and to provide copies of the Council's\nPublic Input Guidelines, the agenda, meeting minutes (draft from, if necessary) and the verbatim\nrecording of the November 9, 2020, meeting. To the extent the issues and/ or records were\n\nidentical or overlapped, this office provided the Council with an opportunity to incorporate by\nreference to its previous response to 2020 PAC 65871.\nOn December 23, 2020, the Council provided a written response.\n\n31, 2020, this office forwarded a copy of the Council's response to\n\nOn December\n\nshe did not reply.\n\nWith this office's agreement, the Council furnished the requested meeting materials on January\n20, 2021.\n\nBecause these three Requests for Review raise similar allegations regarding the\nsame public body and public comment rules, this office has consolidated them for\ndetermination.'\n\nDETERMINATION\n\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" Under the plain language of section 2. 06(g), a public body must establish and record\nrules and may restrict public comment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 009, issued September 2, 2014, at 7.\nThe Council's rules governing public comment provide, in pertinent part:\nSec. 2- 5. — Electronic Virtual public meetings.\n\nb) Any member of the public who seeks to address the members\nof a public body at any public meeting conducted on a video and/ or\naudio electronic platform will be permitted to provide input on any\n\nmatter listed on the agenda or on any other matter of public\nconcern, subject to the following provisions:\n1) Verbal public comments.\n\nIn its response, the City clarified that the November 16, 2020, meeting was a meeting of the\nCouncil's Committee of the Whole. The City confirmed that the Council and the Council's Committee of the Whole\n\nare the same entity comprised of the same members. Letter from James L. Simon, City Attorney, to Grace Angelos,\nAssistant Attorney General, Public Access Bureau (December 7, 2020) at 1. The Council's public comment rules\nalso apply when the Council meets as the Committee of the Whole. To simplify matters, this determination will\nrefer\n\nto\n\nc. Public comment shall be limited to no more than four\n4) minutes per person. The public input portion of the\n\nmeeting shall total no more than one (1) hour unless\notherwise shortened or extended by majority vote of the\n\npublic body members present. The presiding officer, the\ncity clerk, or their designee, shall monitor each speaker's\nuse of time and shall notify the speaker when the allotted\ntime has expired.\n\nSince public comment is the time\n\nwhen the public body members listen to the public, all\npublic comments should be addressed to the public body\nas a whole. * * *\n\nd. In order to maintain reasonable decorum at a\n\nmeeting, the presiding officer of the meeting shall have\nthe authority to provide a verbal warning to a speaker\n\nwho uses abusive, harassing, threatening, or defamatory\nlanguage, or who engages in disorderly conduct that\ndisrupts, disturbs, or otherwise impedes the orderly\nconduct of a meeting. If the speaker refuses to cease\n\nsuch remarks or conduct after being warned by the\npresiding officer, the presiding officer shall have the\nauthority to mute the speaker's microphone and/ or\n\nvideo presence at the meeting. The speaker may send\nthe remainder of their remarks via email to the public\n\nbody.\n2) Written public comments\n\nb. Specific instructions for verbal or written public\ncomments shall be posted with the public notice for\n\neach meeting. 121\nThe Council also provided a copy of its Public Input Guidelines, which was posted with the\nagenda for both the November 9, 2020, and November 16, 2020, meetings. Those guidelines\n\nreiterate the rules governing public comment in the City Code. The Public Input Guidelines in\nrelevant\n\npart,\n\nstates:\n\nVerbal\n\nInput\n\nProtocol for Public Input is one of respect for the process, and\nrespect for others. Ridicule, obscene or profane language, lack of\nrespect for others, and personal attacks are not acceptable\nbehavior. Public Input shall not be used to air personal grievances.\n\nSpeakers should address all comments to the public body as a\n\nwhole and not to individual members or City staff.\n\nThe presiding officer of the meeting shall have the authority\nto provide a verbal warning to a speaker who uses abusive,\n\nharassing, threatening, or defamatory language, or who engages in\ndisorderly conduct that disrupts, disturbs, or otherwise impedes the\norderly conduct of a meeting. If the speaker refuses to cease such\n\nremarks or conduct after being warned by the presiding officer, the\npresiding officer shall have the authority to mute the speaker's\nmicrophone and/ or video presence at the meeting.\n\nNovember 16, 2020, Meeting\n\nBoth\nand\nallege that\nwas improperly muted and\nnot allowed to finish her public comment because she was voicing her opinions regarding the\nCity Administrator's handling of the civilian police review process. This office has reviewed the\nverbatim recording of the November 16, 2020, meeting, which shows that\nspoke for\ntwo minutes and 40 seconds before a Council member interrupted her to suggest she was \" out of\n\norder\" without specifying which part of the public comment rule\nhad violated. 3 Prior\nto the interruption,\nhad asked, rhetorically, whether Ms. Carol Mitten, the City\nAdministrator, had lied or tried to cover up the real reason a hearing had been cancelled. The\n\nCouncil advised\n\nto be more respectful, and allowed her to continue.\n\nthen\n\ndiscussed a proposal to amend an ordinance, and commented on Ms. Mitten's \" main goal\" in\n\nsuggesting the amendments. The Council then interrupted her again and directed her to try to\nstick to facts.\" When\nresponded that she was stating facts, and then described\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\nhttps:// www. city. urbana. i I. us/ Scripts/ Council V ideo/ V ideo. asp? v=/_ Video/ City_ Counci U2020/ 20201109/ 03._ Publ is\n\nsomething as a \" terrible move,\" another Council member interrupted her to assert that those were\n\nopinions. 4 After. that interruption, the Council muted\nyet\n\neven though her time had not\n\nexpired.\n\nIn its response to this office, the Council argued that it interrupted\n\nand\n\nultimately muted her microphone because her comments were an \" abusive personal attack on\n\nCarol Mitten,\" the City Administrator, and that § 2- 05(b)(1) d of the City's Code gave the Council\n\nthe authority to restrict\n\ncomments. 5 The Council further asserted that \"\n\nwas allowed to raise her concerns and criticisms about how the Council has handled a number of\n\nmatters so long as she refrained from abusive personal attacks on individuals by name. i6 The\nCouncil furnished for this office's review a transcript of\ncomments and underlined\nfor emphasis the particular parts of the comment that it determined were an abusive personal\n\nattack. According to the Council's response,\n\nviolated the Council's prohibition on\n\nabusive language when she stated:\nCan we trust the Urbana Police Department under Chief Seraphin's\n\nleadership[?] • * * *\n\nChief Seraphin should immediately issue a\nformal press release acknowledging the misconduct[.] * * *\n\nCarol Mitten made some rather bold claims about the complaints\n\nand appeals costing 42, 000 and 122, 000. Carol Mitten then\nproceeded to say, quote, unquote, we do not track the number of\nhours that we spend. Gosh, if I were to claim in public, that\n\nsomething costs $ 100, 000, like what Carol Mitten did, I had better\n\nbring my receipts. Regarding Carol Mitten's CPRB presentation\non October 26th, I' m still curious why Mayor Marlin told the\n\npublic that the scheduled appeal hearing was canceled due to the\nappellant and CPRB members having scheduling problems. Did\nCarol Mitten lie to Mayor Marlin about the actual reason?\n\nDid\n\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\n\nhttps:// www. city.urbana. i I. us/ Scripts/ Council V ideo/ Video. asp? v=/_ V ideo/ City_ Council/ 2020/ 20201109/ 03._ Publ is\nInput. mp4\n\n5 Letter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\nAccess Bureau (December 7, 2020) at 5.\n\nLetter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\n\nCarol Mitten try to cover up the reason that the hearing was\ncanceled?\n\nBecause Mitten herself did not follow procedures.\n\nIt's concerning that Carol Mitten believes she's exempt from the\n\nprocedures mandated by CPRB ordinance. f1\nAs the Council deemed\nabusive\"\n\ncomment as \" abusive\" and its rules prohibit\n\ncomments, this Request for Review presents the question of whether the Council\n\napplied section 2- 05(b)(1) d of the City's Code and the definition of \"abusive\" in the Public Input\nGuidelines to impermissibly restrict\n\nstatutory right to address public officials under\n\nsection 2. 06(g) of OMA. A public body has inherent authority to conduct a meeting in an\nefficient and orderly manner. See Ill. Att' y Pub. Acc. Op. No. 19- 002, issued January 9, 2019, at\n6- 7. Although OMA does not specify the nature of rules a public body may permissibly adopt, a\nboard may adopt rules to maintain order and decorum at public meetings to ensure that meetings\nare conducted efficiently. See Timmon v. Wood, 633 F. Supp. 2d 453, 465 (W. D. Mich. 2008);\nsee also I11. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5 (a public body may promulgate reasonable\ntime, place and manner\" rules aimed at preserving order and decorum). However, such rules\nmust tend to accommodate, rather than to unreasonably restrict, the right to address public\n\nofficials. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, at 923- 25 (N. D.\nIll. 2009).\n\nAlthough a public body may enforce rules regarding decorum, content - based\nrestrictions must be narrowly construed. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F.\nSupp. 2d 912, 922- 23 (N. D. 111. 2009) (\" Any content -based restrictions, promulgated with\n\nreference to the content of the speech being restricted, are subject to strict scrutiny, and must\nserve\n\na\n\ncompelling state interest\n\nand\n\nbe narrowly\n\ndrawn to achieve\n\nthat purpose.\").\n\nRules that\n\ngovern the decorum of a meeting are permitted only if they are directed to conduct which is\nactually disturbing or impeding a meeting.\"\n\nAcosta v. City of Costa Mesa, 718 F. 3d 800, 811\n\n9th Cir. 2013) (ordinance unconstitutional because it provided for the removal of individuals for\n\nproscribed types of remarks even if those remarks did not disrupt a meeting); Norse v. City of\nSanta Cruz, 629 F. 3d 966, 979 (9th Cir. 2010) (Kozinski, A., concurring) (\" Even in a limited\n\npublic forum like a city council meeting, the First Amendment tightly constrains the\n\ngovernment's power;\n\nspeakers\n\nmay be removed\n\nonly if they are actually disruptive.\"). That is not\n\nto suggest, however, that a public body must wait for a speaker's comments to cause an actual\noutburst before restricting them:\nT] he nature of a Council meeting means that a speaker can\nbecome \" disruptive\" in ways that would not meet the test of actual\n\nbreach of the peace, [ citation], or of \"fighting words\" likely to\nprovoke immediate combat. [ Citation.) A speaker may disrupt a\n\nCouncil meeting by speaking too long, by being unduly repetitious,\nor by extended discussion of irrelevancies. The meeting is\n\ndisrupted because the Council is prevented from accomplishing its\nbusiness in a reasonably efficient manner. Indeed, such conduct\nmay interfere with the rights of other speakers.\nNorwalk, 900 F. 2d 1421,\n\nWhite v. City of\n\n1425 (9th Cir. 1990).\n\nAt the same time, comments during a city council meeting which pertain to matters of public\nconcern are protected by the first amendment to the United States Constitution even if the\nspeaker's \"\n\nmotive\n\nin commenting * * *\n\ncould be an insensitive, mean spirited, personal attack[.]\"\n\nGault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 (W. D. Mich. 1999).\n\nBecause it would be\n\nillogical to construe OMA as permitting a public body to impose unconstitutional restrictions on\nmembers of the public addressing public officials, the Public Access Bureau has previously\n\ndetermined that section 2. 06(g) of OMA does not permit a public body to apply public comment\nrules that are susceptible to overbroad and arbitrary application to comments that do not actually\n\ndisrupt public meetings. See Ill. Att' y Gen. PAC Req. Rev, Ltr. 39069, issued April 5, 2016, at\n3- 4 (finding public body violated OMA by imposing rule that prohibited \" personal attacks\nagainst others\" or \" rude or slanderous remarks\").\n\nThe Council's Public Input Guidelines define \" abusive\" as \" harsh, violent,\n\nprofane, or derogatory language which would demean the dignity of an individual or which is\nintended to humiliate, mock, insult or belittle an individual.\" The Council has argued that its rule\n\nprohibiting abusive language and this definition are \" lawful restrictions on ' manner' of speech\"\nrather than the content of speech, relying on Milestone v. City of Monroe, Wisconsin, 665 F. 3d\n\n774 (7th Cir. 2011). 8 In Milestone, the director of a city's senior center enforced its Code of\nConduct, which prohibited, among other things, \" abusive, vulgar or demeaning language,\" to ban\nMs. Milestone from the center. Ms. Milestone had a history of disturbances at the senior center;\nduring the last incident before her expulsion, she loudly complained about a card game to which\nshe was a party, engaged in a \" heated discussion\" with the center's director, and then wagged her\nfinger in the director's face and threatened to sue her. Milestone, 665 F. 3d at 779. After the\n\ncenter notified her that she had violated the center's Code of Conduct for, among other things,\nLetter from James L. Simon, City Attorney, to Grace Angelos, Assistant Attorney General, Public\n\nusing abusive language, she brought suit, alleging that the code was facially unconstitutional\nbecause it placed viewpoint -based regulations on her speech in violation of the First Amendment\nto the United States Constitution.\n\nThe court found the portion of the Code of Conduct that\n\nprohibited \" abusive, vulgar or demeaning language\" was content neutral to the extent that it was\nused to serve a purpose\n\nunrelated to the content of the regulated\n\nspeech:\n\nThe Code's mission statement and objectives make it clear that the\n\npurpose of the Code is completely unrelated to the content of any\nspeaker's message. Rather than focusing on what the Center's\npatrons say, the Code focuses on the manner in which they say it.\n\nNothing in the Code provides a basis for punishing patrons for\ndisagreeing with other visitors or the Center staff (emphasis in\noriginal).\n\nMilestone, 665 F. 3d at 783.\n\nFor those reasons, the court rejected Ms. Milestone's \" facial challenge\" to the Code of Conduct,\n\nupholding it as a \" content -neutral and reasonable time, place, or manner regulation,\" and\naffirmed the holding that the city had not violated Ms. Milestone's First Amendment rights.\nMilestone, 665 F. 3d at 784.\n\nHere, it is not necessary for this office to find that the Council's public comment\nrules are invalid on their face to determine that the Council violated section 2. 06(g) of OMA\n\nwhen it applied those rules to mute\n\non November 16, 2020. Regardless of whether\n\nthe Council's prohibition on abusive language during public comment could be permissible in\nsome circumstances, this office must determine whether the Council improperly applied that rule\nto the comments at issue in this matter.\n\nAs noted above, the Council characterized\n\ncomment as an \" abusive\n\npersonal attack\" on the City Administrator, and provided this office an underlined transcript\nidentifying the allegedly abusive parts of the comment. The Council's response to this office\ndoes not contain any description of the manner in which\ndelivered her comments, or\n\ndescribe any disruption that occurred at the meeting while\ncomments.\nmeeting,\n\nwas delivering her\n\nBased on this office's review of the verbatim recording of the November 16, 2020,\ncomments did not create a disturbance or otherwise interfere with the\n\nefficiency of the Council's meeting. The recording indicates that\n\nread a statement in\n\na calm manner and, even when interrupted by members of the Council, she calmly attempted to\ncontinue with her statement. In reviewing the transcript of\ncomments along with\nthe Council's definition of \"abusive,\" this office notes that the comments did not contain apparent\nviolent or profane language. Therefore, it appears the Council must have determined\nbecause they contained \" harsh * * *\n\nor derogatory language\nwhich would demean the dignity of an individual or which is intended to humiliate, mock, insult\ncomments\n\nor\n\nHowever, our review of the verbatim recording indicates that\nstatement contained her opinions that were critical of the manner in which Ms. Mitten, a public\n\nemployee, carried out her official duties. This is a matter of public concern protected by the first\n\namendment. This office has repeatedly determined that \"[ w] hen criticism involves the conduct\nof present or former public officials in the performance of their public duties, significant latitude\n\nmust be allowed.\" I11. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3\nrestricting comment criticizing a public official by name impermissible); I11. Att'y Gen. PAC\nReq. Rev. Ltr. 60824, issued July 10, 2018, at 4- 6 (restricting comment criticizing elected\nofficials by name in connection with public matters impermissible); Ill. Att' y Gen. PAC Req.\nRev. Ltr. 51665, issued February 5, 2019, at 5- 6 (restricting comment referencing a particular\npublic official in connection with public business impermissible). Based on the available\n\ninformation, the Council applied its public comment rules to mute\n\nbecause she\n\ncriticized, by name, a public employee for the manner in which she carried out her public duties.\nUnlike the plaintiff in Milestone, who obviously created a disturbance at a senior citizen center\n\nby having a \" heated discussion\" and wagging her finger in the face of the center's director while\nthreatening to sue her, the Council applied its prohibition on \" abusive language\" to comments\nthat were critical but delivered in an apparently calm manner. These comments did not appear to\n\ndisrupt the meeting. 9 Although the Milestone case shows that a rule prohibiting abusive\ncomments can be applied permissibly to regulate the manner of speech in a content - neutral way,\nthe available information indicates that here, the Council applied its rule to prohibit\n\nfrom completing her comment because of the content of that comment.\nAccordingly, this office concludes that the Council violated section 2. 06(g) of\nOMA by restricting\nstatement during its November 16, 2020, meeting.\nNovember 9, 2020, Meeting\nIn 2020 PAC 65961,\nalleged that she and another speaker,\nwere interrupted and muted for criticizing and naming city employees and\n\nofficials in their statements during the public comment session of the Council's November 9,\n2020, meeting. In its response, the Council defended its established and recorded rules for public\ncomment as being \" lawful and reasonable government regulations as to the time, place and\n\nmanner of public comment. i10 The Council contended that it properly followed its regulations to\n9 Similarly, the Council's reliance on Vega v. Chicago Board of Education, 338 F. Supp. 3d 806\nN. D. 111. 2018), is unconvincing. That case is factually and legally distinguishable from these matters as it involved\nthe application of a facially content -neutral rule against an individual who disrupted a meeting by rising from her\nchair, rushing toward the dais where school board members were sitting, shaking her fist, and yelling \" BOOOOO!\nCOWARD! COWARD!\" Vega, 338 F. Supp. 3d at 810- 11.\n\ncall out of order and mute both\n\nand\n\nIt claimed that\n\ncomments were directed at specific persons and were abusive, harassing, and defamatory, as\nthose terms are defined in the Public Input Guidelines,\" and that\n\ncomments \" were\n\nalso directed at specific persons and were abusive, harassing, and defamatory, as those terms are\ndefined in the Public Input Guidelines. ill The Council did not provide a transcript specifically\n\nidentifying the parts of those comments that the City determined were abusive, harassing, and\n\ndefamatory.' 2\nThis office's review of the verbatim recording of the November 9, 2020, meeting\nindicates that in their statements, both\nhandling of her public duties. After\n\nand\ncriticized Mayor Marlin's\nhad spoken for approximately one minute,\n\nMayor Marlin stated that it was not an appropriate time to discuss a past decision, a former\n\nCouncil member, or her decisions.\n\nWhen\n\nsame topic, Mayor Marlin muted\n\nindicated she intended to continue on the\n\nand prohibited her from completing her statement.\n\nspoke next, raising questions about prior and current appointments to the City's\n\nCivilian Police Review Board. Immediately before he was muted,\n\nalleged that an\n\nindividual affiliated with the Civilian Police Review Board may be following a path of\n\ndishonesty. In muting and prohibiting\n\nfrom completing his statement, Mayor Marlin\n\nstated that he was not allowed to talk about former City employees, and must stick to topics or\nissues on the agenda or general matters. She further stated that\nattacking\n\nor\n\nbullying\n\nagainst\n\npeople\n\nwho\n\nwork\n\ncomments were\n\nfor the City or against former\n\nemployees.\"\n\nwas directed to complete his comments by sending an email. 13\nAs discussed previously, this office has repeatedly determined that \"[ w] hen\ncriticism involves the conduct of present or former public officials in the performance of their\n\npublic duties, significant latitude must be allowed.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 39069,\nissued April 5, 2016, at 3 (restricting comment criticizing a public official by name\nimpermissible).\n\nDespite their critical comments, both\n\nand\n\nremained\n\nLetter from Evans, Froehlich, Beth & Chamley by David Wesner to Grace Angelos, Assistant\nAttorney General, Public Access Bureau (December 23, 2020) at 5.\n\n1\" The Council's Public Input Guidelines define \" harassing\" as \" to annoy or bother someone in a\nconstant or repeated way, to make repeated attacks on another person,\" and define \" defamatory\" as \" a statement or\ncommunication that tends to harm a person's reputation by subjecting the person to public contempt, disgrace, or\nridicule, or by adversely affecting the person's business. A statement that is likely to lower that person in the\nestimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred,\ncontempt, ridicule, fear, or dislike.\"\n\nVerbatim Recording of Public Input, City Council Meeting on November 9, 2020.\nhttps:// www. city. urbana. i I. us/ Scripts/ CouncilV ideo/ V ideo. asp? v=/_ V ideo/ City_ Council/ 2020/ 20201109/ 03._ Public\n\ncalm in addressing Mayor Marlin and the Council and neither speaker caused a disturbance.\n\nUnlike the circumstances described in Milestone, there is no evidence that it was necessary to\nmute\nor\nin order to maintain decorum. Accordingly, for the same\nreasons as stated above, this office concludes that the Council violated section 2. 06(g) of OMA\nby muting\nand\nat its November 9, 2020, meeting.\nIn accordance with the conclusions of this letter, this office requests that the\n\nCouncil instruct its presiding officers to refrain at its future meetings from applying its public\n\ncomment rules imposing content -based restrictions to comments that do not disrupt its meetings\nor impede the Council from conducting orderly meetings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (312)\n814- 4467 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\n\nAssistant Attorney General\nPublic Access Bureau\n65871 65961 66133\n\no\n\n206g improper mun"}
{"id":1347,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-02-09","case_number":null,"request_numbers":["65997","66324"],"title":"City of Urbana Electoral Board OMA complaints on agenda notice, public comment, access closed without finding","filename":"65997 66324, issued February 9, 2024.pdf","rel_path":null,"word_count":5009,"summary":"The PAC reviewed allegations that the City of Urbana Electoral Board failed to provide proper notice for meetings and improperly restricted public comment. The PAC determined that the issues did not require a binding opinion and closed the files without finding a violation.","plain_summary":"Two individuals challenged a city electoral board's agenda notice, public-comment limits, and physical-access arrangements during a remote hearing. The PAC found that the Board violated OMA by reconvening with a revised agenda without 48 hours' notice and by enforcing public-comment limits that had not been properly established in advance. It found no violation in the remote-access arrangement; no remedy was available because the election had passed.","holding":"","legal_question":"Did the City of Urbana Electoral Board violate the Open Meetings Act regarding agenda notice requirements, public comment procedures, and meeting access protocols?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Urbana Electoral Board","requesting_party":"Multiple complainants","pac_outcome":"Closed without further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaints concerned the timeliness of meeting agendas, the administration of public comment periods, and the accessibility of meetings during the COVID-19 pandemic.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/65997 66324, issued February 9, 2024.pdf","sha256":"12a446d45d33c8bccc3196acfea88d6b9e3dffa2031a9929751e41ddc70e7dff","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","public comment","electoral board","remote meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nFebruary 9, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Maryalice Wu\nCity of Urbana Electoral Board\n[street address redacted for site publication -- see original PDF]\nmwu@urbanaillinois.us\nRE: OMA Requests for Review - 2020 PAC 65997; 2021 PAC 66324\nDear\n\n_, and Ms. Wu:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)). This office has consolidated two Requests for Review\nin this determination because they concern the same meeting of the City of Urbana (City)\nElectoral Board (Board).\n\nBACKGROUND\nsubmitted a Request for Review'\nOn January 4, 2021,\nalleging that the Board posted the final agenda for the December 7, 2020, meeting less than 48\nhours before the meeting began, and did not pr� notice for the Board meetings held\non December 8, 2020, and December 9, 2020. - also alleged that the Board did not\n1\n\n2021 PAC 66324\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 lnnovalion Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 2\nconduct its period for public comment according to established and recorded rules. He\ncontended that at the December 8 2020 meeting, the Board prevented him from completing his\npublic comments and that\nI and\nwere\nnot permitted to speak at all.\n\n■■■■■■\n\n- submitted her own Request for Review on December 8, 2020. 2 She\nalleged that during the public participation portion of the December 8, 2020, meeting, she had\nher \"hand raised in the Zoom conferencing app to give public input, but was not allowed to\nspeak. \" 3 She contended that the Board improperly restricted public comments to three minutes\nper speaker for a total participation time of 30 minutes, asserting that the Urbana City Code's\nrules for in-person meetings permitted individuals to speak up to 5 minutes per person for a total\nparticipation time of 2 hours.\nThis office forwarded copies of the Requests for Review to the Board and asked it\nallegations. This office\nto provide written responses addressing\nand\nrequested copies of the December 7-9, 2020, meeting agenda, minutes, and any public comment\nrules that were enforced for that meeting. The City responded on behalf of the Board and\nprovided the requested materials. The City's answers were forwarded to Mr. Hansen and - - replied to the City's response; - did not.\nOn January 13, 2021, -requested that this office also consider whether\nthe Board violated OMA by permitting certain, but not all, members of the public to attend the\nDecember 7-9, 2020, meeting in person while the rest of the public could only attend via Zoom.\nFACTS\nIn its response to this office, the City explained that the Board \"is an independent\npublic body that convenes for the purpose of conducting hearings in order to rule upon\nobjections to candidates' nominating petitions. \" 4 It stated that the Board dissolves upon\ncompletion of its tasks and is only reconvened when and if there are future objections to\nnominating petitions. The City is unaware of any previous occasions on which the Board was\nconvened. It noted that \"the entire electoral board process was foreign to the individuals who\n\n22020 PAC 65997\n3\n\nE-mail from - to [Public Access Bureau] (December 8, 2020).\n\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\nC hief, Public Access Bureau (January 18, 2021), at 1.\n4\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 3\nserved on the Board.\" 5 The City explained that \"there was some confusion at the outset of the\nHearing with seating Board members since a number of the statutorily designated members had\nto be replaced due to conflicts of interest.\" 6\nThe City stated that it posted three versions of the agenda for the December 7,\n2020, Board meeting. The City explained that the Board posted the \"original agenda\" at 5:30\np.m. on December 4, 2020. The original agenda stated, in pertinent part:\nA.CALL TO ORDER\nB.ROLLCALL\nC.PUBLICPARTICIPATI ON\n*PublicComments should be conducted in accordance to\nUrbanaCityCode section 2-5 except for the following:\ncomments will be limited to three minutes per speaker, public\ncomment will total no more than 30 minutes.\nD.PUBLIC HEARI NG\n1. Appointment of Hearing Officer[7l\nThe City stated that the Board posted an \"amended agenda\" at 12:44 p.m. on\nDecember 5, 2020, and again at 1: 14 p.m. on December 5, 2020. The City did not explain why\nthe Board posted the same version of the amended agenda twice. The amended agenda differed\nfrom the original agenda by, among other things, adding an action item to adopt rules and an\nexplanation that the Board meeting would be conducted as a hybrid meeting. The amended\nagenda removed the notation about public participation that was included in the original agenda.\nThe amended agenda stated, in pertinent part:\nA.CALL TO ORDER\nB. ROLLCALL\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau (January 18, 2021), at 1.\n5\n\n6\nLetter from James L. Simon, City Attorney, City of Urbana, Legal Division, to T[]eresa Lim,\nAssistant Attorney General, Public Access Bureau (February 11, 2021), at 2.\n7\n\nCity of Urbana Electoral Board, Agenda (December 7, 2020).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 4\nC. PUBLIC PARTICIPATION\n1. *Public input via Zoom\nD. PUBLIC HEARING\n1. Appointment of Hearing Officer\n2. Case Called\n***\nAdoption of Rules by Board\nE. ADOPTION OF RULES BY BOARD\n***\nThe Electoral Board meeting and hearing will be conducted as a\nhybrid meeting and hearing pursuant to 5 ILCS 120/7. The\nmembers of the Electoral Board, candidates, objectors, their\nrespective legal counsel (if any), and the City Attorney will be\npresent in the City Council Chambers for the hearing. The\nElectoral Board's outside retained legal counsel may attend in\nperson or by Zoom Webinar as the circumstances may dictate.\n*Due to the Governor Pritzker and Mayoral Emergency Covid-19\nOrders, the Urbana City Council Chambers will not be open to the\npublic during this proceeding. Public Comments will be received\nvia Zoom Webinar. You may watch the meeting on streaming\nservices, or on Urbana Public Television, or attend via Zoom_[SJ\nThe City stated that the Board posted a \"revised amended agenda\" at 2:54 p.m. on\nDecember 7, 2020, which was after the first session of the meeting recessed. The revised\namended agenda differed from the amended agenda by adding an action item to amend the\nagenda, by moving up the adoption of the Board rules to before public participation, and by\n\nCity of Urbana Electoral Board, Amended Agenda (December 7, 2020),\nhttps://www.urbanaillinois.us/sites/default/files/attachments/ 12-07-2020_Amended_Agenda_Electoral_0.pdf.\n8\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 5\nincluding a statement regarding public participation that was similar to the statement listed in the\noriginal agenda. The revised amended agenda stated, in pertinent part:\nA. Call to Order\nB. Roll Call\nC. Amend the Agenda\nD. Adoption of Rules By Board\nE. Appointment of Hearing Officer\nF. Public Participation\n1. *Public comment via Zoom. Except as hereinafter\nprovided, the established and recorded rules for public\ncomment pursuant to Section 2.06(g) of the Open Meetings\nAct (5 ILCS 120/2.06(g)) shall apply except that the total\ntime allocated to public comment shall be 30 minutes and\neach speaker shall be permitted to speak no longer than\nthree (3) minutes[ 9l\nThe revised amended agenda was posted with a copy of the Board's \"Rules of Procedure\"\napplicable to the hearing at issue. Rule 19 of those rules provided:\nExcept as hereinafter provided, the established and recorded rules\nfor public comment pursuant to Section 2.06(g) of the Open\nMeetings Act (5 ILCS 120/2.06(g)) shall apply except that the total\ntime allocated to public comment shall be 30 minutes and each\nspeaker shall be permitted to speak no longer than three (3)\nminutes. Public comment shall be relevant to the limited\njurisdiction of the Board_[JOJ\n\nCity of Urbana Electoral Board, Revised Amended Agenda (December 7, 2020),\nhttps://www.urbanaillinois.us/sites/default/files/attachments/Revised_Amended_Agenda_2020-12-07-10am.pdf.\n9\n\nRules of Procedure Adopted By The City Of Urbana Electoral Board For The Hearing And\nPassing Upon Objections To Nominating Papers Of Candidates (December 2020).\n10\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 6\nBased on this office's review of the recordings of the Board meeting, it appears\nthat the Board began the December 7, 2020, meeting by using the amended agenda. and three others spoke for three minutes each, but then the Hearing Officer interrupted the period\nfor public comment to suggest that the Board follow the revised amended agenda. The Board\nChair then began following the order listed on the revised amended agenda, and the Board voted\non motions to amend the agenda, adopt the rules of the Board, and appoint the hearing officer.\nThe Board then restarted the public participation period. - addressed the Board for\nanother three minutes and three other members of the public also addressed the Board for three\nminutes each, including- Public comment was interrupted again when the Board\ndecided to recess the meeting until 9:00 a.m. on December 8, 2020, due to concerns about the\nBoard's membership.\nWhen the Board reconvened at 9:00 a.m. on December 8, 2020, the Board Chair\nstated that the Board would \"start from scratch\" with the revised agenda.11 The Board then\napproved a motion to recess from the previous day's meeting and revoted on the first three\nsubstantive items listed on the revised amended agenda: amending the agenda, adopting the\nrules of the Board, and appointing the hearing officer. The Board recessed again until 5:30 p.m.\non December 8, 2020.\nWhen the Board reconvened at 5:30 p.m. on December 8, 2020, it continued to\nfollow the revised amended agenda and began with agenda item F., Public Participation. The\nBoard advised that members of the public would be allowed to speak via Zoom for three minutes\nper person for a total participation period of 30 minutes. All individuals were limited to three\nminutes for public comment, which was enforced by the Board muting the speakers after their\nallotted time. - addressed the Board for three minutes, at which point his audio was\nterminated while he was midsentence. After approximately 30 minutes of public comment, the\nBoard Chair stated, \"we have time for one more comment this evening.\" The recording shows a\nscreenshot of the meeting's Zoom platform, which appears to show a handful of participants on a\nlist raising their digital \"hands\" to speak; -and-were among those\nparticipants. The Board permitted the named person at the top of the list to speak and then\nconcluded the public participation session. Neither\nnor- were invited to\naddress the Board, presumably due to the enforcement of a 30-minute cap on public\nparticipation. This office did not observe on the recording that\nattempted to\naddress the Board. The Board recessed after a three-hour hearing, reconvening the following day\nat 5:00 p.m. The Board continued to use the revised amended agenda during the December 9,\n2020, session of the meeting and then adjourned.\n\n■■■■I\n\n11\nCity of Urbana Electoral Board, Hearing (December 8, 2020), at approximately 00:30 of the\nrecording available at\nhttps://www.city.urbana.il.us/Scripts/CouncilVideoNideo.asp?v=/_Video/City_ Council/2020/20201207 _Electoral_\nBoard_Hearing/02._Electoral_Board_Hearing_ December_ 8_2020_900_am.mp4\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 7\nDETERMINATION\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\nMeeting Agenda\npart, that\n\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2018)) provides, in pertinent\n[ a]n agenda for each regular meeting shall be posted at the\nprincipal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding\nof the meeting. [* * *] Public notice of [ * * * ] any reconvened\nmeeting, shall be given at least 48 hours before such meeting,\nwhich notice shall also include the agenda for the special,\nrescheduled, or reconvened meeting, but the validity of any action\ntaken by the public body which is germane to a subject on the\nagenda shall not be affected by other errors or omissions in the\nagenda. The requirement of public notice of reconvened meetings\ndoes not apply to any case where the meeting was open to the\npublic and (1) it is to be reconvened within 24 hours, or (2) an\nannouncement of the time and place of the reconvened meeting\nwas made at the original meeting and there is no change in the\nagenda.\n\nSection 2.02(c) of OMA (5 ILCS 2.02(c) (West 2018)) further states that\nAny agenda required under this Section shall set forth the general\nsubject matter of any resolution or ordinance that will be the\nsubject of final action at the meeting. The public body conducting\na public meeting shall ensure that at least one copy of any\nrequested notice and agenda for the meeting is continuously\navailable for public review during the entire 48-hour period\npreceding the meeting.\nOMA does not define the term \"general subject matter.\" However, the Senate debate on House\nBill No. 4687, which added section 2.02(c) to OMA as part of Public Act 97-827, effective\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 8\nJanuary 1, 2013, indicates that the General Assembly intended this provision to ensure that\nagendas provide general notice of all matters upon which a public body would be taking final\naction:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n* * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that - that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\n\nI and- contend that the version of the agenda available to\nthe public before the December 7-9, 2020, meeting differed materially from the agenda used by\nthe Board in that the publicly posted agenda did not include a reference to the public comment\nrules that were enforced at the meeting. The City asserted that there was no substantive\ndifference between the agendas. It maintained that the original agenda and revised amended\nagenda contained the relevant public comment rules.\nThis office's review of the meeting recordings confirmed that, aside from a short\nperiod on December 7, 2020, the Board relied on the revised amended agenda to conduct the\nmeeting in question. That version of the agenda was not posted until 2:54 p.m. on December 7,\n2020-after the first session of the meeting and less than 48 hours before the meeting was\nreconvened on December 8, 2020, at 9:00 a.m. The amended agenda was the version available\nto the public for 48 hours prior to the December 7, 2020, meeting, and it differed materially from\nthe revised amended agenda. In particular, it did not indicate that the Board intended to adopt\nrules for public comment that were more restrictive than the rules established and recorded in the\nUrbana City Code, or that the rules to be adopted generally concerned how the Board conducts\npublic comment or otherwise regulates public participation in its meetings. The public comment\nrules for meetings conducted on a video and/or audio electronic platform at the time of the\nmeeting were recorded in section 2-5(b)( 1 )(c) of City Ordinance 2020-09-049. Those rules\nprovide, in pertinent part: \"Public comment shall be limited to no more than four (4) minutes per\nperson. The public input portion of the meeting shall total no more than one (1) hour unless\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 9\notherwise shortened or extended by majority vote of the public body members present.\" 12 The\namended agenda gave no indication that the Board intended to vote on new public comment\nrules. Instead, the amended agenda stated there would be \"Adoption of Rules By Board\" after\nthe period for public comment. It is not necessarily a violation of OMA to address items on an\nagenda out of order, but here, because the adoption of rules came after public comment, a\nmember of the public could have reasonably concluded that the rules were unrelated to public\ncomment. Further, the agenda item's vague reference to adopting rules did not identify the\ngeneral subject matter of the Board's final action to impose limits on the total amount of time for\npublic comment and the amount of time per speaker.\nAccordingly, the Board violated section 2.02(a) of OMA by posting the agenda it\nused at the meeting-the revised amended agenda-fewer than 48 hours before the December 79, 2020, meeting. Further, the amended agenda did not sufficiently set forth that the Board\nwould be voting on public comment rules for the meeting, in violation of section 2.02(c) of\nOMA. Although there is no remedy available at this time, this office requests that if the Board\nhas occasion to meet again, it adhere to the agenda requirements in section 2.02 of OMA.\nNotice for Reconvened Meetings\nSection 2.02(a), as noted above, states that \"[p]ublic notice of [ * * * ] any\nreconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also\ninclude the agenda for the special, rescheduled, or reconvened meeting[.]\" Section 2.02(a)\nprovides a narrow exception to the 48-hour notice requirement \"where the meeting was open to\nthe public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and\nplace of the reconvened meeting was made at the original meeting and there is no change in the\nagenda.\" (Emphasis added.) -alleges that the Board should have posted notices and\nagendas for each session of the Board's December 7-9, 2020, meeting. The City countered that\nthe December 7, 2020, meeting was reconvened three times and the exception for 48-hour notice\napplied because \"each reconvening of a meeting occurred within 24 hours of when the respective\nprior meeting was recessed.\" 13\n\nCity of Urbana, Ordinance 2020-09-049, An Ordinance Amending City Code Chapter 2,\nAddition of Section 2-5 Electronic Virtual Public Meetings (October 13, 2020),\nhttps://www2.city.urbana.il.us/_Ordinances_-_Resolutions/Ordinances/2020/Ordinance_2020-09-049.pdf. The\nCity's public comment rules for in-person public meetings are recorded in Chapter 2, section 2-4(a) of the City Code\nand permit five minutes per person for a total participation period of two hours. City of Urbana, Chapter 2, Section\n2-4(a), https://library.municode.com/il/urbana/codes/code_of_ordinances?nodeld=COOR_CH2AD_ARTIINGE_ S24PUME.\n12\n\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau (January 18, 2021), at 3.\n13\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 10\nIt is clear from this office's review of the meeting materials that the December 7,\n2020, meeting was reconvened three times: December 8, 2020, at 9:00 a.m., December 8, 2020,\nat 5:30 p.m., and December 9, 2020, at 5:00 p.m. Further, as noted above, the Board\nacknowledged that it changed the meeting agenda on December 7, 2020, at 2:54 p.m., between\nthe first and second sessions of the meeting.\nIt appears that the Board construes the exception to section 2.02(a)'s 48-hour\nnotice requirement as permitting a change to a meeting agenda if \"(1) [the meeting] is to be\nreconvened within 24 hours[ ]\" and that the provision \"and there is no change in the agenda\"\napplies only to a circumstance in which \"(2) an announcement of the time and place of the\nreconvened meeting was made at the original meeting[.]\" 5 ILCS 120/2.02(a) (West 2018).\nA statute should not be construed in a way that would defeat its purpose \"or yield\nan absurd or unjust result.\" Phoenix Bond & Indemnity Co., 194 Ill. 2d 99, 107 (2000). \"The\nword 'or' is disjunctive. As used in its ordinary sense, the word 'or' marks an alternative\nindicating the various parts of the sentence which it connects are to be taken separately. * * *\nDisjunctive therefore connotes two different alternatives.\" Elementary School District 159 v.\nSchiller, 221 Ill. 2d 130, 145 (2006). However, \"or\" may be read in the conjunctive-meaning\nall the elements in the provision must be satisfied-\"when a literal reading is inconsistent with\nan apparent legislative intent.\" People v. Frieberg, 147 Ill. 2d 326, 349 (1992).\nThis office interprets the phrase \"and there is no change in the agenda\" as\nreferring both to meetings reconvened within 24 hours and meetings during which an\nannouncement of the time and place of the reconvened meeting was made at the original meeting\nsection. In other words, section 2.02(a) requires a public body to post notice and an agenda 48\nhours in advance of a meeting whenever the agenda changes, regardless of when or how a\nmeeting is reconvened. One of the purposes of OMA is to ensure proper advance notice of\nmeetings and actions to be taken, and therefore it is of utmost importance that the public have\nadvance access to the agenda that a public body uses during a meeting. Although the use of \"or\"\nin the language in of section 2.02(a) would commonly be understood to provide two alternative\ncircumstances for permitting changes in the agenda of a reconvened meeting, it would contradict\nthe purpose of OMA to permit a public body to alter the agenda of a meeting reconvened within\n24 hours of the meeting without providing notice of additional subjects of final action or even\nnotifying the public when and where the meeting would reconvene. 5 ILCS 120/1 (West 2018))\n(\"The General Assembly further declares it to be the public policy of this State that its citizens\nshall be given advance notice of and the right to attend all meetings at which any business of a\npublic body is discussed or acted upon in any way.\"). It would be consistent with the intent of\nthe Act to construe the exception in section 2.02(a) of OMA as permitting an open meeting to be\nreconvened without additional notice only if (1) it is to be reconvened within 24 hours, (2) an\nannouncement of the time and place of the reconvened meeting was made at the original\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 11\nmeeting, and (3) there is no change in the agenda. Accordingly, this office concludes that the\nBoard should have provided 48 hours' notice of its revised amended agenda before reconvening\nthe December 7, 2020, meeting.\nPublic Comment\nSection 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2018)) provides that \"[a]ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" Under the plain language of section 2.06(g), a public body\nmust establish and record rules and may restrict public comment only pursuant to those rules.\nSee Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7.\nAs detailed above,-addressed the Board twice on December 7, 2020,\nfor a total of six minutes. -also addressed the Board for three minutes on December 7,\n2020. -addressed the Board a third time during its December 8, 2020, 5:30 p.m.\nsession. During that meeting,\nwas muted midsentence after he had addressed the\nand-had their hands raised but were\nBoard for three minutes. Further,\nnot permitted to address the Board on December 8, 2020, presumably due to the enforcement of\na 30-minute cap on public participation. This office did not observe that\nattempted to address the Board during the December 8, 2020, meeting.\nThis office concluded above that the Board failed to provide sufficient advance\nnotice of its intention to adopt rules for public comment limiting each person to three minutes for\na total of 30 minutes of public participation. Because the Board approved the public comment\nrules without providing adequate advance notice, its action was invalid. Therefore, the public\ncomment rules were not properly \"established and recorded\" during the periods for public\ncomment on December 7, 2020, or December 8, 2020. While the Board argued that it provided a\ntotal of 38 minutes of public participation over the course of two days, it had not adopted any\nrules prior to the first three people providing public comment at the December 7, 2020, hearing.\nThe Board nonetheless enforced a three-minute limit per person on those individuals.\nAdditionally, the Board chair stated at the morning portion of the December 8, 2020, meeting\nthat the Board was starting from scratch, suggesting that it was starting over the public comment\nportion of the hearing. Under these circumstances, by enforcing its time limits, the Board\nimproperly restrictedand\nfrom addressing the Board.\nAs noted previously, the City stated that the Board only convenes when there is\nan objection to a nominating petition for a candidate. Because the election relevant to the\ncandidates at issue has since passed, there is no remedy that can address this violation. This\noffice reminds the City and Board that it must provide members of the public an opportunity to\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 12\naddress public officials and may only restrict public comment pursuant to established and\nrecorded rules.\nReasonable Access\nAfter submitting his Request for Review,_ e-mailed this office to\nallege that the Board improperly restricted public access to the December 7-9, 2020, meeting in\nviolation of section 2.01 of OMA (5 ILCS 120/2.01 (West 2018)). He stated that the Board\nmembers, objectors, attorneys, and candidates were physically present in the meeting room along\nwith \"two or more other members of the public, who were not participants in the hearing[.]\" 14\n-stated that the doors to the City building were locked and the Board did not permit\nphysical access to the meeting for other members of the public or the press. He did not allege\nthat anyone sought to attend the meeting in person and was turned away.\nSection 2.01 of OMA provides, in relevant part, that \"[a]ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" The concept of public convenience implies \"a rule of reasonableness, not 'absolute\naccessibility' but 'reasonable accessibility.\"' Gerwin v. Livingston Co. Board, 345 Ill. App. 3d\n352, 362 (2003). This office has previously determined that under the particular, unprecedented\ncircumstances of the COVID-19 pandemic, and pursuant to the Governor's Executive Orders and\nthe requirements of section 7(e) of OMA 15 that permit remote meetings during public health\nemergencies provided that certain conditions are met, a public body may fulfill the \"convenient\nand open to the public\" requirement by providing legitimate means for members of the public to\naccess open meetings remotely. For example, this office has determined that a public body\ncomplied with section 2.01 of OMA when it facilitated public access to a meeting using audio\nconference technology when there was an Executive Order in place limiting the size of in-person\ngatherings and prohibiting all interested members of the public from attending the meeting in\nperson. See,for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 63372, issued September 17, 2020,\nat 4-5. This office has also determined that it was not unreasonable for a public body to\nprioritize physical attendance for certain individuals but accommodate others only through video\nconferencing. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 64497, issued September 3, 2020, at 3.\nFurther, this office has concluded that a public body did not violate section 2.01 when it admitted\nindividuals who showed up to attend a meeting in person despite the fact that the meeting had\nbeen listed on the agenda as a remote meeting and was being broadcast through Zoom. See Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 64541 64857, issued April 8, 2021, at 5.\n\nE-mail from\n\n14\n\n15\n\nto Deputy Bureau Chief [Laura] Harter (January 13, 2021).\n\n5 ILCS 120/7(e) (West 2018), as amended by Public Act 101-640, effective June 12, 2020.\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Maryalice Wu\nFebruary 9, 2024\nPage 13\n-•s allegations that members of the public attended the Board meeting\nin person are vague, but even if it is true that individuals who were not directly affiliated with the\nBoard's proceedings attended the meeting in person, this office declines to conclude that the\nBoard violated OMA by permitting their attendance. It is undisputed that the meeting agenda\nstated that the December 7-9, 2020, meeting location would not be open to the public and that\nthe Board provided sufficient remote access via Zoom. Even though the Board's meeting had\nbeen listed on the agenda as available to the public only via Zoom, because access was provided\nremotely, this office is unable to conclude that the Board would have violated OMA if it\naccommodated rather than turned away individuals who showed up to attend the meeting in\nperson.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nlaura.harter@ilag.gov. This letter serves to close these files.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n65997 66324 o consol 201 proper 202 improper 206g improper elec bd\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Meeting agendas, public comment periods, and COVID-19 meeting access","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":"Two individuals filed requests for review with the Illinois Attorney General's office, alleging that the City of Urbana Electoral Board posted meeting agendas less than 48 hours in advance, restricted public comment to three minutes per speaker and 30 minutes total, and did not allow all members of the public to attend in person. The Attorney General's office issued a formal determination under the Open Meetings Act, consolidating the requests and summarizing the facts and allegations, but did not state whether the Board violated the law or issue any finding on the claims.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65997/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nFebruary 9, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Maryalice Wu\nCity of Urbana Electoral Board\n[street address redacted for site publication -- see original PDF]\nmwu@urbanaillinois.us\nRE: OMA Requests for Review - 2020 PAC 65997; 2021 PAC 66324\nDear\n\n_, and Ms. Wu:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)). This office has consolidated two Requests for Review\nin this determination because they concern the same meeting of the City of Urbana (City)\nElectoral Board (Board).\n\nBACKGROUND\nsubmitted a Request for Review'\nOn January 4, 2021,\nalleging that the Board posted the final agenda for the December 7, 2020, meeting less than 48\nhours before the meeting began, and did not pr� notice for the Board meetings held\non December 8, 2020, and December 9, 2020. - also alleged that the Board did not\n1\n\n2021 PAC 66324\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 lnnovalion Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nconduct its period for public comment according to established and recorded rules. He\ncontended that at the December 8 2020 meeting, the Board prevented him from completing his\npublic comments and that\nI and\nwere\nnot permitted to speak at all.\n\n■■■■■■\n\n- submitted her own Request for Review on December 8, 2020. 2 She\nalleged that during the public participation portion of the December 8, 2020, meeting, she had\nher \"hand raised in the Zoom conferencing app to give public input, but was not allowed to\nspeak. \" 3 She contended that the Board improperly restricted public comments to three minutes\nper speaker for a total participation time of 30 minutes, asserting that the Urbana City Code's\nrules for in-person meetings permitted individuals to speak up to 5 minutes per person for a total\nparticipation time of 2 hours.\nThis office forwarded copies of the Requests for Review to the Board and asked it\nallegations. This office\nto provide written responses addressing\nand\nrequested copies of the December 7-9, 2020, meeting agenda, minutes, and any public comment\nrules that were enforced for that meeting. The City responded on behalf of the Board and\nprovided the requested materials. The City's answers were forwarded to Mr. Hansen and - - replied to the City's response; - did not.\nOn January 13, 2021, -requested that this office also consider whether\nthe Board violated OMA by permitting certain, but not all, members of the public to attend the\nDecember 7-9, 2020, meeting in person while the rest of the public could only attend via Zoom.\nFACTS\nIn its response to this office, the City explained that the Board \"is an independent\npublic body that convenes for the purpose of conducting hearings in order to rule upon\nobjections to candidates' nominating petitions. \" 4 It stated that the Board dissolves upon\ncompletion of its tasks and is only reconvened when and if there are future objections to\nnominating petitions. The City is unaware of any previous occasions on which the Board was\nconvened. It noted that \"the entire electoral board process was foreign to the individuals who\n\n22020 PAC 65997\n3\n\nE-mail from - to [Public Access Bureau] (December 8, 2020).\n\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\n\nserved on the Board.\" 5 The City explained that \"there was some confusion at the outset of the\nHearing with seating Board members since a number of the statutorily designated members had\nto be replaced due to conflicts of interest.\" 6\nThe City stated that it posted three versions of the agenda for the December 7,\n2020, Board meeting. The City explained that the Board posted the \"original agenda\" at 5:30\np.m. on December 4, 2020. The original agenda stated, in pertinent part:\nA.CALL TO ORDER\nB.ROLLCALL\nC.PUBLICPARTICIPATI ON\n*PublicComments should be conducted in accordance to\nUrbanaCityCode section 2-5 except for the following:\ncomments will be limited to three minutes per speaker, public\ncomment will total no more than 30 minutes.\nD.PUBLIC HEARI NG\n1. Appointment of Hearing Officer[7l\nThe City stated that the Board posted an \"amended agenda\" at 12:44 p.m. on\nDecember 5, 2020, and again at 1: 14 p.m. on December 5, 2020. The City did not explain why\nthe Board posted the same version of the amended agenda twice. The amended agenda differed\nfrom the original agenda by, among other things, adding an action item to adopt rules and an\nexplanation that the Board meeting would be conducted as a hybrid meeting. The amended\nagenda removed the notation about public participation that was included in the original agenda.\nThe amended agenda stated, in pertinent part:\nA.CALL TO ORDER\nB. ROLLCALL\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau (January 18, 2021), at 1.\n5\n\n6\nLetter from James L. Simon, City Attorney, City of Urbana, Legal Division, to T[]eresa Lim,\n\nC. PUBLIC PARTICIPATION\n1. *Public input via Zoom\nD. PUBLIC HEARING\n1. Appointment of Hearing Officer\n2. Case Called\n***\nAdoption of Rules by Board\nE. ADOPTION OF RULES BY BOARD\n***\nThe Electoral Board meeting and hearing will be conducted as a\nhybrid meeting and hearing pursuant to 5 ILCS 120/7. The\nmembers of the Electoral Board, candidates, objectors, their\nrespective legal counsel (if any), and the City Attorney will be\npresent in the City Council Chambers for the hearing. The\nElectoral Board's outside retained legal counsel may attend in\nperson or by Zoom Webinar as the circumstances may dictate.\n*Due to the Governor Pritzker and Mayoral Emergency Covid-19\nOrders, the Urbana City Council Chambers will not be open to the\npublic during this proceeding. Public Comments will be received\nvia Zoom Webinar. You may watch the meeting on streaming\nservices, or on Urbana Public Television, or attend via Zoom_[SJ\nThe City stated that the Board posted a \"revised amended agenda\" at 2:54 p.m. on\nDecember 7, 2020, which was after the first session of the meeting recessed. The revised\namended agenda differed from the amended agenda by adding an action item to amend the\nagenda, by moving up the adoption of the Board rules to before public participation, and by\n\nCity of Urbana Electoral Board, Amended Agenda (December 7, 2020),\nhttps://www.urbanaillinois.us/sites/default/files/attachments/ 12-07-2020_Amended_Agenda_Electoral_0.pdf.\n\nincluding a statement regarding public participation that was similar to the statement listed in the\noriginal agenda. The revised amended agenda stated, in pertinent part:\nA. Call to Order\nB. Roll Call\nC. Amend the Agenda\nD. Adoption of Rules By Board\nE. Appointment of Hearing Officer\nF. Public Participation\n1. *Public comment via Zoom. Except as hereinafter\nprovided, the established and recorded rules for public\ncomment pursuant to Section 2.06(g) of the Open Meetings\nAct (5 ILCS 120/2.06(g)) shall apply except that the total\ntime allocated to public comment shall be 30 minutes and\neach speaker shall be permitted to speak no longer than\nthree (3) minutes[ 9l\nThe revised amended agenda was posted with a copy of the Board's \"Rules of Procedure\"\napplicable to the hearing at issue. Rule 19 of those rules provided:\nExcept as hereinafter provided, the established and recorded rules\nfor public comment pursuant to Section 2.06(g) of the Open\nMeetings Act (5 ILCS 120/2.06(g)) shall apply except that the total\ntime allocated to public comment shall be 30 minutes and each\nspeaker shall be permitted to speak no longer than three (3)\nminutes. Public comment shall be relevant to the limited\njurisdiction of the Board_[JOJ\n\nCity of Urbana Electoral Board, Revised Amended Agenda (December 7, 2020),\nhttps://www.urbanaillinois.us/sites/default/files/attachments/Revised_Amended_Agenda_2020-12-07-10am.pdf.\n\nBased on this office's review of the recordings of the Board meeting, it appears\nthat the Board began the December 7, 2020, meeting by using the amended agenda. and three others spoke for three minutes each, but then the Hearing Officer interrupted the period\nfor public comment to suggest that the Board follow the revised amended agenda. The Board\nChair then began following the order listed on the revised amended agenda, and the Board voted\non motions to amend the agenda, adopt the rules of the Board, and appoint the hearing officer.\nThe Board then restarted the public participation period. - addressed the Board for\nanother three minutes and three other members of the public also addressed the Board for three\nminutes each, including- Public comment was interrupted again when the Board\ndecided to recess the meeting until 9:00 a.m. on December 8, 2020, due to concerns about the\nBoard's membership.\nWhen the Board reconvened at 9:00 a.m. on December 8, 2020, the Board Chair\nstated that the Board would \"start from scratch\" with the revised agenda.11 The Board then\napproved a motion to recess from the previous day's meeting and revoted on the first three\nsubstantive items listed on the revised amended agenda: amending the agenda, adopting the\nrules of the Board, and appointing the hearing officer. The Board recessed again until 5:30 p.m.\non December 8, 2020.\nWhen the Board reconvened at 5:30 p.m. on December 8, 2020, it continued to\nfollow the revised amended agenda and began with agenda item F., Public Participation. The\nBoard advised that members of the public would be allowed to speak via Zoom for three minutes\nper person for a total participation period of 30 minutes. All individuals were limited to three\nminutes for public comment, which was enforced by the Board muting the speakers after their\nallotted time. - addressed the Board for three minutes, at which point his audio was\nterminated while he was midsentence. After approximately 30 minutes of public comment, the\nBoard Chair stated, \"we have time for one more comment this evening.\" The recording shows a\nscreenshot of the meeting's Zoom platform, which appears to show a handful of participants on a\nlist raising their digital \"hands\" to speak; -and-were among those\nparticipants. The Board permitted the named person at the top of the list to speak and then\nconcluded the public participation session. Neither\nnor- were invited to\naddress the Board, presumably due to the enforcement of a 30-minute cap on public\nparticipation. This office did not observe on the recording that\nattempted to\naddress the Board. The Board recessed after a three-hour hearing, reconvening the following day\nat 5:00 p.m. The Board continued to use the revised amended agenda during the December 9,\n2020, session of the meeting and then adjourned.\n\n■■■■I\n\n11\nCity of Urbana Electoral Board, Hearing (December 8, 2020), at approximately 00:30 of the\nrecording available at\nhttps://www.city.urbana.il.us/Scripts/CouncilVideoNideo.asp?v=/_Video/City_ Council/2020/20201207 _Electoral_\n\nDETERMINATION\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\nMeeting Agenda\npart, that\n\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2018)) provides, in pertinent\n[ a]n agenda for each regular meeting shall be posted at the\nprincipal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding\nof the meeting. [* * *] Public notice of [ * * * ] any reconvened\nmeeting, shall be given at least 48 hours before such meeting,\nwhich notice shall also include the agenda for the special,\nrescheduled, or reconvened meeting, but the validity of any action\ntaken by the public body which is germane to a subject on the\nagenda shall not be affected by other errors or omissions in the\nagenda. The requirement of public notice of reconvened meetings\ndoes not apply to any case where the meeting was open to the\npublic and (1) it is to be reconvened within 24 hours, or (2) an\nannouncement of the time and place of the reconvened meeting\nwas made at the original meeting and there is no change in the\nagenda.\n\nSection 2.02(c) of OMA (5 ILCS 2.02(c) (West 2018)) further states that\nAny agenda required under this Section shall set forth the general\nsubject matter of any resolution or ordinance that will be the\nsubject of final action at the meeting. The public body conducting\na public meeting shall ensure that at least one copy of any\nrequested notice and agenda for the meeting is continuously\n\nJanuary 1, 2013, indicates that the General Assembly intended this provision to ensure that\nagendas provide general notice of all matters upon which a public body would be taking final\naction:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n* * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that - that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\n\nI and- contend that the version of the agenda available to\nthe public before the December 7-9, 2020, meeting differed materially from the agenda used by\nthe Board in that the publicly posted agenda did not include a reference to the public comment\nrules that were enforced at the meeting. The City asserted that there was no substantive\ndifference between the agendas. It maintained that the original agenda and revised amended\nagenda contained the relevant public comment rules.\nThis office's review of the meeting recordings confirmed that, aside from a short\nperiod on December 7, 2020, the Board relied on the revised amended agenda to conduct the\nmeeting in question. That version of the agenda was not posted until 2:54 p.m. on December 7,\n2020-after the first session of the meeting and less than 48 hours before the meeting was\nreconvened on December 8, 2020, at 9:00 a.m. The amended agenda was the version available\nto the public for 48 hours prior to the December 7, 2020, meeting, and it differed materially from\nthe revised amended agenda. In particular, it did not indicate that the Board intended to adopt\nrules for public comment that were more restrictive than the rules established and recorded in the\nUrbana City Code, or that the rules to be adopted generally concerned how the Board conducts\npublic comment or otherwise regulates public participation in its meetings. The public comment\nrules for meetings conducted on a video and/or audio electronic platform at the time of the\nmeeting were recorded in section 2-5(b)(1)(c) of City Ordinance 2020-09-049. Those rules\nprovide, in pertinent part: \"Public comment shall be limited to no more than four (4) minutes per\nperson. The public input portion of the meeting shall total no more than one (1) hour unless\n\notherwise shortened or extended by majority vote of the public body members present.\" 12 The\namended agenda gave no indication that the Board intended to vote on new public comment\nrules. Instead, the amended agenda stated there would be \"Adoption of Rules By Board\" after\nthe period for public comment. It is not necessarily a violation of OMA to address items on an\nagenda out of order, but here, because the adoption of rules came after public comment, a\nmember of the public could have reasonably concluded that the rules were unrelated to public\ncomment. Further, the agenda item's vague reference to adopting rules did not identify the\ngeneral subject matter of the Board's final action to impose limits on the total amount of time for\npublic comment and the amount of time per speaker.\nAccordingly, the Board violated section 2.02(a) of OMA by posting the agenda it\nused at the meeting-the revised amended agenda-fewer than 48 hours before the December 79, 2020, meeting. Further, the amended agenda did not sufficiently set forth that the Board\nwould be voting on public comment rules for the meeting, in violation of section 2.02(c) of\nOMA. Although there is no remedy available at this time, this office requests that if the Board\nhas occasion to meet again, it adhere to the agenda requirements in section 2.02 of OMA.\nNotice for Reconvened Meetings\nSection 2.02(a), as noted above, states that \"[p]ublic notice of [ * * * ] any\nreconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also\ninclude the agenda for the special, rescheduled, or reconvened meeting[.]\" Section 2.02(a)\nprovides a narrow exception to the 48-hour notice requirement \"where the meeting was open to\nthe public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and\nplace of the reconvened meeting was made at the original meeting and there is no change in the\nagenda.\" (Emphasis added.) -alleges that the Board should have posted notices and\nagendas for each session of the Board's December 7-9, 2020, meeting. The City countered that\nthe December 7, 2020, meeting was reconvened three times and the exception for 48-hour notice\napplied because \"each reconvening of a meeting occurred within 24 hours of when the respective\nprior meeting was recessed.\" 13\n\nCity of Urbana, Ordinance 2020-09-049, An Ordinance Amending City Code Chapter 2,\nAddition of Section 2-5 Electronic Virtual Public Meetings (October 13, 2020),\nhttps://www2.city.urbana.il.us/_Ordinances_-_Resolutions/Ordinances/2020/Ordinance_2020-09-049.pdf. The\nCity's public comment rules for in-person public meetings are recorded in Chapter 2, section 2-4(a) of the City Code\nand permit five minutes per person for a total participation period of two hours. City of Urbana, Chapter 2, Section\n2-4(a), https://library.municode.com/il/urbana/codes/code_of_ordinances?nodeld=COOR_CH2AD_ARTIINGE_ S24PUME.\n12\n\nLetter from James L. Simon, City Attorney, City of Urbana, to Laura S. Harter, Deputy Bureau\n\nIt is clear from this office's review of the meeting materials that the December 7,\n2020, meeting was reconvened three times: December 8, 2020, at 9:00 a.m., December 8, 2020,\nat 5:30 p.m., and December 9, 2020, at 5:00 p.m. Further, as noted above, the Board\nacknowledged that it changed the meeting agenda on December 7, 2020, at 2:54 p.m., between\nthe first and second sessions of the meeting.\nIt appears that the Board construes the exception to section 2.02(a)'s 48-hour\nnotice requirement as permitting a change to a meeting agenda if \"(1) [the meeting] is to be\nreconvened within 24 hours[ ]\" and that the provision \"and there is no change in the agenda\"\napplies only to a circumstance in which \"(2) an announcement of the time and place of the\nreconvened meeting was made at the original meeting[.]\" 5 ILCS 120/2.02(a) (West 2018).\nA statute should not be construed in a way that would defeat its purpose \"or yield\nan absurd or unjust result.\" Phoenix Bond & Indemnity Co., 194 Ill. 2d 99, 107 (2000). \"The\nword 'or' is disjunctive. As used in its ordinary sense, the word 'or' marks an alternative\nindicating the various parts of the sentence which it connects are to be taken separately. * * *\nDisjunctive therefore connotes two different alternatives.\" Elementary School District 159 v.\nSchiller, 221 Ill. 2d 130, 145 (2006). However, \"or\" may be read in the conjunctive-meaning\nall the elements in the provision must be satisfied-\"when a literal reading is inconsistent with\nan apparent legislative intent.\" People v. Frieberg, 147 Ill. 2d 326, 349 (1992).\nThis office interprets the phrase \"and there is no change in the agenda\" as\nreferring both to meetings reconvened within 24 hours and meetings during which an\nannouncement of the time and place of the reconvened meeting was made at the original meeting\nsection. In other words, section 2.02(a) requires a public body to post notice and an agenda 48\nhours in advance of a meeting whenever the agenda changes, regardless of when or how a\nmeeting is reconvened. One of the purposes of OMA is to ensure proper advance notice of\nmeetings and actions to be taken, and therefore it is of utmost importance that the public have\nadvance access to the agenda that a public body uses during a meeting. Although the use of \"or\"\nin the language in of section 2.02(a) would commonly be understood to provide two alternative\ncircumstances for permitting changes in the agenda of a reconvened meeting, it would contradict\nthe purpose of OMA to permit a public body to alter the agenda of a meeting reconvened within\n24 hours of the meeting without providing notice of additional subjects of final action or even\nnotifying the public when and where the meeting would reconvene. 5 ILCS 120/1 (West 2018))\n(\"The General Assembly further declares it to be the public policy of this State that its citizens\nshall be given advance notice of and the right to attend all meetings at which any business of a\npublic body is discussed or acted upon in any way.\"). It would be consistent with the intent of\nthe Act to construe the exception in section 2.02(a) of OMA as permitting an open meeting to be\nreconvened without additional notice only if (1) it is to be reconvened within 24 hours, (2) an\n\nmeeting, and (3) there is no change in the agenda. Accordingly, this office concludes that the\nBoard should have provided 48 hours' notice of its revised amended agenda before reconvening\nthe December 7, 2020, meeting.\nPublic Comment\nSection 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2018)) provides that \"[a]ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" Under the plain language of section 2.06(g), a public body\nmust establish and record rules and may restrict public comment only pursuant to those rules.\nSee Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7.\nAs detailed above,-addressed the Board twice on December 7, 2020,\nfor a total of six minutes. -also addressed the Board for three minutes on December 7,\n2020. -addressed the Board a third time during its December 8, 2020, 5:30 p.m.\nsession. During that meeting,\nwas muted midsentence after he had addressed the\nand-had their hands raised but were\nBoard for three minutes. Further,\nnot permitted to address the Board on December 8, 2020, presumably due to the enforcement of\na 30-minute cap on public participation. This office did not observe that\nattempted to address the Board during the December 8, 2020, meeting.\nThis office concluded above that the Board failed to provide sufficient advance\nnotice of its intention to adopt rules for public comment limiting each person to three minutes for\na total of 30 minutes of public participation. Because the Board approved the public comment\nrules without providing adequate advance notice, its action was invalid. Therefore, the public\ncomment rules were not properly \"established and recorded\" during the periods for public\ncomment on December 7, 2020, or December 8, 2020. While the Board argued that it provided a\ntotal of 38 minutes of public participation over the course of two days, it had not adopted any\nrules prior to the first three people providing public comment at the December 7, 2020, hearing.\nThe Board nonetheless enforced a three-minute limit per person on those individuals.\nAdditionally, the Board chair stated at the morning portion of the December 8, 2020, meeting\nthat the Board was starting from scratch, suggesting that it was starting over the public comment\nportion of the hearing. Under these circumstances, by enforcing its time limits, the Board\nimproperly restrictedand\nfrom addressing the Board.\nAs noted previously, the City stated that the Board only convenes when there is\nan objection to a nominating petition for a candidate. Because the election relevant to the\ncandidates at issue has since passed, there is no remedy that can address this violation. This\noffice reminds the City and Board that it must provide members of the public an opportunity to\n\naddress public officials and may only restrict public comment pursuant to established and\nrecorded rules.\nReasonable Access\nAfter submitting his Request for Review,_ e-mailed this office to\nallege that the Board improperly restricted public access to the December 7-9, 2020, meeting in\nviolation of section 2.01 of OMA (5 ILCS 120/2.01 (West 2018)). He stated that the Board\nmembers, objectors, attorneys, and candidates were physically present in the meeting room along\nwith \"two or more other members of the public, who were not participants in the hearing[.]\" 14\n-stated that the doors to the City building were locked and the Board did not permit\nphysical access to the meeting for other members of the public or the press. He did not allege\nthat anyone sought to attend the meeting in person and was turned away.\nSection 2.01 of OMA provides, in relevant part, that \"[a]ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" The concept of public convenience implies \"a rule of reasonableness, not 'absolute\naccessibility' but 'reasonable accessibility.\"' Gerwin v. Livingston Co. Board, 345 Ill. App. 3d\n352, 362 (2003). This office has previously determined that under the particular, unprecedented\ncircumstances of the COVID-19 pandemic, and pursuant to the Governor's Executive Orders and\nthe requirements of section 7(e) of OMA 15 that permit remote meetings during public health\nemergencies provided that certain conditions are met, a public body may fulfill the \"convenient\nand open to the public\" requirement by providing legitimate means for members of the public to\naccess open meetings remotely. For example, this office has determined that a public body\ncomplied with section 2.01 of OMA when it facilitated public access to a meeting using audio\nconference technology when there was an Executive Order in place limiting the size of in-person\ngatherings and prohibiting all interested members of the public from attending the meeting in\nperson. See,for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 63372, issued September 17, 2020,\nat 4-5. This office has also determined that it was not unreasonable for a public body to\nprioritize physical attendance for certain individuals but accommodate others only through video\nconferencing. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 64497, issued September 3, 2020, at 3.\nFurther, this office has concluded that a public body did not violate section 2.01 when it admitted\nindividuals who showed up to attend a meeting in person despite the fact that the meeting had\nbeen listed on the agenda as a remote meeting and was being broadcast through Zoom. See Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 64541 64857, issued April 8, 2021, at 5.\n\nE-mail from\n\n-•s allegations that members of the public attended the Board meeting\nin person are vague, but even if it is true that individuals who were not directly affiliated with the\nBoard's proceedings attended the meeting in person, this office declines to conclude that the\nBoard violated OMA by permitting their attendance. It is undisputed that the meeting agenda\nstated that the December 7-9, 2020, meeting location would not be open to the public and that\nthe Board provided sufficient remote access via Zoom. Even though the Board's meeting had\nbeen listed on the agenda as available to the public only via Zoom, because access was provided\nremotely, this office is unable to conclude that the Board would have violated OMA if it\naccommodated rather than turned away individuals who showed up to attend the meeting in\nperson.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nlaura.harter@ilag.gov. This letter serves to close these files.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n65997 66324 o consol 201 proper 202 improper 206g improper elec bd\n\nOffice of the Illinois Attorney General"}
{"id":1348,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-02-22","case_number":null,"request_numbers":["66200"],"title":"Village of Antioch Board violated OMA with vague agenda on disciplinary vote","filename":"66200, issued February 22, 2022.pdf","rel_path":null,"word_count":1912,"summary":"Trustee Scott Pierce alleged that the Village of Antioch Board of Trustees failed to provide adequate notice on its meeting agenda regarding disciplinary action taken against him and two other trustees. The PAC determined that the Board violated the Open Meetings Act by failing to sufficiently describe the subject matter of the action taken.","plain_summary":"A Village Trustee complained that the Board held a vote to discipline him and two colleagues without properly listing the topic on the meeting agenda. The Attorney General's office agreed, finding that the agenda was too vague to inform the public about the nature of the action being taken. This means the Board failed to follow transparency requirements meant to ensure the public knows what officials are voting on.","holding":"The Village of Antioch Board of Trustees violated the Open Meetings Act by failing to provide adequate notice on its agenda regarding the disciplinary action taken against three trustees.","legal_question":"Did the Village of Antioch Board of Trustees violate the Open Meetings Act by failing to adequately describe the general subject matter of its action on the meeting agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Antioch Board of Trustees","requesting_party":"Trustee Scott Pierce","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board of Trustees failed to adequately identify the subject matter of disciplinary action taken against three trustees on its meeting agenda.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/66200, issued February 22, 2022.pdf","sha256":"149b11eb0836b261239bb3d0688e24d6c43968d212a0995ef51fcfdad6cbbda9","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","open meetings act","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nFebruary 22, 2022\n\nVia electronic mail\nThe Honorable Scott A. Pierce\nMember, Board of Trustees\nVillage of Antioch\n\nVia electronic mail\nThe Honorable Scott J. Gartner\nMayor\nVillage of Antioch\n[street address redacted for site publication -- see original PDF]\nsgartner@antioch. il.gov\nRE: OMA Request for Review – 2020 PAC 66200\nDear Trustee Pierce and Mayor Gartner:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons discussed below, the Public Access\nBureau concludes that the Village of Antioch ( Village) Board of Trustees ( Board) violated the\nOpen Meetings Act (OMA) ( 5 ILCS 120/ 1 et seq. ( West 2020)) during its December 14, 2020,\nmeeting.\nOn December 17, 2020, Trustee Scott Pierce submitted a Request for Review\nalleging that the Board' s December 14, 2020, meeting agenda did not adequately identify the\ngeneral subject matter of the Board' s action to find him and two other Village trustees in\nviolation of the Village' s Code of Behavior and Conduct for Village Elected and Appointed\nOfficials ( Code). 1 On December 30, 2020, this office forwarded a copy of the Request for\nReview to the Board and asked it to provide a written response to the allegations, together with\ncopies of the agenda, meeting minutes ( draft form, if necessary), and a verbatim recording of the\nDecember 14, 2020, meeting, if such a recording existed. On January 26, 2021, the Board\n1Village of Anticoch Code of Behavior and Conduct for Village Elected and Appointed Officials,\nResolution No. 20-16, passed March 9, 2020.\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814-3000 • TTY: (312) 814-3374 • Fax: ( 312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Scott A. Pierce\nThe Honorable Scott J. Gartner\nFebruary 22, 2022\nPage 2\n\nsubmitted a written response and furnished the requested meeting materials. On the same date,\nthis office forwarded a copy of the Board' s response to Trustee Pierce with an opportunity to\nreply; he submitted a reply on January 28, 2021.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989). Section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)) provides\nthat \"[ a] ny agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\" ( Emphasis\nadded.) The Senate debate on House Bill No. 4687, which was enacted as Public Act 97-827,\neffective January 1, 2013, adding section 2.02(c) of OMA, indicates that the General Assembly\nintended this provision to ensure that agendas provide sufficiently descriptive advance notice of\nthe matters upon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific [ the public\nbody] needed to be to the public of what they were going to\ndiscuss that would be final action. And this just says that you have\nto have a * * * general notice if you're going to have and take final\naction, as to generally what' s going to be discussed so that – that\npeople who follow their units of local government know what\nthey're going to be acting upon. Remarks of Sen. Dillard, May 16,\n2012, Senate Debate on House Bill No. 4687, at 47.\nItem VI.14 of the December 14, 2020, meeting agenda identifies the matter to be\nconsidered as \"[ d]iscussion of retaining independent counsel due to the ethical recusal of the\nVillage Attorney on a matter.\" 2 Trustee Pierce stated that the inclusion of this agenda item arose\nas a result of a complaint filed by a citizen against three trustees, including him, for alleged\nviolation of the Code. 3 The draft meeting minutes and the verbatim recording of the meeting\ndocument that pursuant to this agenda item, the Mayor 4 read a statement in which he notified the\nBoard of the formal complaint. Then Mr. Robert Long, the Village attorney, stated that he would\n2Village of Antioch, Lake County, Illinois, Village Board of Trustees; Regular Meeting, Agenda\nItem VI.14 ( December 14, 2020).\n3Letter from Scott A. Pierce, Village of Antioch, Trustee, to Sarah Pratt, Public Access Counselor,\nOffice of the Attorney General ( December 16, 2020) at 1. Although Mr. Pierce did not specifically identify the\nexact nature of the violation, a review of the draft minutes and verbatim recording of the meeting indicates that the\nalleged violation was of the Code.\n4The Mayor at the time of the December 14, 2020, meeting was the Honorable Lawrence Hanson.\n\n\fThe Honorable Scott A. Pierce\nThe Honorable Scott J. Gartner\nFebruary 22, 2022\nPage 3\n\nrecuse himself from investigating the complaint as it would be inappropriate for him, as Village\nattorney, to investigate three of its Board members. The agenda item properly identified these\ndiscussions.\nHowever, there is nothing in the wording of Agenda Item IV.14 or in any other\nagenda item that provided notice to the public that the Board might consider the merits of the\nunderlying complaint and take action on that complaint. The draft meeting minutes and the\nverbatim recording show that the Board heard statements from the complainant and the trustees,\nand discussed whether three of the trustees violated the Code. The Board then considered three\nseparate motions and voted to find that each of the three trustees violated the Code. 5 A member\nof the public reading the agenda before the Board' s December 14, 2020, meeting would not have\nhad advance notice that the Board planned to make a final determination as to whether three of\nits trustees violated the Code.\nThe Board argues that section 2.02(c) of OMA requires an agenda set forth the\ngeneral subject matter only of each \" resolution or ordinance that will be the subject of final\naction at the meeting,\" 6 and that \" a mere simple motion by one trustee to call into question the\nbehavior of three of his colleagues\" does not constitute \" final action.\" 7 The Board further argues\nthat the Board did not pass a resolution or ordinance, and that the Village' s Ethics Ordinance\nrequires a formalized process, including a complaint, a formal hearing, and a final finding[,]\"\nbut that no such hearing was held. 8\nOMA does not define \" final action,\" and no Illinois court has precisely defined\nthat term. Generally, however, final action can be said to occur when a vote in open session\nresolves a matter and stands on its own, rather than serving as an interim, non- dispositive step in\na broader decision- making process. Compare Board of Education of Springfield School District\nNo. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 74, 77 N.E.3d 625, 637- 38 (2017)\nvote to approve separation agreement in open session is final action) with Gosnell, 179 Ill. App.\n3d at 176 ( request for mediation was a component of public body' s process of reaching final\naction on a union contract, rather than final action in and of itself.).\n5The Board provided for this office's confidential review a copy of the draft minutes of the\nDecember 14, 2020, meeting. An Assistant Attorney General in the Public Access Bureau reviewed the Village' s\nwebsite, but was not able to locate a copy of the approved minutes from that meeting.\n65 ILCS 120/2.02(c) (West 2020).\n7Letter from Robert J. Long, Village Attorney, to Grace Angelos, Assistant Attorney General\nJanuary 26, 2021) at 5-6.\n8Letter from Robert J. Long, Village Attorney, to Grace Angelos, Assistant Attorney General\nJanuary 26, 2021) at 5-6.\n\n\fThe Honorable Scott A. Pierce\nThe Honorable Scott J. Gartner\nFebruary 22, 2022\nPage 4\n\nThe Board' s characterization of the December 14, 2020, meeting downplays the\nBoard' s actions that evening. As described above, the Board not only gave lengthy consideration\nof the citizen complaint, but also heard a motion, accepted a second of that motion, and then took\na vote to approve a motion stating that a trustee violated the Code. The Board then repeated that\nprocedure two more times, for the other two trustees. There is no indication that this was a\ntentative or preliminary consensus–– each of these votes appear to have resolved the question of\nwhether each of the trustees violated the Code. To the extent the presentations made during the\nmeeting and the Board' s deliberation of those findings prior to its votes did not satisfy the\nrequirement in the Village Code that it hold a \" formal hearing,\" the Board' s failure to do so does\nnot mean that its three votes did not constitute \" final action\" for purposes of OMA. In arguing\nthat its vote was not a \" final action,\" the Board also emphasizes that none of the trustees were\ncensured or otherwise sanctioned as a result of its findings. However, the Code does not require\nthe imposition of sanctions for all findings of violations. 9 Moreover, a finding that a public\nofficial violated the Code is a dispositive step under the Code; the lack of consequence or penalty\nfollowing that finding does not render the finding any less of a \" final action\" under OMA.\nUnder these circumstances, this office concludes that the Board violated section\n2.02(c) of OMA in connection with its December 14, 2020, meeting by voting to find three of its\ntrustees in violation of its Code without having listed the general subject matter of those final\nactions on the meeting agenda. To remedy this violation, this office requests that the Board\nreconsider and revote on the matter regarding the complaint after providing proper advance\nnotice for those actions, if it wishes to maintain this finding against the three trustees.\nFinally, the Public Access Counselor' s authority is limited to resolving disputes\nconcerning OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. ( West 2020)). To\nthe extent Trustee Pierce' s Requests for Review alleges violations of laws other than FOIA or\nOMA, the Public Access Counselor does not have authority to review those allegations.\n\n9Section 1 of the Code states in pertinent part \"[ i]f there is deliberate violation of principals and\nguidelines set out herein, a Public Official may be subject to sanctions.\" ( Emphasis added).\n\n\fhe Honorable Scott A. Pierce\nThe Honorable Scott J. Gartner\nFebruary 22, 2022\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (312)\n814- 4467 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n66200 o 202c improper mun\ncc:\n\nVia electronic mail\nMr. James M. Vasselli\nVillage Attorney\nDel Galdo Law Group, LLC\n111 North Wabash Avenue, Suite 908\nChicago, Illinois 60602\nvasselli@dlglawgroup. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's agenda description of trustee discipline","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66200/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKwame Raoul\nATTORNEY GENERAL\n\nFebruary 22, 2022\n\nVia electronic mail\nThe Honorable Scott A. Pierce\nMember, Board of Trustees\nVillage of Antioch\n\nVia electronic mail\nThe Honorable Scott J. Gartner\nMayor\nVillage of Antioch\n[street address redacted for site publication -- see original PDF]\nsgartner@antioch. il.gov\nRE: OMA Request for Review – 2020 PAC 66200\nDear Trustee Pierce and Mayor Gartner:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons discussed below, the Public Access\nBureau concludes that the Village of Antioch (Village) Board of Trustees (Board) violated the\nOpen Meetings Act (OMA) (5 ILCS 120/ 1 et seq. (West 2020)) during its December 14, 2020,\nmeeting.\nOn December 17, 2020, Trustee Scott Pierce submitted a Request for Review\nalleging that the Board's December 14, 2020, meeting agenda did not adequately identify the\ngeneral subject matter of the Board's action to find him and two other Village trustees in\nviolation of the Village's Code of Behavior and Conduct for Village Elected and Appointed\nOfficials (Code). 1 On December 30, 2020, this office forwarded a copy of the Request for\nReview to the Board and asked it to provide a written response to the allegations, together with\ncopies of the agenda, meeting minutes (draft form, if necessary), and a verbatim recording of the\nDecember 14, 2020, meeting, if such a recording existed. On January 26, 2021, the Board\n1 Village of Anticoch Code of Behavior and Conduct for Village Elected and Appointed Officials,\nResolution No. 20-16, passed March 9, 2020.\n\nsubmitted a written response and furnished the requested meeting materials. On the same date,\nthis office forwarded a copy of the Board's response to Trustee Pierce with an opportunity to\nreply; he submitted a reply on January 28, 2021.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989). Section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)) provides\nthat \"[ a] ny agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis\nadded.) The Senate debate on House Bill No. 4687, which was enacted as Public Act 97-827,\neffective January 1, 2013, adding section 2.02(c) of OMA, indicates that the General Assembly\nintended this provision to ensure that agendas provide sufficiently descriptive advance notice of\nthe matters upon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific [ the public\nbody] needed to be to the public of what they were going to\ndiscuss that would be final action. And this just says that you have\nto have a * * * general notice if you're going to have and take final\naction, as to generally what's going to be discussed so that – that\npeople who follow their units of local government know what\nthey're going to be acting upon. Remarks of Sen. Dillard, May 16,\n2012, Senate Debate on House Bill No. 4687, at 47.\nItem VI.14 of the December 14, 2020, meeting agenda identifies the matter to be\nconsidered as \"[ d]iscussion of retaining independent counsel due to the ethical recusal of the\nVillage Attorney on a matter.\" 2 Trustee Pierce stated that the inclusion of this agenda item arose\nas a result of a complaint filed by a citizen against three trustees, including him, for alleged\nviolation of the Code. 3 The draft meeting minutes and the verbatim recording of the meeting\ndocument that pursuant to this agenda item, the Mayor 4 read a statement in which he notified the\nBoard of the formal complaint. Then Mr. Robert Long, the Village attorney, stated that he would\n2 Village of Antioch, Lake County, Illinois, Village Board of Trustees; Regular Meeting, Agenda\nItem VI.14 (December 14, 2020).\n3 Letter from Scott A. Pierce, Village of Antioch, Trustee, to Sarah Pratt, Public Access Counselor,\nOffice of the Attorney General (December 16, 2020) at 1. Although Mr. Pierce did not specifically identify the\nexact nature of the violation, a review of the draft minutes and verbatim recording of the meeting indicates that the\nalleged violation was of the Code.\n4 The Mayor at the time of the December 14, 2020, meeting was the Honorable Lawrence Hanson.\n\nrecuse himself from investigating the complaint as it would be inappropriate for him, as Village\nattorney, to investigate three of its Board members. The agenda item properly identified these\ndiscussions.\nHowever, there is nothing in the wording of Agenda Item IV.14 or in any other\nagenda item that provided notice to the public that the Board might consider the merits of the\nunderlying complaint and take action on that complaint. The draft meeting minutes and the\nverbatim recording show that the Board heard statements from the complainant and the trustees,\nand discussed whether three of the trustees violated the Code. The Board then considered three\nseparate motions and voted to find that each of the three trustees violated the Code. 5 A member\nof the public reading the agenda before the Board's December 14, 2020, meeting would not have\nhad advance notice that the Board planned to make a final determination as to whether three of\nits trustees violated the Code.\nThe Board argues that section 2.02(c) of OMA requires an agenda set forth the\ngeneral subject matter only of each \" resolution or ordinance that will be the subject of final\naction at the meeting,\" 6 and that \" a mere simple motion by one trustee to call into question the\nbehavior of three of his colleagues\" does not constitute \" final action.\" 7 The Board further argues\nthat the Board did not pass a resolution or ordinance, and that the Village's Ethics Ordinance\nrequires a formalized process, including a complaint, a formal hearing, and a final finding[,]\"\nbut that no such hearing was held. 8\nOMA does not define \" final action,\" and no Illinois court has precisely defined\nthat term. Generally, however, final action can be said to occur when a vote in open session\nresolves a matter and stands on its own, rather than serving as an interim, non- dispositive step in\na broader decision- making process. Compare Board of Education of Springfield School District\nNo. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 74, 77 N.E.3d 625, 637- 38 (2017)\nvote to approve separation agreement in open session is final action) with Gosnell, 179 Ill. App.\n3d at 176 (request for mediation was a component of public body's process of reaching final\naction on a union contract, rather than final action in and of itself.).\n5 The Board provided for this office's confidential review a copy of the draft minutes of the\nDecember 14, 2020, meeting. An Assistant Attorney General in the Public Access Bureau reviewed the Village's\nwebsite, but was not able to locate a copy of the approved minutes from that meeting.\n65 ILCS 120/2.02(c) (West 2020).\n7 Letter from Robert J. Long, Village Attorney, to Grace Angelos, Assistant Attorney General\nJanuary 26, 2021) at 5-6.\n8 Letter from Robert J. Long, Village Attorney, to Grace Angelos, Assistant Attorney General\n\nThe Board's characterization of the December 14, 2020, meeting downplays the\nBoard's actions that evening. As described above, the Board not only gave lengthy consideration\nof the citizen complaint, but also heard a motion, accepted a second of that motion, and then took\na vote to approve a motion stating that a trustee violated the Code. The Board then repeated that\nprocedure two more times, for the other two trustees. There is no indication that this was a\ntentative or preliminary consensus–– each of these votes appear to have resolved the question of\nwhether each of the trustees violated the Code. To the extent the presentations made during the\nmeeting and the Board's deliberation of those findings prior to its votes did not satisfy the\nrequirement in the Village Code that it hold a \" formal hearing,\" the Board's failure to do so does\nnot mean that its three votes did not constitute \" final action\" for purposes of OMA. In arguing\nthat its vote was not a \" final action,\" the Board also emphasizes that none of the trustees were\ncensured or otherwise sanctioned as a result of its findings. However, the Code does not require\nthe imposition of sanctions for all findings of violations. 9 Moreover, a finding that a public\nofficial violated the Code is a dispositive step under the Code; the lack of consequence or penalty\nfollowing that finding does not render the finding any less of a \" final action\" under OMA.\nUnder these circumstances, this office concludes that the Board violated section\n2.02(c) of OMA in connection with its December 14, 2020, meeting by voting to find three of its\ntrustees in violation of its Code without having listed the general subject matter of those final\nactions on the meeting agenda. To remedy this violation, this office requests that the Board\nreconsider and revote on the matter regarding the complaint after providing proper advance\nnotice for those actions, if it wishes to maintain this finding against the three trustees.\nFinally, the Public Access Counselor's authority is limited to resolving disputes\nconcerning OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2020)). To\nthe extent Trustee Pierce's Requests for Review alleges violations of laws other than FOIA or\nOMA, the Public Access Counselor does not have authority to review those allegations.\n\n9 Section 1 of the Code states in pertinent part \"[ i]f there is deliberate violation of principals and\nguidelines set out herein, a Public Official may be subject to sanctions.\" (Emphasis added).\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (312)\n814- 4467 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n66200 o 202c improper mun\ncc:\n\nVia electronic mail\nMr. James M. Vasselli\nVillage Attorney\nDel Galdo Law Group, LLC\n111 North Wabash Avenue, Suite 908\nChicago, Illinois 60602\nvasselli@dlglawgroup. com"}
{"id":1349,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-11-04","case_number":null,"request_numbers":["66444"],"title":"Homewood-Flossmoor School District 233 violated OMA by refusing to read a public comment","filename":"66444, issued November 4, 2021.pdf","rel_path":null,"word_count":4615,"summary":"A requester alleged that the Homewood-Flossmoor School District 233 Board of Education violated the Open Meetings Act by refusing to read a submitted public comment during a meeting. The PAC determined that the Board's refusal to read the comment based on its content violated the Act's requirements for public comment.","plain_summary":"A member of the public submitted a comment by email to the Homewood-Flossmoor School District 233 Board of Education for its November 17, 2020, meeting. The board read aloud three of the four comments it received but refused to read one, stating it was 'not reflective of the level of discourse expected at board meetings.' The Illinois Attorney General's office concluded that the board violated the Open Meetings Act by refusing to read that comment, based on the specific facts of the case. The determination did not establish a general rule about censoring comments based on content or tone.","holding":"The Homewood-Flossmoor School District 233 Board of Education violated the Open Meetings Act at its November 17, 2020, meeting when it refused to read one of the four comments it received in advance of the meeting.","legal_question":"Whether a public body violates the Open Meetings Act by refusing to read a submitted public comment during a meeting because the board deems the content inappropriate.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Homewood-Flossmoor School District 233 Board of Education","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The Board refused to read a submitted public comment during a meeting because it criticized a board member.","ocr_status":"reocr_tesseract","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/66444, issued November 4, 2021.pdf","sha256":"d42d917d19c836221b305e77f9286a29c903511d6ce72d1ac56282087a20978a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","school board","meeting rules","freedom of speech"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nNovember\n\n4, 2021\n\nVia electronic mail\n\nVia electronic mail\nMs. Mallory A. Milluzzi\nKlein, Thorpe and Jenkins, Ltd.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606- 2903\nmamilluzzi@ktjlaw.\n\ncom\n\nRe: OMA Request for Review – 2021 PAC 66444\n\nDear\n\nand Ms. Milluzzi:\n\nThis determination\n\nis issued pursuant to section 3.5( e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5( e) ( West 2020)).\nthat Homewood- Flossmoor\nOMA at its November\n\nFor the reasons discussed\n\nbelow, this office concludes\n\nSchool District 233 ( District) Board of Education ( Board) violated\n\n17, 2020, meeting when it refused to read one of the four comments\n\nit\n\nreceived in advance of the meeting.\n\nOn January 10, 2021,\n\nsubmitted\n\na Request for Review\n\nalleging that the Board violated OMA ( 5 ILCS 120/ 2.06( g) ( West 2020)) at its November\n\n17,\n\n2020, meeting when it refused to read aloud during the meeting the comment he had submitted\nthe Board by e- mail.\n\nIn support of his Request for Review,\n\nthe Board meeting, which document\nmembers\n\nthat is expected\n\nattached the minutes of\n\nthat the Board read aloud three comments\n\nof the public but declined to read one comment\n\nlevel of discourse\n\nor encouraged\n\nsubmitted\n\nbecause it was \" not reflective\n\nat board meetings.\"\n\nby\n\nof the\n\n1\n\n1Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Minutes 2 (attached to E-mail from\n\n500 South\n\nSecond\n\nStreet,\n\n100 West Randolph\n601 South University\n\nSpringfield,\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nto Public Access ( January 10, 2021)).\n\nIllinois\n\n62701 • (\n\n217) 782- 1090 •\n\nTTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\nIllinois\n\n60601 • ( 312) 814- 3000 •\n\nTTY: ( 800) 964- 3013 •\n\nFax: ( 312) 814- 3806\n\nIllinois\n\n62901 • ( 618) 529- 6400 •\n\nto\n\nTTY: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 2\n\nOn January 19, 2021, this office forwarded\nthe Board and requested\ncopies of the agenda,\n\nthat it provide\n\nminutes,\n\na detailed\n\na copy of the Request\n\nwritten response\n\nany audio or video recordings\n\nmeeting,\n\nand its rules for public comment.\n\nresponse\n\nand the requested\n\nfor Review to\n\nto the allegation,\n\nof the November\n\nalong with\n\n17, 2020,\n\nOn January 28, 2021, the Board submitted\n\nmaterials.\n\nreplied to the Board' s response\n\na written\n\non February\n\n10, 2021.\n\nDETERMINATION\n\nSection 2.06( g) of OMA provides\nopportunity\n\nto address public officials\n\nbody.\" ( Emphasis\nestablish\n\nadded.)\n\nthat \"[ a] ny person shall be permitted\n\nunder the rules established\n\nUnder the plain language\n\nAtt' y Gen. Pub. Acc. Op. No. 14- 009, issued September\n\nThe Board explained\n\nreceived\n\nat its meetings,\n\npermission\n\npresentation\n\nin advance\n\nof \" repetitious\"\n\nspeakers\n\nof the meeting\n\nmaterial.\n\nonly pursuant\n\nto those rules.\n\nSee Ill.\n\n2, 2014, at 7.\n\nthat it has established\n\naffording\n\nan\n\nby the public\n\nof section 2.06( g), a public body must\n\nand record rules and may restrict public comment\n\nparticipation\n\nand recorded\n\nand recorded\n\nfive minutes\n\nrules for public\n\nunless they have requested\n\nto speak for longer and prohibiting\n\nThe Board also explained\n\nand\n\nthe\n\nthat it has adopted\n\nRobert' s\n\nRules of Order, and asserted:\n\nRobert' s Rule of Order No. 7 states \" Speakers\n\nmust address their\n\nremarks\n\nin their language\n\nto the presiding\n\ndeportment,\nofficers\n\nor other members\n\nto the motives\n\nnever alluding\n\nby name, where possible\n\nof members.\"\n\nand\n\nto the\n\nto avoid it, nor\n\nRule No. 7 further provides: \"\n\nDebate\n\nmust address issues not personalities\n\nand that no one is permitted\n\nto make personal\n\nthe motives\n\nattacks or question\n\nspeakers.\"\n\nThese rules govern decorum\n\nparticipate\n\nin a School District Board Meeting,\n\nparticipations\n\nThe November\npandemic\n\nofficer, be courteous\n\nand avoid all personalities,\n\nduring Citizens\n\n17, 2020, meeting\n\nand the Board' s agenda provided\n\npublic access to the meeting.\n\nConcerns\n\nof other\n\nfor anyone who wishes to\nincluding\n\nand Comments.[\n\nwas held remotely\n\ncitizens'\n2]\n\ndue to the COVID- 19\n\nboth a Zoom link and a telephone\n\nWith respect to public comment,\n\nnumber\n\nto facilitate\n\nthe agenda provided:\n\n2Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 3\n\nMembers\n\nof the public may comment\n\nagenda items via email.\n\nPublic comment\n\nemail in advance\n\nto boardcomments@hf223.\n\nmust be received\n\nby 4: 00 p.m. Tuesday,\n\nEmailed\n\npublic comments\n\nNovember\n\non agenda and non-\n\nwill be accessible\norg.\n\nDespite\n\nthese instructions,\nmembers\n\n17, 2020.\n\nwill be read out loud during the\n\n17, 2020, Board of Education\n\nsection will be limited to 30 minutes.[\n\nrule allowing\n\nPublic comments\n\nNovember\n\nmeeting.\n\nbe read out loud in the order they were received\n\nrecorded\n\nby\n\nComments\n\nwill\n\nand the comment\n\n3]\n\nthe Board noted to this office that it does not have a\n\nof the public to have their comments\n\nread aloud, and further\n\nargued:\n\nWhile in practice,\n\nthe School District has allowed\n\npublic to submit email comments,\nmake them automatic. * * *\ndoes not have a recorded\ntheir public comments\n\nTherefore,\n\nsubmitted\n\nrules.[\n\nthe public the opportunity\n\nof the\n\nsince the School District\nthe right to have\n\nvia email and read aloud, the\nOMA, as the District did not\n\n4]\n\nThe Board further argued that it complied\nby offering\n\nmembers\n\nrules does [ sic] not\n\nrule that gives citizens\n\nPAC cannot find that it violated\nviolate its recorded\n\nits recorded\n\nto comment\n\nwith its established\n\nduring the meeting\n\nand recorded\n\nrules\n\non Zoom, and that\n\ncould have read his e- mail himself at that time.\n\nIn his reply,\ncomments\n\nduring the meeting\n\nestablished\n\nand recorded\n\nor video conference\nchanged\n\ncontests\n\nthe assertion\n\nlive on Zoom.\n\nrules about furnishing\n\npublic comments\n\nduring the COVID- 19 pandemic\n\nas of the Board' s July 12, 2020, meeting,\n\nconference\n\nto holding meetings\n\nthe Zoom meetings\nparticipants\n\non Zoom.\n\nthat he could have provided\n\nduring meetings\n\nheld by audio\n\nand that its process for accepting\n\nwhen it switched\n\nfrom meetings\n\ncomments\n\nby audio\n\nasserts that he is a \" phone participant\"\n\nand that the Board does not provide the same opportunity\n\nto voice their comments\n\nhis\n\nstates that the Board has not\n\nas Zoom video participants.\n\nFinally,\n\nin\n\nfor phone\nargues\n\n3Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n4Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 4\n\nthat the agenda for the Board' s November\npublic comment,\n\nThe minutes\nmember\n\nor encouraged\n\nwith legal counsel,\nwill entertain\nAlthough\n\nit was determined\n\nnot reflected\n\ncomment\n\nin the minutes,\n\nduring the meeting\n\naudio recording\n\nindicates\n\ndocument\n\nthat a Board\n\nof the level of discourse\n\nThe Board member\n\nthat is\n\nthen stated that after consulting\n\nthat the comment\n\nwould not be read but that \"[ t]he board\n\nby that member\n\nof the public as is appropriate.\"\n\nthe audio recording\n\nof the November\n\nthat it offered an opportunity\n\nfor members\n\n5\n\n17, 2020, meeting\n\nof the public to\n\nafter the Board had read three of the e- mailed comments.\n\nthat the Board asked members\n\nZoom if they wished to provide\nrecognized\n\nfor providing\n\nby e- mail.\n\nby e- mail, and stated that he would not\n\nit is not reflective\n\nat board meetings.\"\n\nan appropriate\n\nsets forth instructions\nsubmitted\n\n17, 2020, meeting\n\nthe Board received\n\nreceived \" because\n\nsupports the Board' s statement\ncomment\n\nonly comments\n\nof the Board' s November\n\nread aloud three comments\n\nread one of the comments\nexpected\n\n17, 2020, meeting\n\nand that agenda discusses\n\ncomment.\n\nAfter allowing\n\none person ( who did not provide\n\nThe\n\nof the public to raise their hands on\n\na substantive\n\nthat opportunity,\ncomment),\n\nthe Board President\n\nstated that he did not see\n\nany other hands raised, and moved on to the next item.\n\nTo make it possible\n19 pandemic,\nrequirement\nAssembly\n\nGovernor\n\nPritzker\n\nfor public bodies to continue\n\nissued executive\n\nand rules for remote participation\nsubsequently\n\nhold remote meetings\n\namended\nwithout\n\npublic health emergencies.\n\n7\n\nof the pandemic\n\nprior to a meeting\ntelephone\n\nor on video conference\n\nviolated\n\nof the comments\n\nto incorporate\n\nhave evolved\n\nplatforms\n\nThe General\n\nfor public bodies to be able to\n\nhas remained\n\npublic comment\n\nover time, including\n\nduring designated\n\nfor Review,\n\n6\n\nof a quorum of their members\n\nduring such\n\nunchanged.\n\nin their meetings\n\naccepting\n\nand reading them aloud, and inviting contemporaneous\n\nIn a prior Request\ncommittee\n\npresence\n\nduring the COVID-\n\nOMA' s in- person quorum\n\nof public bodies.\n\nSection 2.06( g) of OMA, however,\n\nPublic bodies have used various methods\ncircumstances\n\norders relaxing\n\nby members\n\nOMA to create a framework\n\nthe physical\n\nto function\n\nas the\n\nwritten comments\n\ncomments\n\npublic comment\n\nby\n\nperiods.\n\nthe Public Access Bureau determined\n\nthat a\n\nsection 2.06( g) of OMA when it failed to read aloud during the meeting\n\nit had received\n\nby e- mail prior to the meeting.\n\nLtr. 62755, issued July 15, 2020.\n5Homewood- Flossmoor\n\nmost\n\nIll. Att' y Gen. PAC Req. Rev.\n\nIn that matter, the agenda for the meeting\nHigh School District 233 Board of Education,\n\nhad notified the\n\nMeeting, November\n\n17,\n\n2020, Minutes 2.\n6See Executive Order 2020- 07, § 6, issued March 16, 2020; Executive Order 2020- 18, Part 1,\nissued April 1, 2020; Executive Order 2020- 33, Part 1, issued April 30, 2020; Executive Order 2020- 39, Part 1,\nissued May 29, 2020.\n7See Public Act 101- 640, effective June 12, 2020 ( adding section 7(e) to OMA).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 5\n\npublic that it should submit comments\nchair would read the submitted\n\nby e- mail prior to the meeting\n\ncomments.\n\n15, 2020, at 7. Taking into account\n\nthese instructions\n\nand the fact that the committee\n\ngrant the public any other opportunity\n\nto provide comment\n\nconcluded\n\nOMA when it decided\n\nreceived\n\nthat the committee\nfrom the public.\n\nviolated\n\nand that the committee\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 62755, issued July\n\nduring the meeting,\n\ndid not\n\nthis office\n\nto read only one of 42 comments\n\nSee also Ill. Att' y Gen. PAC Req. Rev. Ltr. 66704, issued July 7, 2021, at 5 ( concluding\nvillage board violated\nduring a meeting\nboard provided\n\nthe public that comments\n\nwould be read and the\n\npublic no other means to address it during the meeting).\n\nHowever,\n\nthe Public Access Bureau has also determined\n\nthat section 2.06( g) does\n\nsubmitted\n\nagenda,\n\nduring remote meetings\n\nnotice, and stated procedures\n\nfor commenting\n\nthe public body' s use of the e- mailed comments,\ncomment,\n\nduring a meeting.\n\nSeptember\n\n24, 2020, at 3- 4 ( meeting\n\nnotice was ambiguous\n\nprocedures\n\nas to whether\n\nindividuals\n\nfor public comment\n\nto provide\n\nit received\n\nnot to read aloud\n\ne- mailed comments\ncomment\n\nin- person at\n\ndid not state that e- mailed comments\n\ncomments\n\nby telephone\n\nduring the meeting).\n\nthat section 2.06( g) did not require a public body to read out loud\n\nto it when doing so would have impeded\n\nand the public body allowed\n\nmailed comments\n\nmethods\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 63402, issued August 21,\n\nwould be read aloud and public body also permitted\nThis office also determined\n\nare silent about\n\nSee e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 64882, issued\n\nvillage hall and over the phone);\n2020, at 2- 3 ( temporary\n\nWhere the\n\nand the public body offers alternative\n\nwould be read aloud, and the public body permitted\n\n770 e- mails submitted\n\nto it by e- mail.\n\na public body does not violate OMA when it chooses\n\ncomments\n\nmeeting,\n\nthat\n\nsection 2.06( g) of OMA when it voted against reading e- mailed comments\n\nbut the agenda had informed\n\nnot require every public body to read every comment\n\nfor providing\n\nit\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 62755, issued July 15, 2020, at 7.\n\navailable\n\npublic comment\n\nthe orderly progress\n\non Zoom and telephone,\n\nonline for public inspection.\n\nof the\n\nand made all e-\n\nIll. Att' y Gen. PAC Req.\n\nRev. Ltr. 66997, issued March 9, 2021, at 2- 3.\n\nHere, the agenda for the November\ncomments\n\nsubmitted\n\nEducation\n\nmeeting.\"\n\nOMA.\n\nspecific\n\nto meetings\n\npermitted\n\nmembers\n\ngenerally,\nresponse\n\nstated expressly\n\nby e- mail would \" be read out loud during the November\n8\n\nThe Board argues that because\n\nand not in its established\nviolated\n\n17, 2020, meeting\n\nand recorded\n\nthat representation\n\npublic comment\n\nhowever,\n\nheld by video and audio conference,\n\nhas read those comments\n\non the agenda\n\nand the Board nevertheless\n\nhas\nand\n\nIn fact, the Board acknowledges\nsubmitted\n\nthat it\n\ndo not contain any procedures\n\nby e- mail for those meetings,\n\nduring the meeting.\n\nto this office that it has read aloud comments\n\n17, 2020, Board of\n\nappeared\n\nrules, this office cannot conclude\n\nThe Board' s rules for public comment,\n\nof the public to submit comments\n\nthat\n\nby\n\nin its\n\nat meetings\n\n8Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 6\n\nboth before and after the November\nBoard to permit a commenter\nits rules.\n\n17, 2020, meeting.\n\nto participate\n\nOMA would not necessarily\n\nin public comment\n\nYet, here, where the Board notified the public on the agenda of its upcoming\n\nthat it would accept e- mailed comments\n\nand read them aloud at that meeting,\n\nrelied on that method would be deprived\n\nof their statutory\n\nwithout valid justification\n\nneutrally.\n\nThe Board followed\n\ncomments\n\nit received\n\nof a public comment\n\nthe instructions\n\nfor the November\n\nwho\n\nto raise their hands on Zoom and read their comments\nof alternative\n\nof addressing\n\nto read aloud comments\n\ninstructions\n\nand read all other\n\nit did not require any of the other\n\navailability\n\nmethods\n\nperiod during the\n\nto apply its procedures\n\non its agenda and accepted\n\n17, 2020, meeting;\n\ncommenters\n\nbody to disregard\n\nmeeting\n\nindividuals\n\nright to address the Board if it refused\n\nthrough Zoom does not relieve the Board of the obligation\n\nmatter, of the obligation\n\nin\n\nto read their comments.\n\nFor that same reason, the availability\nmeeting\n\nrequire the\n\nthrough a method not outlined\n\nthemselves.\n\nAlthough\n\nthe\n\nthe public body may relieve it, as a general\nreceived\n\nin writing, OMA does not allow the\n\non its agenda that members\n\nof the public relied upon to provide\n\npublic comment.\n\nAlternatively,\n\nthe Board argues that it was allowed\n\ne- mailed comment\n\nbecause\n\nslanderous\n\nabout individuals\n\nremarks\n\nas School District officials.\"\nviolated\n\nits established\n\nit was a \" personal\n9\n\nattack[ ]\n\nand political\n\nthat are not relevant\n\nFor those reasons,\n\nand recorded\n\nto refuse to read\ncampaigning\"\n\nto their performance\n\nand \" personal,\n\nor qualifications\n\nthe Board argues that\n\nrules, and that OMA authorized\n\ncomment\n\nit to prohibit\n\ncomment.\n\nThe Attorney\nauthority\n\nto conduct\n\nGeneral\n\na meeting\n\nNo. 19- 002, issued January\n\nconcluded\n\nthat a public body has inherent\n\nand orderly manner.\n\n9, 2019, at 6- 7. Although\n\na public body may permissibly\npublic meetings\n\nhas previously\n\nin an efficient\n\nSee Ill. Att' y Pub. Acc. Op.\n\nOMA does not specify the nature of rules\n\nadopt, a board may adopt rules to maintain\n\nto ensure that meetings\n\nare conducted\n\nefficiently.\n\norder and decorum\n\nat\n\nSee Timmon v. Wood, 633 F.\n\nSupp. 2d 453, 465 ( W. D. Mich. 2008); see also Ill. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5 ( a\npublic body may promulgate\norder and decorum).\nunreasonably\n\nreasonable \"\n\nHowever,\n\ntime, place and manner\"\n\nrules aimed at preserving\n\nsuch rules must tend to accommodate,\n\nrestrict, the right to address public officials.\n\nrather than to\n\nSee I.A Rana Enterprises,\n\nInc. v. City\n\nof Aurora, 630 F. Supp. 2d 912, at 923- 25 ( N. D. Ill. 2009).\n\n9Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 7\n\nAlthough\nrestrictions\n\na public body may enforce rules regarding\n\nmust be narrowly\n\nconstrued.\n\ndecorum,\n\nSee I.A Rana Enterprises,\n\nSupp. 2d 912, 922- 23 ( N.D. Ill. 2009) (\" Any content- based restrictions,\nreference\n\nto the content of the speech being restricted,\nstate interest and be narrowly\n\ngovern the decorum\n\nof a meeting\n\nare permitted\n\nonly if they are directed\n\nactually disturbing\n\nor impeding\n\na meeting[.]\" (\n\nEmphasis\n\nremoval\n\nof individuals\n\nmeeting);\n\nfor proscribed\n\nthat purpose.\").\n\nadded.)\n\nunconstitutional\n\nRules that\n\nto conduct\n\nwhich is\n\nAcosta v. City of Costa Mesa,\n\nbecause\n\nit provided\n\neven if those remarks\n\nEven in a limited public forum like a city council meeting,\n\ntightly constrains\ndisruptive.\").\ncomments\n\nthe government'\n\ns power; speakers\n\nThat is not to suggest,\n\nhowever,\n\nto cause an actual outburst\n\nfor the\n\ndid not disrupt a\n\nbecome \" disruptive\"\n\nmeeting\n\nimmediate\n\nCouncil\n\nmeeting\n\nor by extended\n\nby speaking\ndiscussion\n\nbecause\n\nbusiness\n\nin a reasonably\n\nNorwalk,\n\nor of \" fighting\n\nwords\"\n\nlikely to\n\nA speaker may disrupt a\n\ntoo long, by being unduly repetitious,\n\nof irrelevancies.\n\nthe Council\n\nThe meeting\n\nis prevented\n\nefficient\n\nmanner.\n\nis\n\nfrom accomplishing\n\nits\n\nIndeed, such conduct\n\nwith the rights of other speakers.\n\nWhite v. City of\n\n900 F.2d 1421, 1425 ( 9th Cir. 1990).\n\nAt the same time, comments\nmatters of public concern are protected\n\nduring a city council meeting\n\nby the first amendment\n\neven if the speaker' s \" motive in commenting * * *\npersonal\n\nattack[.]\"\n\nBecause\n\nit would be illogical\n\nunconstitutional\n\nthem:\n\nmeans that a speaker can\n\ncombat. [ Citation.]\n\ndisrupted\n\nmay interfere\n\nonly if they are actually\n\nin ways that would not meet the test of actual\n\nbreach of the peace, [ citation],\nprovoke\n\nmay be removed\n\nA.,\n\nthe First Amendment\n\nthat a public body must wait for a speaker' s\n\nbefore restricting\n\nT] he nature of a Council\n\nwith\nand must\n\nNorse v. City of Santa Cruz, 629 F.3d 966, 979 ( 9th Cir. 2010) ( Kozinski,\n\nconcurring) (\"\n\nAccess\n\ndrawn to achieve\n\ntypes of remarks\n\npromulgated\n\nare subject to strict scrutiny,\n\nserve a compelling\n\n718 F.3d 800, 811 ( 9th Cir. 2013) ( ordinance\n\ncontent- based\n\nInc. v. City of Aurora, 630 F.\n\nwhich pertain to\n\nto the United States Constitution\n\ncould be an insensitive,\n\nmean spirited,\n\nGault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 ( W. D. Mich. 1999).\n\nrestrictions\n\nto construe\n\nOMA as permitting\n\non members\n\nof the public addressing\n\nBureau has previously\n\ndetermined\n\na public body to impose\npublic officials,\n\nthe Public\n\nthat section 2. 06( g) of OMA does not permit a public\n\nbody to apply public comment\n\nrules that are susceptible\n\nto overbroad\n\ncomments\n\ndisrupt public meetings.\n\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr.\n\nthat do not actually\n\n39069, issued April 5, 2016, at 3- 4 ( finding public body violated\nprohibited \"\n\npersonal\n\nattacks against others\"\n\nThe Board argues that\nrecorded\n\npublic comment\n\nor \" rude or slanderous\n\nOMA by imposing\n\napplication\n\nto\n\nrule that\n\nremarks\").\n\nwritten comment\n\nrule, and that its rule is permissible\n\nand arbitrary\n\nviolated\n\nits established\n\nunder section 2.06( g) of OMA\n\nand\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 8\n\nbecause\n\nit is \" content and viewpoint\n\nmaintaining\n\ncivility and decorum.\"\n\nbylaws pertaining\nand prohibits\n\nneutral and serve[ s] the significant\n10\n\nAs explained\n\nto visitors addressing\n\nthe presentation\n\nthe Board adopted\n\nmaterial,\"\n\nincluding\n\ncitizens\n\ncourteous\n\nin their language\n\ndecorum\n\naddressing\n\nfor anyone\n\n11\n\nand that rule requires\n\nand] that no one is permitted\n\nof other speakers.\"\n\nto five minutes\nthat\n\nThe Board asserts that Rule 7 of\n\nwho wishes to participate\n\nBoard members,\n\nand deportment, [\n\nthe motives\n\ninterest of\n\nbut that those bylaws also document\n\nRobert' s Rules of Order ( Bylaw II.B.4).\n\nmeeting,\n\nattacks or question\n\nthe Board ( Bylaw II.B.5) limits speakers\n\nof \" repetitious\n\nRobert' s Rule of Order governs\n\ngovernment\n\nabove, the Board asserts that the section of its\n\nin a Board\nspeakers\n\nto \" be\n\nto make personal\n\n12\n\nAs an initial matter, this office notes that the Board' s bylaw stating that its\nmeetings \"\n\nshall be conducted\n\nsufficiently\nspecifically.\n\nin accordance\n\nRobert' s Rules of Order include a large number\n\nof parliamentary\n\nprocedure,\n\nform.\n\nis not in the public domain or available\n\nto this office does not provide\n\nthe public of the requirements\n\nto many aspects\n\non the internet\n\nin\n\nthe text or a summary\n\nany information\n\nindicating\n\nof Rule 7. In order to better notify the public\n\nof the content of Rule 7, or any other rule contained\nmay impose to govern the public' s behavior\n\ndoes not\n\nto Rule 7\n\nthe current edition of\n\nThis office was unable to locate on the Board' s website\n\nof Rule 7, and the Board' s response\nthat it has apprised\n\npursuant\n\nof rules pertaining\n\nand to the extent that the Board has adopted\n\nRobert' s Rules of Order, that document\nits complete\n\nwith Robert' s Rules of Order, Revised,\"\n\nnotify the public that the Board may restrict public comment\n\nin Robert' s Rules of Order, that the Board\n\nat meetings,\n\nthe Board may wish to amend its\n\nbylaws or adopt its own policies that restate the content of those rules.\n\nThe Board argues that\nan individual\n\nBoard member\n\nare not relevant\n\nintended\n\nthat contained \"\n\nto their performance\n\npersonal,\n\nor qualifications\n\ncomment\n\nslanderous\n\nwas a personal\n\nremarks\n\nattack on\n\nabout individuals\n\nas School District officials.\"\n\nthat\n\n13\n\n10Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021).\n11Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021) ( referencing\n\nHomewood- Flossmoor\n\nHigh School Bylaws, II.B.4 (Rules of Order) and II.B.5 (Items of\n\nBusiness Not on Agenda)).\n12Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n13Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 9\n\nfurnished\n\nthis office a copy of the comment\n\n2020, meeting,\ncomment\n\nwhich includes\n\nhe sent to the Board in advance\n\nseveral mentions\n\nstated that the Board member \" used to stand for something\n\nthat lately, his \" passion has succumbed\nof pejoratives.\"\nannounced\n\nto a personal\n\nthen asserted\n\nsome conspiratorial\n\nmeetings.\"\n\nrecording\n\ntired of the constant,\n\nthat at the last general meeting,\n\nwhen a public official feels haughtily\n\nconspiracy\n\nto create a political\n\nmeetings.\n\nBoard member\n\nonly one community\nreference\n\nthat his comment\n\nour attention\n\nthis\n\nthat he was\n\nreferred\n\na valid issue to a political\n14\n\nreasons.\"\n\nto the discussion\n\nto the minutes\n\nIn his reply to this\n\nthat occurred\n\nconcerning\n\nof that meeting,\n\nto videotaping\n\namong\n\nvideotaping\n\nBoard\n\nwhich document\n\nBoard meetings,\n\ntalks about this issue, which\n\nThis office has determined\n\nthat\n\nand stated that\n\nunderstood\n\nthat \"[ w] hen criticism\n\nin the performance\n\nto be a\n\ninvolves\n\nthe conduct\n\nof their public duties, significant\n\nof present\n\nlatitude must be\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3. On that basis,\n\nthis office has repeatedly\n\ndetermined\n\napplies public comment\n\nrules prohibiting \"\n\nofficial by name to restrict comments\nexercise\n\nin reducing\n\nof the Whole meeting\n\nstated his opposition\n\nmember\n\nto research\n\nto him.\n\nor former public officials\nallowed.\"\n\njustified\n\nfor their own political\n\n2020 Committee\n\ndirected\n\nthe identified\n\npersonal\n\nnarrative\n\nexplained\n\nthe Board at the October\n\nthe general board\n\npledged\n\ngiven to this issue\" and to him, and that \"[ i]t is sheer\n\narrogance\n\noffice,\n\nCommittee\n\nbut\n\na false narrative\n\nfour years ago and report to the larger board[,]\"\n\ndisrespect\n\n17,\n\nthe member\n\nagenda with regard to the issue of recording\n\nmeetings]\n\npersonal\n\nduring his campaign\"\n\nagenda of hate and creating\n\nfurther stated that the \" Planning\n\nissue regarding\n\nof the November\n\nof the name of a Board member.\n\nthat a public body violates\npersonal\n\nattacks\"\n\nsection 2.06( g) of OMA when it\n\nor criticism\n\nof public employees\n\nabout the manner in which public employees\n\nor\n\nor officials\n\ntheir official duties. See e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 65871 et al., issued\n\nMarch 16, 2021 ( finding that city council violated\npublic comment\n\nrules prohibiting \"\n\na public employee\n\npersonal\n\nsection 2.06( g) of OMA when it applied\n\nattacks\"\n\nto mute commenter\n\nwho criticized\n\nfor the manner in which she carried out her public duties);\n\nIll. Att' y Gen. PAC\n\nReq. Rev. Ltr. 50824, issued July 10, 2018, at 4- 6 ( public body may not prohibit\nidentify\n\npublic officials\n\nengaging\n\nin behavior\n\nby name in context\n\nthat is disrupting\n\nAlthough\npublic employees\n\nperformance\n\ninstead\n\nSee Scroggins\n\nthat they are criticizing\ndiscusses\n\npersonal\n\nof public duties, the business\n\nlimit the public comment\n\nto conserve\n\ncomments\n\nthat\n\nthem for public duties, if speaker\n\nis not\n\nthe order and decorum\n\npublic bodies must generally\n\nand officials\n\nwhen public comment\n\nof criticizing\n\nof the meeting).\n\npermit members\nor otherwise\n\nmatters\n\nseparate\n\nof the public to refer to\n\ncommenting\n\non by name,\n\nand apart from the\n\nof a board, or other public body matters,\n\ntime and to conduct\n\nby name\n\nthe meeting\n\na board may\n\nin an efficient\n\nmanner.\n\nv. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 ( D. Kan. 1998) ( city council did\n\n14E- mail from\n\nto \" boardcomments@hf233.\n\norg\" ( November 17, 2020).\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 10\n\nnot violate first amendment\nabout an appointee\n\nto the United States Constitution\n\nto a mayoral\n\ncommission\n\nby restricting\n\npersonal\n\nthat were not directly relevant\n\ncomments\n\nto the business\n\nof the\n\npublic body); Ill. Att' y Gen. PAC Req. Rev. Ltr. 56926, at 7- 8, issued March 10, 2020 ( public\nbody was within its authority\n\nto prohibit\n\ncomments\n\nsitting city council member);\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 51665, at 6- 7, issued February\n\n2019 ( public body was within its authority\nconnection\n\nto a commenter\n\ncertain motives\n\ndisagreement\n\nspecifically\n\nto that member,\n\nhe had with that member.\n\nrecording\n\nintended\n\ncomment\n\nto this office.\nspeaker\n\nreferenced\n\nor endorse\n\nto construe\n\ncomments\n\ncomment\n\nviolated\n\nmade in Scroggins,\n\nthat mayoral\n\nappointee\n\nhad\n\na pig).\ndisruptive.\n\nAlthough\n\nhe did not encourage\n\nHis criticism\n\nwas not permissible\n\nprotected\n\nof how a Board\nby the first\n\nunder Robert' s Rules of Order,\n\npublic bodies to impose restrictions\n\nAccordingly,\n\non which\n\non\n\nthe Board refusal to read\n\nsection 2.06( g) of OMA.\n\nIn accordance\n\nwith the conclusions\n\nBoard clarify its rules for providing\ndecorum\n\nfrom applying\n\nor employees\n\nat a meeting\n\nFor that reason,\n\nfor election,\n\ncandidate.\n\nOMA as permitting\n\nIn fact,\n\nthe issue of\n\nKan., 2 F. Supp. 2d at 1366- 67,\n\nmail and called the appointee\n\ncomment\n\nthat violate the first amendment.\n\nmeetings\n\nfrom the comments\n\na competing\n\nspeakers\n\napply to regulate\n\nof the Board.\n\namong Board members\n\nSee Scroggins,\n\nthe\ncriticism\n\nor other words that would be considered\n\nEven if\n\nit would be illogical\n\nin discussing\n\nin his comment—\n\ncarried out his official duties is a matter of public concern\n\namendment.\n\n5,\n\nfor criticism,\n\nthat\n\n17, 2020, meeting.\n\nthe Board member' s prior campaign\n\nvoting against that member\nmember\n\nmentioned\n\nfrom continuing\n\nforged checks and opened other peoples'\ndid not use profanity\n\nlanguage\n\nhowever,\n\nhad been discussed\n\nis distinguishable\n\n1374 ( public body prohibited\n\none Board member\n\non an issue within the authority\n\njust one month prior to the November\n\nthe Board relies in its response\n\ncomment\n\nand used charged\n\nthat the disagreement\n\nthe general board meetings—\n\nthat occurred\n\nrunning against a\n\nof a public official' s personal\n\nidentified\n\nIt is apparent,\n\nrelates to that Board member' s position\ndemonstrated\n\nto limit discussion\n\na candidate\n\nand her ex- spouse).\n\ncomment\nattributed\n\npromoting\n\nof this letter, this office requests\n\npublic comment\n\nat Board meetings,\n\npublic comment\n\nand expressly\n\nincluding\n\nrules restricting\n\nthat the\n\nadopt rules it may wish to\n\nremote meetings,\ncomments\n\nby name but do not impede the Board from conducting\n\nand refrain at future\n\nthat identify\n\npublic officials\n\norderly meetings.\n\n\fMs. Mallory\nNovember\n\nA. Milluzzi\n\n4, 2021\n\nPage 11\n\nThe Public Access Counselor\nnot require the issuance\nany questions,\n\nof a binding opinion.\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nThis letter serves to close this matter.\n\nyou may contact me at ( 312) 814- 6437 or the Chicago\n\naddress listed on the first\n\npage of this letter.\n\nVery truly yours,\n\nLEAH BARTELT\nDeputy Public Access Counselor\nPublic Access Bureau\n\n66444 o 206g pub comment\n\nimproper\n\nsd\n\nIf you have\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nNovember\n\n4, 2021\n\nVia electronic mail\n\nVia electronic mail\nMs. Mallory A. Milluzzi\nKlein, Thorpe and Jenkins, Ltd.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606- 2903\nmamilluzzi@ktjlaw.\n\ncom\n\nRe: OMA Request for Review – 2021 PAC 66444\n\nDear\n\nand Ms. Milluzzi:\n\nThis determination\n\nis issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)).\nthat Homewood- Flossmoor\nOMA at its November\n\nFor the reasons discussed\n\nbelow, this office concludes\n\nSchool District 233 (District) Board of Education (Board) violated\n\n17, 2020, meeting when it refused to read one of the four comments\n\nit\n\nreceived in advance of the meeting.\n\nOn January 10, 2021,\n\nsubmitted\n\na Request for Review\n\nalleging that the Board violated OMA (5 ILCS 120/ 2.06(g) (West 2020)) at its November\n\n17,\n\n2020, meeting when it refused to read aloud during the meeting the comment he had submitted\nthe Board by e- mail.\n\nIn support of his Request for Review,\n\nthe Board meeting, which document\nmembers\n\nthat is expected\n\nattached the minutes of\n\nthat the Board read aloud three comments\n\nof the public but declined to read one comment\n\nlevel of discourse\n\nor encouraged\n\nsubmitted\n\nbecause it was \" not reflective\n\nat board meetings.\"\n\nby\n\nof the\n\n1\n\n1 Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Minutes 2 (attached to E-mail from\n\n500 South\n\nSecond\n\nStreet,\n\n100 West Randolph\n601 South University\n\nSpringfield,\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nto Public Access (January 10, 2021)).\n\nIllinois\n\n62701 • (217) 782- 1090 •\n\nTTY: (877) 844- 5461 •\n\nFax: (217) 782- 7046\n\nIllinois\n\n60601 • (312) 814- 3000 •\n\nTTY: (800) 964- 3013 •\n\nFax: (312) 814- 3806\n\nIllinois\n\n62901 • (618) 529- 6400 •\n\nto\n\nTTY: (877) 675- 9339 •\n\nFax: (618) 529- 6416\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nOn January 19, 2021, this office forwarded\nthe Board and requested\ncopies of the agenda,\n\nthat it provide\n\nminutes,\n\na detailed\n\na copy of the Request\n\nwritten response\n\nany audio or video recordings\n\nmeeting,\n\nand its rules for public comment.\n\nresponse\n\nand the requested\n\nfor Review to\n\nto the allegation,\n\nof the November\n\nalong with\n\n17, 2020,\n\nOn January 28, 2021, the Board submitted\n\nmaterials.\n\nreplied to the Board's response\n\na written\n\non February\n\n10, 2021.\n\nDETERMINATION\n\nSection 2.06(g) of OMA provides\nopportunity\n\nto address public officials\n\nbody.\" (Emphasis\nestablish\n\nadded.)\n\nthat \"[ a] ny person shall be permitted\n\nunder the rules established\n\nUnder the plain language\n\nAtt' y Gen. Pub. Acc. Op. No. 14- 009, issued September\n\nThe Board explained\n\nreceived\n\nat its meetings,\n\npermission\n\npresentation\n\nin advance\n\nof \" repetitious\"\n\nspeakers\n\nof the meeting\n\nmaterial.\n\nonly pursuant\n\nto those rules.\n\nSee Ill.\n\n2, 2014, at 7.\n\nthat it has established\n\naffording\n\nan\n\nby the public\n\nof section 2.06(g), a public body must\n\nand record rules and may restrict public comment\n\nparticipation\n\nand recorded\n\nand recorded\n\nfive minutes\n\nrules for public\n\nunless they have requested\n\nto speak for longer and prohibiting\n\nThe Board also explained\n\nand\n\nthe\n\nthat it has adopted\n\nRobert's\n\nRules of Order, and asserted:\n\nRobert's Rule of Order No. 7 states \" Speakers\n\nmust address their\n\nremarks\n\nin their language\n\nto the presiding\n\ndeportment,\nofficers\n\nor other members\n\nto the motives\n\nnever alluding\n\nby name, where possible\n\nof members.\"\n\nand\n\nto the\n\nto avoid it, nor\n\nRule No. 7 further provides: \"\n\nDebate\n\nmust address issues not personalities\n\nand that no one is permitted\n\nto make personal\n\nthe motives\n\nattacks or question\n\nspeakers.\"\n\nThese rules govern decorum\n\nparticipate\n\nin a School District Board Meeting,\n\nparticipations\n\nThe November\npandemic\n\nofficer, be courteous\n\nand avoid all personalities,\n\nduring Citizens\n\n17, 2020, meeting\n\nand the Board's agenda provided\n\npublic access to the meeting.\n\nConcerns\n\nof other\n\nfor anyone who wishes to\nincluding\n\nand Comments.[\n\nwas held remotely\n\ncitizens'\n2]\n\ndue to the COVID- 19\n\nboth a Zoom link and a telephone\n\nWith respect to public comment,\n\nnumber\n\nto facilitate\n\nthe agenda provided:\n\n2 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nMembers\n\nof the public may comment\n\nagenda items via email.\n\nPublic comment\n\nemail in advance\n\nto boardcomments@hf223.\n\nmust be received\n\nby 4: 00 p.m. Tuesday,\n\nEmailed\n\npublic comments\n\nNovember\n\non agenda and non-\n\nwill be accessible\norg.\n\nDespite\n\nthese instructions,\nmembers\n\n17, 2020.\n\nwill be read out loud during the\n\n17, 2020, Board of Education\n\nsection will be limited to 30 minutes.[\n\nrule allowing\n\nPublic comments\n\nNovember\n\nmeeting.\n\nbe read out loud in the order they were received\n\nrecorded\n\nby\n\nComments\n\nwill\n\nand the comment\n\n3]\n\nthe Board noted to this office that it does not have a\n\nof the public to have their comments\n\nread aloud, and further\n\nargued:\n\nWhile in practice,\n\nthe School District has allowed\n\npublic to submit email comments,\nmake them automatic. * * *\ndoes not have a recorded\ntheir public comments\n\nTherefore,\n\nsubmitted\n\nrules.[\n\nthe public the opportunity\n\nof the\n\nsince the School District\nthe right to have\n\nvia email and read aloud, the\nOMA, as the District did not\n\n4]\n\nThe Board further argued that it complied\nby offering\n\nmembers\n\nrules does [ sic] not\n\nrule that gives citizens\n\nPAC cannot find that it violated\nviolate its recorded\n\nits recorded\n\nto comment\n\nwith its established\n\nduring the meeting\n\nand recorded\n\nrules\n\non Zoom, and that\n\ncould have read his e- mail himself at that time.\n\nIn his reply,\ncomments\n\nduring the meeting\n\nestablished\n\nand recorded\n\nor video conference\nchanged\n\ncontests\n\nthe assertion\n\nlive on Zoom.\n\nrules about furnishing\n\npublic comments\n\nduring the COVID- 19 pandemic\n\nas of the Board's July 12, 2020, meeting,\n\nconference\n\nto holding meetings\n\nthe Zoom meetings\nparticipants\n\non Zoom.\n\nthat he could have provided\n\nduring meetings\n\nheld by audio\n\nand that its process for accepting\n\nwhen it switched\n\nfrom meetings\n\ncomments\n\nby audio\n\nasserts that he is a \" phone participant\"\n\nand that the Board does not provide the same opportunity\n\nto voice their comments\n\nhis\n\nstates that the Board has not\n\nas Zoom video participants.\n\nFinally,\n\nin\n\nfor phone\nargues\n\n3 Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n4 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nthat the agenda for the Board's November\npublic comment,\n\nThe minutes\nmember\n\nor encouraged\n\nwith legal counsel,\nwill entertain\nAlthough\n\nit was determined\n\nnot reflected\n\ncomment\n\nin the minutes,\n\nduring the meeting\n\naudio recording\n\nindicates\n\ndocument\n\nthat a Board\n\nof the level of discourse\n\nThe Board member\n\nthat is\n\nthen stated that after consulting\n\nthat the comment\n\nwould not be read but that \"[ t]he board\n\nby that member\n\nof the public as is appropriate.\"\n\nthe audio recording\n\nof the November\n\nthat it offered an opportunity\n\nfor members\n\n5\n\n17, 2020, meeting\n\nof the public to\n\nafter the Board had read three of the e- mailed comments.\n\nthat the Board asked members\n\nZoom if they wished to provide\nrecognized\n\nfor providing\n\nby e- mail.\n\nby e- mail, and stated that he would not\n\nit is not reflective\n\nat board meetings.\"\n\nan appropriate\n\nsets forth instructions\nsubmitted\n\n17, 2020, meeting\n\nthe Board received\n\nreceived \" because\n\nsupports the Board's statement\ncomment\n\nonly comments\n\nof the Board's November\n\nread aloud three comments\n\nread one of the comments\nexpected\n\n17, 2020, meeting\n\nand that agenda discusses\n\ncomment.\n\nAfter allowing\n\none person (who did not provide\n\nThe\n\nof the public to raise their hands on\n\na substantive\n\nthat opportunity,\ncomment),\n\nthe Board President\n\nstated that he did not see\n\nany other hands raised, and moved on to the next item.\n\nTo make it possible\n19 pandemic,\nrequirement\nAssembly\n\nGovernor\n\nPritzker\n\nfor public bodies to continue\n\nissued executive\n\nand rules for remote participation\nsubsequently\n\nhold remote meetings\n\namended\nwithout\n\npublic health emergencies.\n\n7\n\nof the pandemic\n\nprior to a meeting\ntelephone\n\nor on video conference\n\nviolated\n\nof the comments\n\nto incorporate\n\nhave evolved\n\nplatforms\n\nThe General\n\nfor public bodies to be able to\n\nhas remained\n\npublic comment\n\nover time, including\n\nduring designated\n\nfor Review,\n\n6\n\nof a quorum of their members\n\nduring such\n\nunchanged.\n\nin their meetings\n\naccepting\n\nand reading them aloud, and inviting contemporaneous\n\nIn a prior Request\ncommittee\n\npresence\n\nduring the COVID-\n\nOMA's in- person quorum\n\nof public bodies.\n\nSection 2.06(g) of OMA, however,\n\nPublic bodies have used various methods\ncircumstances\n\norders relaxing\n\nby members\n\nOMA to create a framework\n\nthe physical\n\nto function\n\nas the\n\nwritten comments\n\ncomments\n\npublic comment\n\nby\n\nperiods.\n\nthe Public Access Bureau determined\n\nthat a\n\nsection 2.06(g) of OMA when it failed to read aloud during the meeting\n\nit had received\n\nby e- mail prior to the meeting.\n\nLtr. 62755, issued July 15, 2020.\n5 Homewood- Flossmoor\n\nmost\n\nIll. Att' y Gen. PAC Req. Rev.\n\nIn that matter, the agenda for the meeting\nHigh School District 233 Board of Education,\n\nhad notified the\n\nMeeting, November\n\n17,\n\n2020, Minutes 2.\n6 See Executive Order 2020- 07, § 6, issued March 16, 2020; Executive Order 2020- 18, Part 1,\nissued April 1, 2020; Executive Order 2020- 33, Part 1, issued April 30, 2020; Executive Order 2020- 39, Part 1,\nissued May 29, 2020.\n7 See Public Act 101- 640, effective June 12, 2020 (adding section 7(e) to OMA).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\npublic that it should submit comments\nchair would read the submitted\n\nby e- mail prior to the meeting\n\ncomments.\n\n15, 2020, at 7. Taking into account\n\nthese instructions\n\nand the fact that the committee\n\ngrant the public any other opportunity\n\nto provide comment\n\nconcluded\n\nOMA when it decided\n\nreceived\n\nthat the committee\nfrom the public.\n\nviolated\n\nand that the committee\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 62755, issued July\n\nduring the meeting,\n\ndid not\n\nthis office\n\nto read only one of 42 comments\n\nSee also Ill. Att' y Gen. PAC Req. Rev. Ltr. 66704, issued July 7, 2021, at 5 (concluding\nvillage board violated\nduring a meeting\nboard provided\n\nthe public that comments\n\nwould be read and the\n\npublic no other means to address it during the meeting).\n\nHowever,\n\nthe Public Access Bureau has also determined\n\nthat section 2.06(g) does\n\nsubmitted\n\nagenda,\n\nduring remote meetings\n\nnotice, and stated procedures\n\nfor commenting\n\nthe public body's use of the e- mailed comments,\ncomment,\n\nduring a meeting.\n\nSeptember\n\n24, 2020, at 3- 4 (meeting\n\nnotice was ambiguous\n\nprocedures\n\nas to whether\n\nindividuals\n\nfor public comment\n\nto provide\n\nit received\n\nnot to read aloud\n\ne- mailed comments\ncomment\n\nin- person at\n\ndid not state that e- mailed comments\n\ncomments\n\nby telephone\n\nduring the meeting).\n\nthat section 2.06(g) did not require a public body to read out loud\n\nto it when doing so would have impeded\n\nand the public body allowed\n\nmailed comments\n\nmethods\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 63402, issued August 21,\n\nwould be read aloud and public body also permitted\nThis office also determined\n\nare silent about\n\nSee e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 64882, issued\n\nvillage hall and over the phone);\n2020, at 2- 3 (temporary\n\nWhere the\n\nand the public body offers alternative\n\nwould be read aloud, and the public body permitted\n\n770 e- mails submitted\n\nto it by e- mail.\n\na public body does not violate OMA when it chooses\n\ncomments\n\nmeeting,\n\nthat\n\nsection 2.06(g) of OMA when it voted against reading e- mailed comments\n\nbut the agenda had informed\n\nnot require every public body to read every comment\n\nfor providing\n\nit\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 62755, issued July 15, 2020, at 7.\n\navailable\n\npublic comment\n\nthe orderly progress\n\non Zoom and telephone,\n\nonline for public inspection.\n\nof the\n\nand made all e-\n\nIll. Att' y Gen. PAC Req.\n\nRev. Ltr. 66997, issued March 9, 2021, at 2- 3.\n\nHere, the agenda for the November\ncomments\n\nsubmitted\n\nEducation\n\nmeeting.\"\n\nOMA.\n\nspecific\n\nto meetings\n\npermitted\n\nmembers\n\ngenerally,\nresponse\n\nstated expressly\n\nby e- mail would \" be read out loud during the November\n8\n\nThe Board argues that because\n\nand not in its established\nviolated\n\n17, 2020, meeting\n\nand recorded\n\nthat representation\n\npublic comment\n\nhowever,\n\nheld by video and audio conference,\n\nhas read those comments\n\non the agenda\n\nand the Board nevertheless\n\nhas\nand\n\nIn fact, the Board acknowledges\nsubmitted\n\nthat it\n\ndo not contain any procedures\n\nby e- mail for those meetings,\n\nduring the meeting.\n\nto this office that it has read aloud comments\n\n17, 2020, Board of\n\nappeared\n\nrules, this office cannot conclude\n\nThe Board's rules for public comment,\n\nof the public to submit comments\n\nthat\n\nby\n\nin its\n\nat meetings\n\n8 Homewood- Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nboth before and after the November\nBoard to permit a commenter\nits rules.\n\n17, 2020, meeting.\n\nto participate\n\nOMA would not necessarily\n\nin public comment\n\nYet, here, where the Board notified the public on the agenda of its upcoming\n\nthat it would accept e- mailed comments\n\nand read them aloud at that meeting,\n\nrelied on that method would be deprived\n\nof their statutory\n\nwithout valid justification\n\nneutrally.\n\nThe Board followed\n\ncomments\n\nit received\n\nof a public comment\n\nthe instructions\n\nfor the November\n\nwho\n\nto raise their hands on Zoom and read their comments\nof alternative\n\nof addressing\n\nto read aloud comments\n\ninstructions\n\nand read all other\n\nit did not require any of the other\n\navailability\n\nmethods\n\nperiod during the\n\nto apply its procedures\n\non its agenda and accepted\n\n17, 2020, meeting;\n\ncommenters\n\nbody to disregard\n\nmeeting\n\nindividuals\n\nright to address the Board if it refused\n\nthrough Zoom does not relieve the Board of the obligation\n\nmatter, of the obligation\n\nin\n\nto read their comments.\n\nFor that same reason, the availability\nmeeting\n\nrequire the\n\nthrough a method not outlined\n\nthemselves.\n\nAlthough\n\nthe\n\nthe public body may relieve it, as a general\nreceived\n\nin writing, OMA does not allow the\n\non its agenda that members\n\nof the public relied upon to provide\n\npublic comment.\n\nAlternatively,\n\nthe Board argues that it was allowed\n\ne- mailed comment\n\nbecause\n\nslanderous\n\nabout individuals\n\nremarks\n\nas School District officials.\"\nviolated\n\nits established\n\nit was a \" personal\n9\n\nattack[ ]\n\nand political\n\nthat are not relevant\n\nFor those reasons,\n\nand recorded\n\nto refuse to read\ncampaigning\"\n\nto their performance\n\nand \" personal,\n\nor qualifications\n\nthe Board argues that\n\nrules, and that OMA authorized\n\ncomment\n\nit to prohibit\n\ncomment.\n\nThe Attorney\nauthority\n\nto conduct\n\nGeneral\n\na meeting\n\nNo. 19- 002, issued January\n\nconcluded\n\nthat a public body has inherent\n\nand orderly manner.\n\n9, 2019, at 6- 7. Although\n\na public body may permissibly\npublic meetings\n\nhas previously\n\nin an efficient\n\nSee Ill. Att' y Pub. Acc. Op.\n\nOMA does not specify the nature of rules\n\nadopt, a board may adopt rules to maintain\n\nto ensure that meetings\n\nare conducted\n\nefficiently.\n\norder and decorum\n\nat\n\nSee Timmon v. Wood, 633 F.\n\nSupp. 2d 453, 465 (W. D. Mich. 2008); see also Ill. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5 (a\npublic body may promulgate\norder and decorum).\nunreasonably\n\nreasonable \"\n\nHowever,\n\ntime, place and manner\"\n\nrules aimed at preserving\n\nsuch rules must tend to accommodate,\n\nrestrict, the right to address public officials.\n\nrather than to\n\nSee I.A Rana Enterprises,\n\nInc. v. City\n\nof Aurora, 630 F. Supp. 2d 912, at 923- 25 (N. D. Ill. 2009).\n\n9 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nAlthough\nrestrictions\n\na public body may enforce rules regarding\n\nmust be narrowly\n\nconstrued.\n\ndecorum,\n\nSee I.A Rana Enterprises,\n\nSupp. 2d 912, 922- 23 (N.D. Ill. 2009) (\" Any content- based restrictions,\nreference\n\nto the content of the speech being restricted,\nstate interest and be narrowly\n\ngovern the decorum\n\nof a meeting\n\nare permitted\n\nonly if they are directed\n\nactually disturbing\n\nor impeding\n\na meeting[.]\" (Emphasis\n\nremoval\n\nof individuals\n\nmeeting);\n\nfor proscribed\n\nthat purpose.\").\n\nadded.)\n\nunconstitutional\n\nRules that\n\nto conduct\n\nwhich is\n\nAcosta v. City of Costa Mesa,\n\nbecause\n\nit provided\n\neven if those remarks\n\nEven in a limited public forum like a city council meeting,\n\ntightly constrains\ndisruptive.\").\ncomments\n\nthe government's power; speakers\n\nThat is not to suggest,\n\nhowever,\n\nto cause an actual outburst\n\nfor the\n\ndid not disrupt a\n\nbecome \" disruptive\"\n\nmeeting\n\nimmediate\n\nCouncil\n\nmeeting\n\nor by extended\n\nby speaking\ndiscussion\n\nbecause\n\nbusiness\n\nin a reasonably\n\nNorwalk,\n\nor of \" fighting\n\nwords\"\n\nlikely to\n\nA speaker may disrupt a\n\ntoo long, by being unduly repetitious,\n\nof irrelevancies.\n\nthe Council\n\nThe meeting\n\nis prevented\n\nefficient\n\nmanner.\n\nis\n\nfrom accomplishing\n\nits\n\nIndeed, such conduct\n\nwith the rights of other speakers.\n\nWhite v. City of\n\n900 F.2d 1421, 1425 (9th Cir. 1990).\n\nAt the same time, comments\nmatters of public concern are protected\n\nduring a city council meeting\n\nby the first amendment\n\neven if the speaker's \" motive in commenting * * *\npersonal\n\nattack[.]\"\n\nBecause\n\nit would be illogical\n\nunconstitutional\n\nthem:\n\nmeans that a speaker can\n\ncombat. [ Citation.]\n\ndisrupted\n\nmay interfere\n\nonly if they are actually\n\nin ways that would not meet the test of actual\n\nbreach of the peace, [ citation],\nprovoke\n\nmay be removed\n\nA.,\n\nthe First Amendment\n\nthat a public body must wait for a speaker's\n\nbefore restricting\n\nT] he nature of a Council\n\nwith\nand must\n\nNorse v. City of Santa Cruz, 629 F.3d 966, 979 (9th Cir. 2010) (Kozinski,\n\nconcurring) (\"\n\nAccess\n\ndrawn to achieve\n\ntypes of remarks\n\npromulgated\n\nare subject to strict scrutiny,\n\nserve a compelling\n\n718 F.3d 800, 811 (9th Cir. 2013) (ordinance\n\ncontent- based\n\nInc. v. City of Aurora, 630 F.\n\nwhich pertain to\n\nto the United States Constitution\n\ncould be an insensitive,\n\nmean spirited,\n\nGault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 (W. D. Mich. 1999).\n\nrestrictions\n\nto construe\n\nOMA as permitting\n\non members\n\nof the public addressing\n\nBureau has previously\n\ndetermined\n\na public body to impose\npublic officials,\n\nthe Public\n\nthat section 2. 06(g) of OMA does not permit a public\n\nbody to apply public comment\n\nrules that are susceptible\n\nto overbroad\n\ncomments\n\ndisrupt public meetings.\n\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr.\n\nthat do not actually\n\n39069, issued April 5, 2016, at 3- 4 (finding public body violated\nprohibited \"\n\npersonal\n\nattacks against others\"\n\nThe Board argues that\nrecorded\n\npublic comment\n\nor \" rude or slanderous\n\nOMA by imposing\n\napplication\n\nto\n\nrule that\n\nremarks\").\n\nwritten comment\n\nrule, and that its rule is permissible\n\nand arbitrary\n\nviolated\n\nits established\n\nunder section 2.06(g) of OMA\n\nand\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nbecause\n\nit is \" content and viewpoint\n\nmaintaining\n\ncivility and decorum.\"\n\nbylaws pertaining\nand prohibits\n\nneutral and serve[ s] the significant\n10\n\nAs explained\n\nto visitors addressing\n\nthe presentation\n\nthe Board adopted\n\nmaterial,\"\n\nincluding\n\ncitizens\n\ncourteous\n\nin their language\n\ndecorum\n\naddressing\n\nfor anyone\n\n11\n\nand that rule requires\n\nand] that no one is permitted\n\nof other speakers.\"\n\nto five minutes\nthat\n\nThe Board asserts that Rule 7 of\n\nwho wishes to participate\n\nBoard members,\n\nand deportment, [\n\nthe motives\n\ninterest of\n\nbut that those bylaws also document\n\nRobert's Rules of Order (Bylaw II.B.4).\n\nmeeting,\n\nattacks or question\n\nthe Board (Bylaw II.B.5) limits speakers\n\nof \" repetitious\n\nRobert's Rule of Order governs\n\ngovernment\n\nabove, the Board asserts that the section of its\n\nin a Board\nspeakers\n\nto \" be\n\nto make personal\n\n12\n\nAs an initial matter, this office notes that the Board's bylaw stating that its\nmeetings \"\n\nshall be conducted\n\nsufficiently\nspecifically.\n\nin accordance\n\nRobert's Rules of Order include a large number\n\nof parliamentary\n\nprocedure,\n\nform.\n\nis not in the public domain or available\n\nto this office does not provide\n\nthe public of the requirements\n\nto many aspects\n\non the internet\n\nin\n\nthe text or a summary\n\nany information\n\nindicating\n\nof Rule 7. In order to better notify the public\n\nof the content of Rule 7, or any other rule contained\nmay impose to govern the public's behavior\n\ndoes not\n\nto Rule 7\n\nthe current edition of\n\nThis office was unable to locate on the Board's website\n\nof Rule 7, and the Board's response\nthat it has apprised\n\npursuant\n\nof rules pertaining\n\nand to the extent that the Board has adopted\n\nRobert's Rules of Order, that document\nits complete\n\nwith Robert's Rules of Order, Revised,\"\n\nnotify the public that the Board may restrict public comment\n\nin Robert's Rules of Order, that the Board\n\nat meetings,\n\nthe Board may wish to amend its\n\nbylaws or adopt its own policies that restate the content of those rules.\n\nThe Board argues that\nan individual\n\nBoard member\n\nare not relevant\n\nintended\n\nthat contained \"\n\nto their performance\n\npersonal,\n\nor qualifications\n\ncomment\n\nslanderous\n\nwas a personal\n\nremarks\n\nattack on\n\nabout individuals\n\nas School District officials.\"\n\nthat\n\n13\n\n10 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021).\n11 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021) (referencing\n\nHomewood- Flossmoor\n\nHigh School Bylaws, II.B.4 (Rules of Order) and II.B.5 (Items of\n\nBusiness Not on Agenda)).\n12 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n13 Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nfurnished\n\nthis office a copy of the comment\n\n2020, meeting,\ncomment\n\nwhich includes\n\nhe sent to the Board in advance\n\nseveral mentions\n\nstated that the Board member \" used to stand for something\n\nthat lately, his \" passion has succumbed\nof pejoratives.\"\nannounced\n\nto a personal\n\nthen asserted\n\nsome conspiratorial\n\nmeetings.\"\n\nrecording\n\ntired of the constant,\n\nthat at the last general meeting,\n\nwhen a public official feels haughtily\n\nconspiracy\n\nto create a political\n\nmeetings.\n\nBoard member\n\nonly one community\nreference\n\nthat his comment\n\nour attention\n\nthis\n\nthat he was\n\nreferred\n\na valid issue to a political\n14\n\nreasons.\"\n\nto the discussion\n\nto the minutes\n\nIn his reply to this\n\nthat occurred\n\nconcerning\n\nof that meeting,\n\nto videotaping\n\namong\n\nvideotaping\n\nBoard\n\nwhich document\n\nBoard meetings,\n\ntalks about this issue, which\n\nThis office has determined\n\nthat\n\nand stated that\n\nunderstood\n\nthat \"[ w] hen criticism\n\nin the performance\n\nto be a\n\ninvolves\n\nthe conduct\n\nof their public duties, significant\n\nof present\n\nlatitude must be\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3. On that basis,\n\nthis office has repeatedly\n\ndetermined\n\napplies public comment\n\nrules prohibiting \"\n\nofficial by name to restrict comments\nexercise\n\nin reducing\n\nof the Whole meeting\n\nstated his opposition\n\nmember\n\nto research\n\nto him.\n\nor former public officials\nallowed.\"\n\njustified\n\nfor their own political\n\n2020 Committee\n\ndirected\n\nthe identified\n\npersonal\n\nnarrative\n\nexplained\n\nthe Board at the October\n\nthe general board\n\npledged\n\ngiven to this issue\" and to him, and that \"[ i]t is sheer\n\narrogance\n\noffice,\n\nCommittee\n\nbut\n\na false narrative\n\nfour years ago and report to the larger board[,]\"\n\ndisrespect\n\n17,\n\nthe member\n\nagenda with regard to the issue of recording\n\nmeetings]\n\npersonal\n\nduring his campaign\"\n\nagenda of hate and creating\n\nfurther stated that the \" Planning\n\nissue regarding\n\nof the November\n\nof the name of a Board member.\n\nthat a public body violates\npersonal\n\nattacks\"\n\nsection 2.06(g) of OMA when it\n\nor criticism\n\nof public employees\n\nabout the manner in which public employees\n\nor\n\nor officials\n\ntheir official duties. See e.g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 65871 et al., issued\n\nMarch 16, 2021 (finding that city council violated\npublic comment\n\nrules prohibiting \"\n\na public employee\n\npersonal\n\nsection 2.06(g) of OMA when it applied\n\nattacks\"\n\nto mute commenter\n\nwho criticized\n\nfor the manner in which she carried out her public duties);\n\nIll. Att' y Gen. PAC\n\nReq. Rev. Ltr. 50824, issued July 10, 2018, at 4- 6 (public body may not prohibit\nidentify\n\npublic officials\n\nengaging\n\nin behavior\n\nby name in context\n\nthat is disrupting\n\nAlthough\npublic employees\n\nperformance\n\ninstead\n\nSee Scroggins\n\nthat they are criticizing\ndiscusses\n\npersonal\n\nof public duties, the business\n\nlimit the public comment\n\nto conserve\n\ncomments\n\nthat\n\nthem for public duties, if speaker\n\nis not\n\nthe order and decorum\n\npublic bodies must generally\n\nand officials\n\nwhen public comment\n\nof criticizing\n\nof the meeting).\n\npermit members\nor otherwise\n\nmatters\n\nseparate\n\nof the public to refer to\n\ncommenting\n\non by name,\n\nand apart from the\n\nof a board, or other public body matters,\n\ntime and to conduct\n\nby name\n\nthe meeting\n\na board may\n\nin an efficient\n\nmanner.\n\nv. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did\n\n14E- mail from\n\nto \" boardcomments@hf233.\n\norg\" (November 17, 2020).\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nnot violate first amendment\nabout an appointee\n\nto the United States Constitution\n\nto a mayoral\n\ncommission\n\nby restricting\n\npersonal\n\nthat were not directly relevant\n\ncomments\n\nto the business\n\nof the\n\npublic body); Ill. Att' y Gen. PAC Req. Rev. Ltr. 56926, at 7- 8, issued March 10, 2020 (public\nbody was within its authority\n\nto prohibit\n\ncomments\n\nsitting city council member);\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 51665, at 6- 7, issued February\n\n2019 (public body was within its authority\nconnection\n\nto a commenter\n\ncertain motives\n\ndisagreement\n\nspecifically\n\nto that member,\n\nhe had with that member.\n\nrecording\n\nintended\n\ncomment\n\nto this office.\nspeaker\n\nreferenced\n\nor endorse\n\nto construe\n\ncomments\n\ncomment\n\nviolated\n\nmade in Scroggins,\n\nthat mayoral\n\nappointee\n\nhad\n\na pig).\ndisruptive.\n\nAlthough\n\nhe did not encourage\n\nHis criticism\n\nwas not permissible\n\nprotected\n\nof how a Board\nby the first\n\nunder Robert's Rules of Order,\n\npublic bodies to impose restrictions\n\nAccordingly,\n\non which\n\non\n\nthe Board refusal to read\n\nsection 2.06(g) of OMA.\n\nIn accordance\n\nwith the conclusions\n\nBoard clarify its rules for providing\ndecorum\n\nfrom applying\n\nor employees\n\nat a meeting\n\nFor that reason,\n\nfor election,\n\ncandidate.\n\nOMA as permitting\n\nIn fact,\n\nthe issue of\n\nKan., 2 F. Supp. 2d at 1366- 67,\n\nmail and called the appointee\n\ncomment\n\nthat violate the first amendment.\n\nmeetings\n\nfrom the comments\n\na competing\n\nspeakers\n\napply to regulate\n\nof the Board.\n\namong Board members\n\nSee Scroggins,\n\nthe\ncriticism\n\nor other words that would be considered\n\nEven if\n\nit would be illogical\n\nin discussing\n\nin his comment—\n\ncarried out his official duties is a matter of public concern\n\namendment.\n\n5,\n\nfor criticism,\n\nthat\n\n17, 2020, meeting.\n\nthe Board member's prior campaign\n\nvoting against that member\nmember\n\nmentioned\n\nfrom continuing\n\nforged checks and opened other peoples'\ndid not use profanity\n\nlanguage\n\nhowever,\n\nhad been discussed\n\nis distinguishable\n\n1374 (public body prohibited\n\none Board member\n\non an issue within the authority\n\njust one month prior to the November\n\nthe Board relies in its response\n\ncomment\n\nand used charged\n\nthat the disagreement\n\nthe general board meetings—\n\nthat occurred\n\nrunning against a\n\nof a public official's personal\n\nidentified\n\nIt is apparent,\n\nrelates to that Board member's position\ndemonstrated\n\nto limit discussion\n\na candidate\n\nand her ex- spouse).\n\ncomment\nattributed\n\npromoting\n\nof this letter, this office requests\n\npublic comment\n\nat Board meetings,\n\npublic comment\n\nand expressly\n\nincluding\n\nrules restricting\n\nthat the\n\nadopt rules it may wish to\n\nremote meetings,\ncomments\n\nby name but do not impede the Board from conducting\n\nand refrain at future\n\nthat identify\n\npublic officials\n\norderly meetings.\n\nMs. Mallory\nNovember\n\nA. Milluzzi\n\nThe Public Access Counselor\nnot require the issuance\nany questions,\n\nof a binding opinion.\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nThis letter serves to close this matter.\n\nyou may contact me at (312) 814- 6437 or the Chicago\n\naddress listed on the first\n\npage of this letter.\n\nVery truly yours,\n\nLEAH BARTELT\nDeputy Public Access Counselor\nPublic Access Bureau\n\n66444 o 206g pub comment\n\nimproper\n\nsd\n\nIf you have","plain_summary_pre_resummarize":null,"card_headline":"Refusal to read a submitted public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66444/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 4, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\n\nKlein, Thorpe and Jenkins, Ltd.\n\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606-2903\nmamilluzzi@ktjlaw.com\n\nRe: OMA Request for Review — 2021 PAC 66444\n\nDear iii and Ms. Milluzzi:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed below, this office concludes\nthat Homewood-Flossmoor School District 233 (District) Board of Education (Board) violated\nOMA at its November 17, 2020, meeting when it refused to read one of the four comments it\nreceived in advance of the meeting.\n\nOn January 10, 2021, submitted a Request for Review\nalleging that the Board violated OMA (5 ILCS 120/2.06(g) (West 2020)) at its November 17,\n2020, meeting when it refused to read aloud during the meeting the comment he had submitted to\nthe Board by e-mail. In support of his Request for Review, | attached the minutes of\nthe Board meeting, which document that the Board read aloud three comments submitted by\nmembers of the public but declined to read one comment because it was \"not reflective of the\nlevel of discourse that is expected or encouraged at board meetings.\"!\n\n'Homewood-Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Minutes 2 (attached to E-mail oi _— to Public Access (January 10, 2021)).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 2\n\nOn January 19, 2021, this office forwarded a copy of the Request for Review to\nthe Board and requested that it provide a detailed written response to the allegation, along with\ncopies of the agenda, minutes, any audio or video recordings of the November 17, 2020,\nmeeting, and its rules for public comment. On January 28, 2021, the Board submitted a written\nresponse and the requested materials. {MI replied to the Board's response on February\n10, 2021.\n\nDETERMINATION\n\nSection 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" (Emphasis added.) Under the plain language of section 2.06(g), a public body must\nestablish and record rules and may restrict public comment only pursuant to those rules. See Ill.\nAtt'y Gen. Pub. Acc. Op. No. 14-009, issued September 2, 2014, at 7.\n\nThe Board explained that it has established and recorded rules for public\nparticipation at its meetings, affording speakers five minutes unless they have requested and\nreceived permission in advance of the meeting to speak for longer and prohibiting the\npresentation of \"repetitious\" material. The Board also explained that it has adopted Robert's\nRules of Order, and asserted:\n\nRobert's Rule of Order No. 7 states \"Speakers must address their\nremarks to the presiding officer, be courteous in their language and\ndeportment, and avoid all personalities, never alluding to the\nofficers or other members by name, where possible to avoid it, nor\nto the motives of members.\" Rule No. 7 further provides: \"Debate\nmust address issues not personalities and that no one is permitted\nto make personal attacks or question the motives of other\nspeakers.\" These rules govern decorum for anyone who wishes to\nparticipate in a School District Board Meeting, including citizens'\nparticipations during Citizens Concerns and Comments.|?!\n\nThe November 17, 2020, meeting was held remotely due to the COVID-19\npandemic and the Board's agenda provided both a Zoom link and a telephone number to facilitate\npublic access to the meeting. With respect to public comment, the agenda provided:\n\n*Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 3\n\nMembers of the public may comment on agenda and non-\nagenda items via email. Public comment will be accessible by\nemail in advance to boardcomments@hf223.org. Public comments\nmust be received by 4:00 p.m. Tuesday, November 17, 2020.\nEmailed public comments will be read out loud during the\nNovember 17, 2020, Board of Education meeting. Comments will\nbe read out loud in the order they were received and the comment\nsection will be limited to 30 minutes.@!\n\nDespite these instructions, the Board noted to this office that it does not have a\nrecorded rule allowing members of the public to have their comments read aloud, and further\nargued:\n\nWhile in practice, the School District has allowed members of the\npublic to submit email comments, its recorded rules does [sic] not\nmake them automatic. * * * Therefore, since the School District\ndoes not have a recorded rule that gives citizens the right to have\ntheir public comments submitted via email and read aloud, the\nPAC cannot find that it violated OMA, as the District did not\nviolate its recorded rules.!*!\n\nThe Board further argued that it complied with its established and recorded rules\nby offering the public the opportunity to comment during the meeting on Zoom, and that fj\nSE could have read his e-mail himself at that time.\n\nIn his reply, Fg contests the assertion that he could have provided his\ncomments during the meeting live on Zoom. fF states that the Board has not\nestablished and recorded rules about furnishing public comments during meetings held by audio\nor video conference during the COVID-19 pandemic and that its process for accepting comments\nchanged as of the Board's July 12, 2020, meeting, when it switched from meetings by audio\nconference to holding meetings on Zoom. Cd asserts that he is a \"phone participant\" in\nthe Zoom meetings and that the Board does not provide the same opportunity for phone\nparticipants to voice their comments as Zoom video participants. Finally, | argues\n\n*Homewood-Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n\n4Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 4\n\nthat the agenda for the Board's November 17, 2020, meeting sets forth instructions for providing\npublic comment, and that agenda discusses only comments submitted by e-mail.\n\nThe minutes of the Board's November 17, 2020, meeting document that a Board\nmember read aloud three comments the Board received by e-mail, and stated that he would not\nread one of the comments received \"because it is not reflective of the level of discourse that is\nexpected or encouraged at board meetings.\" The Board member then stated that after consulting\nwith legal counsel, it was determined that the comment would not be read but that \"[t]he board\nwill entertain an appropriate comment by that member of the public as is appropriate.\">\nAlthough not reflected in the minutes, the audio recording of the November 17, 2020, meeting\nsupports the Board's statement that it offered an opportunity for members of the public to\ncomment during the meeting after the Board had read three of the e-mailed comments. The\naudio recording indicates that the Board asked members of the public to raise their hands on\nZoom if they wished to provide comment. After allowing that opportunity, the Board President\nrecognized one person (who did not provide a substantive comment), stated that he did not see\nany other hands raised, and moved on to the next item.\n\nTo make it possible for public bodies to continue to function during the COVID-\n19 pandemic, Governor Pritzker issued executive orders relaxing OMA's in-person quorum\nrequirement and rules for remote participation by members of public bodies.° The General\nAssembly subsequently amended OMA to create a framework for public bodies to be able to\nhold remote meetings without the physical presence of a quorum of their members during such\npublic health emergencies.’ Section 2.06(g) of OMA, however, has remained unchanged.\nPublic bodies have used various methods to incorporate public comment in their meetings as the\ncircumstances of the pandemic have evolved over time, including accepting written comments\nprior to a meeting and reading them aloud, and inviting contemporaneous comments by\ntelephone or on video conference platforms during designated public comment periods.\n\nIn a prior Request for Review, the Public Access Bureau determined that a\ncommittee violated section 2.06(g) of OMA when it failed to read aloud during the meeting most\nof the comments it had received by e-mail prior to the meeting. Ill. Att'y Gen. PAC Req. Rev.\nLtr. 62755, issued July 15, 2020. In that matter, the agenda for the meeting had notified the\n\n‘Homewood-Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Minutes 2.\n\n®See Executive Order 2020-07, §6, issued March 16, 2020; Executive Order 2020-18, Part 1,\nissued April 1, 2020; Executive Order 2020-33, Part 1, issued April 30, 2020; Executive Order 2020-39, Part 1,\nissued May 29, 2020.\n\n7See Public Act 101-640, effective June 12, 2020 (adding section 7(e) to OMA).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 5\n\npublic that it should submit comments by e-mail prior to the meeting and that the committee\nchair would read the submitted comments. Ill. Att'y Gen. PAC Req. Rev. Ltr. 62755, issued July\n15, 2020, at 7. Taking into account these instructions and the fact that the committee did not\ngrant the public any other opportunity to provide comment during the meeting, this office\nconcluded that the committee violated OMA when it decided to read only one of 42 comments it\nreceived from the public. Ill. Att'y Gen. PAC Req. Rev. Ltr. 62755, issued July 15, 2020, at 7.\nSee also Ill. Att'y Gen. PAC Req. Rev. Ltr. 66704, issued July 7, 2021, at 5 (concluding that\nvillage board violated section 2.06(g) of OMA when it voted against reading e-mailed comments\nduring a meeting but the agenda had informed the public that comments would be read and the\nboard provided public no other means to address it during the meeting).\n\nHowever, the Public Access Bureau has also determined that section 2.06(g) does\nnot require every public body to read every comment submitted to it by e-mail. Where the\nagenda, notice, and stated procedures for commenting during remote meetings are silent about\nthe public body's use of the e-mailed comments, and the public body offers alternative methods\nfor providing comment, a public body does not violate OMA when it chooses not to read aloud\ncomments during a meeting. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 64882, issued\nSeptember 24, 2020, at 3-4 (meeting notice was ambiguous as to whether e-mailed comments\nwould be read aloud, and the public body permitted individuals to provide comment in-person at\nvillage hall and over the phone); III. Att'y Gen. PAC Req. Rev. Ltr. 63402, issued August 21,\n2020, at 2-3 (temporary procedures for public comment did not state that e-mailed comments\nwould be read aloud and public body also permitted comments by telephone during the meeting).\nThis office also determined that section 2.06(g) did not require a public body to read out loud\n770 e-mails submitted to it when doing so would have impeded the orderly progress of the\nmeeting, and the public body allowed public comment on Zoom and telephone, and made all e-\nmailed comments it received available online for public inspection. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 66997, issued March 9, 2021, at 2-3.\n\nHere, the agenda for the November 17, 2020, meeting stated expressly that\ncomments submitted by e-mail would \"be read out loud during the November 17, 2020, Board of\nEducation meeting.\"* The Board argues that because that representation appeared on the agenda\nand not in its established and recorded public comment rules, this office cannot conclude that it\nviolated OMA. The Board's rules for public comment, however, do not contain any procedures\nspecific to meetings held by video and audio conference, and the Board nevertheless has\npermitted members of the public to submit comments by e-mail for those meetings, and\ngenerally, has read those comments during the meeting. In fact, the Board acknowledges in its\nresponse to this office that it has read aloud comments submitted by iii at meetings\n\n’Homewood-Flossmoor High School District 233 Board of Education, Meeting, November 17,\n2020, Agenda.\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 6\n\nboth before and after the November 17, 2020, meeting. OMA would not necessarily require the\nBoard to permit a commenter to participate in public comment through a method not outlined in\nits rules. Yet, here, where the Board notified the public on the agenda of its upcoming meeting\nthat it would accept e-mailed comments and read them aloud at that meeting, individuals who\nrelied on that method would be deprived of their statutory right to address the Board if it refused\nwithout valid justification to read their comments.\n\nFor that same reason, the availability of a public comment period during the\nmeeting through Zoom does not relieve the Board of the obligation to apply its procedures\nneutrally. The Board followed the instructions on its agenda and accepted and read all other\ncomments it received for the November 17, 2020, meeting; it did not require any of the other\ncommenters to raise their hands on Zoom and read their comments themselves. Although the\navailability of alternative methods of addressing the public body may relieve it, as a general\nmatter, of the obligation to read aloud comments received in writing, OMA does not allow the\nbody to disregard instructions on its agenda that members of the public relied upon to provide\npublic comment.\n\nAlternatively, the Board argues that it was allowed to refuse to read\ne-mailed comment because it was a \"personal attack[ ] and political campaigning\" and \"personal,\n\nslanderous remarks about individuals that are not relevant to their performance or qualifications\nas School District officials.\" For those reasons, the Board argues that comment\nviolated its established and recorded rules, and that OMA authorized it to prohibit\n\ncomment.\n\nThe Attorney General has previously concluded that a public body has inherent\nauthority to conduct a meeting in an efficient and orderly manner. See III. Att'y Pub. Acc. Op.\nNo. 19-002, issued January 9, 2019, at 6-7. Although OMA does not specify the nature of rules\na public body may permissibly adopt, a board may adopt rules to maintain order and decorum at\npublic meetings to ensure that meetings are conducted efficiently. See Timmon v. Wood, 633 F.\nSupp. 2d 453, 465 (W.D. Mich. 2008); see also Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, at 5 (a\npublic body may promulgate reasonable \"time, place and manner\" rules aimed at preserving\norder and decorum). However, such rules must tend to accommodate, rather than to\nunreasonably restrict, the right to address public officials. See .A Rana Enterprises, Inc. v. City\nof Aurora, 630 F. Supp. 2d 912, at 923-25 (N.D. III. 2009).\n\n*Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 7\n\nAlthough a public body may enforce rules regarding decorum, content-based\nrestrictions must be narrowly construed. See [.A Rana Enterprises, Inc. v. City of Aurora, 630 F.\nSupp. 2d 912, 922-23 (N.D. Ill. 2009) (\"Any content-based restrictions, promulgated with\nreference to the content of the speech being restricted, are subject to strict scrutiny, and must\nserve a compelling state interest and be narrowly drawn to achieve that purpose.\"). Rules that\ngovern the decorum of a meeting are permitted only if they are directed to conduct which is\n\"actually disturbing or impeding a meeting[.]\" (Emphasis added.) Acosta v. City of Costa Mesa,\n718 F.3d 800, 811 (9th Cir. 2013) (ordinance unconstitutional because it provided for the\nremoval of individuals for proscribed types of remarks even if those remarks did not disrupt a\nmeeting); Norse v. City of Santa Cruz, 629 F.3d 966, 979 (9th Cir. 2010) (Kozinski, A.,\nconcurring) (\"Even in a limited public forum like a city council meeting, the First Amendment\ntightly constrains the government's power; speakers may be removed only if they are actually\ndisruptive.\"). That is not to suggest, however, that a public body must wait for a speaker's\ncomments to cause an actual outburst before restricting them:\n\n[T]he nature of a Council meeting means that a speaker can\nbecome \"disruptive\" in ways that would not meet the test of actual\nbreach of the peace, [citation], or of \"fighting words\" likely to\nprovoke immediate combat. [Citation.] A speaker may disrupt a\nCouncil meeting by speaking too long, by being unduly repetitious,\nor by extended discussion of irrelevancies. The meeting is\ndisrupted because the Council is prevented from accomplishing its\nbusiness in a reasonably efficient manner. Indeed, such conduct\nmay interfere with the rights of other speakers. White v. City of\nNorwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).\n\nAt the same time, comments during a city council meeting which pertain to\nmatters of public concern are protected by the first amendment to the United States Constitution\neven if the speaker's \"motive in commenting * * * could be an insensitive, mean spirited,\npersonal attack[.]\" Gault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 (W.D. Mich. 1999).\nBecause it would be illogical to construe OMA as permitting a public body to impose\nunconstitutional restrictions on members of the public addressing public officials, the Public\nAccess Bureau has previously determined that section 2.06(g) of OMA does not permit a public\nbody to apply public comment rules that are susceptible to overbroad and arbitrary application to\ncomments that do not actually disrupt public meetings. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n39069, issued April 5, 2016, at 3-4 (finding public body violated OMA by imposing rule that\nprohibited \"personal attacks against others\" or \"rude or slanderous remarks\").\n\nThe Board argues that I written comment violated its established and\nrecorded public comment rule, and that its rule is permissible under section 2.06(g) of OMA\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 8\n\nbecause it is \"content and viewpoint neutral and serve[s] the significant government interest of\nmaintaining civility and decorum.\"!° As explained above, the Board asserts that the section of its\nbylaws pertaining to visitors addressing the Board (Bylaw II.B.5) limits speakers to five minutes\nand prohibits the presentation of \"repetitious material,\" but that those bylaws also document that\nthe Board adopted Robert's Rules of Order (Bylaw II.B.4).''! The Board asserts that Rule 7 of\nRobert's Rule of Order governs decorum for anyone who wishes to participate in a Board\nmeeting, including citizens addressing Board members, and that rule requires speakers to \"be\ncourteous in their language and deportment, [and] that no one is permitted to make personal\nattacks or question the motives of other speakers.\" !*\n\nAs an initial matter, this office notes that the Board's bylaw stating that its\nmeetings \"shall be conducted in accordance with Robert's Rules of Order, Revised,\" does not\nsufficiently notify the public that the Board may restrict public comment pursuant to Rule 7\nspecifically. Robert's Rules of Order include a large number of rules pertaining to many aspects\nof parliamentary procedure, and to the extent that the Board has adopted the current edition of\nRobert's Rules of Order, that document is not in the public domain or available on the internet in\nits complete form. This office was unable to locate on the Board's website the text or a summary\nof Rule 7, and the Board's response to this office does not provide any information indicating\nthat it has apprised the public of the requirements of Rule 7. In order to better notify the public\nof the content of Rule 7, or any other rule contained in Robert's Rules of Order, that the Board\nmay impose to govern the public's behavior at meetings, the Board may wish to amend its\nbylaws or adopt its own policies that restate the content of those rules.\n\nThe Board argues that i intended comment was a personal attack on\nan individual Board member that contained \"personal, slanderous remarks about individuals that\nare not relevant to their performance or qualifications as School District officials.\"\n\n'°L etter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021).\n\n\"Letter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 4 (January 28,\n2021) (referencing Homewood-Flossmoor High School Bylaws, II.B.4 (Rules of Order) and II.B.5 (Items of\nBusiness Not on Agenda)).\n\n\"1 etter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 2 (January 28,\n2021).\n\nLetter from Mallory A. Milluzzi, School District Attorney, Klein, Thorpe and Jenkins, Ltd., to\nLeah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at 5 (January 28,\n2021).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 9\n\nfurnished this office a copy of the comment he sent to the Board in advance of the November 17,\n2020, meeting, which includes several mentions of the name of a Board member.\n\ncomment stated that the Board member \"used to stand for something during his campaign\" but\nthat lately, his \"passion has succumbed to a personal agenda of hate and creating a false narrative\nof pejoratives.\" then asserted that at the last general meeting, the member\n\"announced some conspiratorial agenda with regard to the issue of recording the general board\nmeetings.\" a stated that the \"Planning Committee pledged to research this\n[issue regarding recording meetings] four years ago and report to the larger board[,]\" that he was\n\"tired of the constant, personal disrespect given to this issue\" and to him, and that \"[i]t is sheer\narrogance when a public official feels haughtily justified in reducing a valid issue to a political\notis to create a political narrative for their own political reasons.\"'* In his reply to this\n\noffice, explained that his comment referred to the discussion that occurred among\nthe Board at the October 2020 Committee of the Whole meeting concerning videotaping Board\nmeetings. directed our attention to the minutes of that meeting, which document that\nthe identified Board member stated his opposition to videotaping Board meetings, and stated that\nonly one community member talks about this issue, whi understood to be a\npersonal reference to him.\n\nThis office has determined that \"[w]hen criticism involves the conduct of present\nor former public officials in the performance of their public duties, significant latitude must be\nallowed.\" III. Att'y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3. On that basis,\nthis office has repeatedly determined that a public body violates section 2.06(g) of OMA when it\napplies public comment rules prohibiting \"personal attacks\" or criticism of public employees or\nofficial by name to restrict comments about the manner in which public employees or officials\nexercise their official duties. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 65871 et al., issued\nMarch 16, 2021 (finding that city council violated section 2.06(g) of OMA when it applied\npublic comment rules prohibiting \"personal attacks\" to mute commenter who criticized by name\na public employee for the manner in which she carried out her public duties); Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 50824, issued July 10, 2018, at 4-6 (public body may not prohibit comments that\nidentify public officials by name in context of criticizing them for public duties, if speaker is not\nengaging in behavior that is disrupting the order and decorum of the meeting).\n\nAlthough public bodies must generally permit members of the public to refer to\npublic employees and officials that they are criticizing or otherwise commenting on by name,\nwhen public comment instead discusses personal matters separate and apart from the\nperformance of public duties, the business of a board, or other public body matters, a board may\nlimit the public comment to conserve time and to conduct the meeting in an efficient manner.\nSee Scroggins v. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did\n\n'4E-mail from [to \"boardcomments@hf233.org\" (November 17, 2020).\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 10\n\nnot violate first amendment to the United States Constitution by restricting personal comments\nabout an appointee to a mayoral commission that were not directly relevant to the business of the\npublic body); Ill. Att'y Gen. PAC Req. Rev. Ltr. 56926, at 7-8, issued March 10, 2020 (public\nbody was within its authority to prohibit comments promoting a candidate running against a\nsitting city council member); Ill. Att'y Gen. PAC Req. Rev. Ltr. 51665, at 6-7, issued February 5,\n2019 (public body was within its authority to limit discussion of a public official's personal\nconnection to a commenter and her ex-spouse).\n\ncomment specifically identified one Board member for criticism,\nattributed certain motives to that member, and used charged language in discussing the\ndisagreement he had with that member. It is apparent, however, that EE c:iticism\nrelates to that Board member's position on an issue within the authority of the Board. In fact,\ndemonstrated that the disagreement mentioned in his comment—the issue of\nrecording the general board meetings—had been discussed among Board members at a meeting\nthat occurred just one month prior to the November 17, 2020, meeting. For that reason, | |\nintended comment is distinguishable from the comments made in Scroggins, on which\nthe Board relies in its response to this office. See Scroggins, Kan., 2 F. Supp. 2d at 1366-67,\n1374 (public body prohibited speaker from continuing comments that mayoral appointee had\nforged checks and opened other peoples’ mail and called the appointee a pig). a\ncomment did not use profanity or other words that would be considered disruptive. Although\nreferenced the Board member's prior campaign for election, he did not encourage\nvoting against that member or endorse a competing candidate. His criticism of how a Board\nmember carried out his official duties is a matter of public concern protected by the first\namendment. Even if Ps comment was not permissible under Robert's Rules of Order,\nit would be illogical to construe OMA as permitting public bodies to impose restrictions on\nspeakers that violate the first amendment. Accordingly, the Board refusal to read\ncomment violated section 2.06(g) of OMA.\n\nIn accordance with the conclusions of this letter, this office requests that the\nBoard clarify its rules for providing public comment and expressly adopt rules it may wish to\napply to regulate decorum at Board meetings, including remote meetings, and refrain at future\nmeetings from applying public comment rules restricting comments that identify public officials\nor employees by name but do not impede the Board from conducting orderly meetings.\n\nMs. Mallory A. Milluzzi\nNovember 4, 2021\nPage 11\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at (312) 814-6437 or the Chicago address listed on the first\npage of this letter.\n\nLEAH BARTELT\nDeputy Public Access Counselor\nPublic Access Bureau\n\n66444 0 206g pub comment improper sd"}
{"id":1350,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-02-23","case_number":null,"request_numbers":["66989"],"title":"City of Champaign Electoral Board cleared on meeting notice and public comment claims","filename":"66989, issued February 23, 2021.pdf","rel_path":null,"word_count":1097,"summary":"The requester alleged that the City of Champaign Electoral Board violated the Open Meetings Act by failing to provide notice for several meetings and denying public comment opportunities. The PAC determined that no further action was warranted because the meetings were continuations of a properly noticed initial meeting and public comment requirements were satisfied.","plain_summary":"A citizen complained that the City of Champaign Electoral Board held meetings without proper notice and failed to allow public comment. The Attorney General's office reviewed the case and found that the meetings were legally considered continuations of an earlier meeting and that the Board had already provided the required opportunity for public input. Consequently, the PAC closed the file without finding a violation.","holding":"The PAC determined that no further action is warranted regarding the allegations of improper notice and denial of public comment.","legal_question":"Whether the City of Champaign Electoral Board violated the Open Meetings Act by failing to provide separate notice for continued meetings and by limiting public comment to the initial meeting date.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Champaign Electoral Board","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerned whether subsequent sessions of an electoral board hearing required new public notices and additional public comment periods.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/66989, issued February 23, 2021.pdf","sha256":"2bb50ff73034afd1e84bd05512d8f17e244018c7a89700683c39b0f23268b451","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","public comment","electoral board","continued meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nFebruary 23, 2021\n\nVia electronic\n\nmail\n\nRE:\n\nOMA\n\nRequest for Review — 2021 PAC 66989\n\nDear\n\nOn February 14, 2021, you submitted a Request for Review to the Public Access\n\nBureau alleging that the City of Champaign Electoral Board ( Board) violated the Open Meetings\nAct ( OMA) ( 5 ILCS 120/ 1 et seq. ( West 2018)) in connection with meetings held on December\n\n7, 2020, and on each day from December 15 through December 18, 2020. For the reasons that\nfollow, this office has determined that no further action is warranted in this matter.\nSection 3. 5( a) of OMA ( 5 1LCS 120/ 3. 5( a) ( West 2018)) requires a Request for\ninclude \" a summary of the facts supporting the allegation[ ]\" that the public body\nviolated OMA.\nReview\n\nto\n\nIn your Request for Review, you allege that the Board improperly provided notice\nfor only the December 7, 2020, meeting, and not for the subsequent four meetings held on\nDecember 15 through December 18, 2020. You also allege that public comment was allowed\nduring only the December 7, 2020, meeting, and argue that the \" Electoral Board should have\nprovided an opportunity for public input during one or more of the meetings held during the\nDecember 15- 18 period.\"'\n\nAdditionally, you claim\n\nthat \"[\n\nt] or the purposes of OMA, these\n\nmeetings cannot have counted as a continuation of the December 7th meeting due to the amount\n\nof time that had passed. i2\n\n2. 02( a) of OMA ( 5 1LCS 120/ 2. 02( a) ( West 2018))\n\nSection\n\nprovides, in relevant\n\npart:\n\nLetter from\n\nto Public Access Counselor Pratt ( February 14, 2021).\n\n2Lettcr from\n\nto Public Access Counselor Pratt ( February 14, 2021).\n\n500 South Second\n\nStreet,\n\n100 West Randolph\n\n601 South University\n\nSpringfield,\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nIllinois 62701 • (\nIllinois 60601 • (\nIllinois\n\n62901 • (\n\n217) 782- 1090 • TrY: ( 877) 844- 5461 • Fax ( 217) 782- 7046\n312) 814- 3000 • TIT! (800) 964- 3013 • Fax: ( 312) 814- 3806\n618) 529- 6400 •\n\nTrY, ( 877) 675- 9339 •\n\nFax! ( 618) 529- 6416\n\n\fFebruary 23, 2021\nPage 2\n\nPublic\n\nnotice\n\nof any special\n\nmeeting except * * *\n\nany reconvened\n\nmeeting, shall be given at least 48 hours before such meeting,\nwhich notice shall also include\n\nthe agenda\n\nfor the special * * *\n\nor\n\nreconvened\n\nmeeting * * * .\nThe requirement of public notice of\nreconvened meetings does not apply to any case where the meeting\n\nwas open to the public. and ( 1) it is to be reconvened within 24\n\nhours, or (2) an announcement of the time and place of the\nreconvened meeting was made at the original meeting and\nthere\n\nis no change\n\nin the\n\nagenda. (\n\nEmphasis added.)\n\nThis office has reviewed the agenda for the December 7, 2020, meeting. The\ninitial portion of the agenda provides that \"[ t] he members of the Electoral Board will not be\n\nphysically present for the Monday, December 7, 2020 Meeting and subsequent proceedings as\nthey are continued from time to time but will instead be participating in the meeting through\naudio\n\nor audio/ video\n\naccess\n\nusing\n\na\n\nvirtual\n\nmeeting platform.\" (\n\nEmphasis added.) 3 The final\n\nagenda item provides:\nI. RECESS UNTIL DECEMBER\n\n15, 2020 AT 1: 30 P. M.\n\nTENTATIVE) OR OTHER DATE DETERMINED BY THE\nBOARD\n\nNote: The Board will continue to reconvene and schedule\n\nfuture meeting dates during each meeting as required with no\nadditional notice.) 01\n\nThis office' s review of the video recording of the December 7, 2020, meeting\nposted on the City's website confirmed that at the end of the meeting, the Board voted to recess\nand reconvene via Zoom on December 15, 2020, at 6: 00 p. m. 5 The same agenda was used for\nthe reconvened meeting on December 15, 2020 ( and the reconvened meetings on the subsequent\nthree days).\nThus, as to the December 15, 2020, meeting, no additional notice was required\nbecause the Board met the requirement in section 2. 02( a) that \" an announcement of the time and\n\nplace of the reconvened meeting was made at the original meeting and there is no change in the\nagenda.\"\n\n3City of Champaign Electoral Board, Agenda ( December 7, 2020).\nCity of Champaign Electoral Board, Agenda Item I ( December 7, 2020),\n\nSChampaign Government Television, Electoral Board Hearing 12/ 7/ 20,\nhttps:// cham paign. cablecast. tv/ CablecastPublicSite/\n\nshow/ 5134? channel=\n\n1.\n\n\fFebruary 23, 2021\nPage 3\n\nAdditionally, this office' s review of the video recordings of the December 15\n\nthrough December 17, 2020, meetings confirmed that at the end of each meeting, the Board\ndecided to reconvene within 24 hours. 6 Therefore, no additional notice was required for the\n\nmeetings held on December 16 through December 18, 2020, because they were reach\nreconvened\n\nwithin\n\n24 hours.\n\nBecause the meeting was properly scheduled to reconvene at the conclusion of\n\neach session, the Board held one meeting that stretched across five dates. Section 2. 06( g) of\nOMA ( 5 ILCS 120/ 2. 06( g) ( West 2018)) provides that \" rainy person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The Attorney General has concluded that section 2. 06( g) of OMA \" requires that all\npublic bodies subject to the Act provide an opportunity for members of the public to address\npublic officials at open meetings.\" I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September\n30, 20I4, at 5. In this instance, you acknowledge that the Board provided an opportunity for\npublic comment during the meeting, on December 7, 2020.\nUnder these circumstances, the Public Access Bureau has determined that no\nfurther action is warranted in this matter. This letter serves to close this file. Please contact me\n\nat jjones@atg.state. il.us if you have questions.\nVe\n\nJOSH\n\ntrul\n\nours\n\nA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n66989 o no fi war elec bd\n\ncc:\n\nVia electronic mail\nThe Honorable Deborah Frank Feinen\nChairperson\n\nCity of Champaign Electoral Board\n102 North Neil Street\nChampaign,\n\nIllinois 61820\n\nDeb. Feinen@champaignil. gov\n6Champaign Government Television, Electoral Board Hearing 12/ 15/ 20,\nhttps:// champaign. cablecast. tv/ CablecastPublicSite/ show/ 5138? channel= 1; Champaign Government Television,\n\nElectoral Board Hearing 12/ 16/ 20, https:// Champaign. cablecast.tv/CablecastPublicSite/ show/ 5139; Champaign\nGovernment Television, Electoral Board Hearing 12/ 17/ 20,\nhttps:// Champaign. cablecast.\n\ntv/ CablecastPublicSite/\n\nshow/ 5142? channel=\n\n1,\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An electoral board's continued hearing sessions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66989/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nFebruary 23, 2021\n\nVia electronic\n\nmail\n\nRE:\n\nOMA\n\nRequest for Review — 2021 PAC 66989\n\nDear\n\nOn February 14, 2021, you submitted a Request for Review to the Public Access\n\nBureau alleging that the City of Champaign Electoral Board (Board) violated the Open Meetings\nAct (OMA) (5 ILCS 120/ 1 et seq. (West 2018)) in connection with meetings held on December\n\n7, 2020, and on each day from December 15 through December 18, 2020. For the reasons that\nfollow, this office has determined that no further action is warranted in this matter.\nSection 3. 5(a) of OMA (5 1LCS 120/ 3. 5(a) (West 2018)) requires a Request for\ninclude \" a summary of the facts supporting the allegation[ ]\" that the public body\nviolated OMA.\nReview\n\nto\n\nIn your Request for Review, you allege that the Board improperly provided notice\nfor only the December 7, 2020, meeting, and not for the subsequent four meetings held on\nDecember 15 through December 18, 2020. You also allege that public comment was allowed\nduring only the December 7, 2020, meeting, and argue that the \" Electoral Board should have\nprovided an opportunity for public input during one or more of the meetings held during the\nDecember 15- 18 period.\"'\n\nAdditionally, you claim\n\nthat \"[\n\nt] or the purposes of OMA, these\n\nmeetings cannot have counted as a continuation of the December 7th meeting due to the amount\n\nof time that had passed. i2\n\n2. 02(a) of OMA (5 1LCS 120/ 2. 02(a) (West 2018))\n\nSection\n\nprovides, in relevant\n\npart:\n\nLetter from\n\nto Public Access Counselor Pratt (February 14, 2021).\n\n2 Lettcr from\n\nto Public Access Counselor Pratt (February 14, 2021).\n\n500 South Second\n\nStreet,\n\n100 West Randolph\n\n601 South University\n\nSpringfield,\n\nStreet,\n\nChicago,\n\nAve., Carbondale,\n\nPublic\n\nnotice\n\nof any special\n\nmeeting except * * *\n\nany reconvened\n\nmeeting, shall be given at least 48 hours before such meeting,\nwhich notice shall also include\n\nthe agenda\n\nfor the special * * *\n\nor\n\nreconvened\n\nmeeting * * *.\nThe requirement of public notice of\nreconvened meetings does not apply to any case where the meeting\n\nwas open to the public. and (1) it is to be reconvened within 24\n\nhours, or (2) an announcement of the time and place of the\nreconvened meeting was made at the original meeting and\nthere\n\nis no change\n\nin the\n\nagenda. (Emphasis added.)\n\nThis office has reviewed the agenda for the December 7, 2020, meeting. The\ninitial portion of the agenda provides that \"[ t] he members of the Electoral Board will not be\n\nphysically present for the Monday, December 7, 2020 Meeting and subsequent proceedings as\nthey are continued from time to time but will instead be participating in the meeting through\naudio\n\nor audio/ video\n\naccess\n\nusing\n\na\n\nvirtual\n\nmeeting platform.\" (Emphasis added.) 3 The final\n\nagenda item provides:\nI. RECESS UNTIL DECEMBER\n\n15, 2020 AT 1: 30 P. M.\n\nTENTATIVE) OR OTHER DATE DETERMINED BY THE\nBOARD\n\nNote: The Board will continue to reconvene and schedule\n\nfuture meeting dates during each meeting as required with no\nadditional notice.) 01\n\nThis office's review of the video recording of the December 7, 2020, meeting\nposted on the City's website confirmed that at the end of the meeting, the Board voted to recess\nand reconvene via Zoom on December 15, 2020, at 6: 00 p. m. 5 The same agenda was used for\nthe reconvened meeting on December 15, 2020 (and the reconvened meetings on the subsequent\nthree days).\nThus, as to the December 15, 2020, meeting, no additional notice was required\nbecause the Board met the requirement in section 2. 02(a) that \" an announcement of the time and\n\nplace of the reconvened meeting was made at the original meeting and there is no change in the\nagenda.\"\n\nAdditionally, this office's review of the video recordings of the December 15\n\nthrough December 17, 2020, meetings confirmed that at the end of each meeting, the Board\ndecided to reconvene within 24 hours. 6 Therefore, no additional notice was required for the\n\nmeetings held on December 16 through December 18, 2020, because they were reach\nreconvened\n\nwithin\n\n24 hours.\n\nBecause the meeting was properly scheduled to reconvene at the conclusion of\n\neach session, the Board held one meeting that stretched across five dates. Section 2. 06(g) of\nOMA (5 ILCS 120/ 2. 06(g) (West 2018)) provides that \" rainy person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The Attorney General has concluded that section 2. 06(g) of OMA \" requires that all\npublic bodies subject to the Act provide an opportunity for members of the public to address\npublic officials at open meetings.\" I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September\n30, 20I4, at 5. In this instance, you acknowledge that the Board provided an opportunity for\npublic comment during the meeting, on December 7, 2020.\nUnder these circumstances, the Public Access Bureau has determined that no\nfurther action is warranted in this matter. This letter serves to close this file. Please contact me\n\nat jjones@atg.state. il.us if you have questions.\nVe\n\nJOSH\n\ntrul\n\nours\n\nA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n66989 o no fi war elec bd\n\ncc:\n\nVia electronic mail\nThe Honorable Deborah Frank Feinen\nChairperson\n\nCity of Champaign Electoral Board\n102 North Neil Street\nChampaign,\n\nIllinois 61820\n\nDeb. Feinen@champaignil. gov\n6 Champaign Government Television, Electoral Board Hearing 12/ 15/ 20,\nhttps:// champaign. cablecast. tv/ CablecastPublicSite/ show/ 5138? channel= 1; Champaign Government Television,\n\nElectoral Board Hearing 12/ 16/ 20, https:// Champaign. cablecast.tv/CablecastPublicSite/ show/ 5139; Champaign\nGovernment Television, Electoral Board Hearing 12/ 17/ 20,\nhttps:// Champaign. cablecast.\n\ntv/ CablecastPublicSite/\n\nshow/ 5142? channel=\n\n1,"}
{"id":1351,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-03-10","case_number":null,"request_numbers":["67024"],"title":"Violence Prevention Planning Committee not a public body under Open Meetings Act","filename":"67024, issued March 10, 2021.pdf","rel_path":null,"word_count":1823,"summary":"The requester alleged that the City of Chicago's Violence Prevention Planning Committee violated the Open Meetings Act by failing to hold open meetings, but the PAC determined the Committee does not meet the statutory definition of a 'public body.'","plain_summary":"A reporter requested that the Attorney General investigate whether a city committee was required to hold public meetings under the Open Meetings Act. The Attorney General's office concluded that the committee is not a 'public body' because it lacks the necessary government control or official advisory status. Consequently, the committee is not required to follow the open meeting rules.","holding":"The Violence Prevention Planning Committee is not a 'public body' subject to the requirements of the Open Meetings Act.","legal_question":"Whether the Violence Prevention Planning Committee of the City of Chicago constitutes a 'public body' as defined by section 1.02 of the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Violence Prevention Planning Committee of the City of Chicago","requesting_party":"Ms. Lakeidra Chavis, The Trace","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester sought to determine if the Violence Prevention Planning Committee was required to conduct its meetings in public under the Open Meetings Act.","ocr_status":"ok","ocr_quality":93.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/67024, issued March 10, 2021.pdf","sha256":"cb2982f01805ca669eb7afed28442bb304f1f15903c18eb0cd0c8c9dff09a2ac","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public body","open meetings act","advisory committee","government transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"• ---� .\n:\n\n�\n\nI\n\nj\n\n- .,.\n\nOFFICE OF THE ATTORNEY GENERAL\nSTA TE OF IL LJNOIS\n\nKWAMERAOUL\nAITORNEY GENERAL\n\nMarch 10, 2021\n\nVia electronic mail\nMs. Lakeidra Chavis\nReporter, The Trace\nlchavis@thetracc.org\nRE: OMA Request for Review - 2021 PAC 67024\nDear Ms. Chavis:\nPursuant to section 3.S(a) of the Open Meetings Act (OMA) (5 ILCS 120/3.S(a)\n(West 2018)), the Public Access Bureau has received your Request for Review alleging a\npossible violation of OMA in connection with the December 17, 2020, meeting of the Violence\nPrevention Planning Committee (Committee) of the City of Chicago (City). ·For the reasons set\nforth below, the Public Access Bureau has determined that the Committee is not a \"public body\"\nsubject to the requirements of OMA.\nOn February 17, 2021, you submitted the above-referenced Request for Review\nalleging that the City notified you that it considers the Committee meetings to be advisory and\nnot subject to OMA. You argue that \"[s]ince these meetings discuss city business including how\nresources, policy, and funding should be allocated to address violence in Chicago,\" the\nCommittee is subject to OMA. 1 Finally, you allege that more than 90 people attended the\nDecember 17, 2021, meeting, and that approximately 40 percent of them were representatives of\ncity, county, and state government ollices.\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2018). Section 1.02 of\nOMA (5 ILCS 120/1 .02 (West 2018)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\n'E-mail from Lakeidra Chavis, Reporter, The Trace to Sarah Pratt, Public Access Counselor,\nOffice of the Attorney General (February 17, 2021 ).\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • 17·y: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street. Chicago. Illinois 60601 • (312) 814-3000 • ·nv: {800) 964-3013 • Fa\": {312) 814-3806\nf'/01 South University Ave., Carbondale. Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fa\": (618) 529-6416\n\n\fMs. Lakeidra Chavis\nMarch I 0, 2021\nPage 2\n\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nAn \"advisory body,\" for purposes of OMA, is an entity that generally has defined\nresponsibilities and is a formal part of the structure of the public body that it advises.\n(Emphasis added.) Board of Regents ofRegency University System v. Reynard, 292 Ill. App. 3d\n968, 977-78 (4th Dist. 1997). OMA \"is not intended to open to the public the deliberations of\nmerely informal advisory committees who discuss internal\" affairs of a public body, even if\nthose discussions concern public business. Pope v. Parkinson, 48 Ill. App. 3d 797, 800 (4th Dist.\n1977). In Pope, the court held that a committee of four faculty and four student members\nappointed by the chancellor of a university to advise the chancellor and the director of the\nuniversity's basketball arena on issues related to the arena was not subject to OMA because the\ncommittee was \"not formally appointed by, or accountable to, any public body of the State.\"\nPope, 48 Ill. App. 3d at 799. Rather, the committee solely advised university administrators and\nserved at the pleasure of the chan_cellor. Pope, 48 Ill. App. 3d at 799. In University\nProfessionals of Jllinois v. Srukel, 344 Ill. App. 3d 856,868 (1st Dist. 2003), the court held that a\ngroup of presidents and chancellors of public universities, which made recommendations to the\nIllinois Board of Higher Education (IBHE), was not an advisory body of IBHE after considering\nvarious factors for determining whether a group constitutes an advisory body under OMA:\nThose factors include who appoints the members of the entity, the\nformality of their appointment, and whether they are paid for their\ntenure: the entity's assigned duties, including duties reflected in the\n• entity's bylaws or authorizing statute; whether its role is solely\nadvisory or whether it also has a deliberative or investigative\nfunction; whether the entity is subject to government control or\notherwise accountable to any public body; whether the group has a\nbudget; its place within the larger organization or institution of\nwhich it is a part; and the impact of decisions or recommendations\nthat the group makes. Stukel, 344 Ill. App. 3d at 865.\nSimilarly, Illinois courts consider the following factors in determining whether an entity could be\na \"subsidiary body\": (I) the extent to which the entity has a legal existence independent of\ngovernment resolution, (2) the degree of government control exerted over the entity, (3) the\nextent to which the entity is publicly funded, and (4) the nature of the functions performed by the\nentity. Bet/er Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, 126, 89 N.E.3d\n376, 384 (2017).\nThis office has reviewed the materials you submitted with your Request for\nReview, and also the document listed on your Request for Review, Our City, Our Safety: A\n\n\fMs. Lakeidra Chavis\nMarch I 0, 2021\nPage 3\n\n• Comprehensive Plan to Reduce Violence in Chicago (Plan). 2 Your materials included a list\nindicating approximately 90 people representing City departments, county agencies, State\nagencies, non-profit organizations, foundations, and universities who participated in the meeting.\nThe Plan available on the City's website primarily sets forth the City's strategies for addressing\nviolence. It identifies the Mayor and the Deputy Mayor of Public Safety as having responsibility\nfor coordinating public safety issues and overseeing an Office of Violence Reduction (OVR) to\nimplement violence reduction strategy. The Plan describes the origin and historical role of the\nCommittee in relation to the Mayor's OVR:\nThe Comprehensive Violence Reduction Strategy laid the\nfoundation for OVR's work, but to fully meet these commitments,\nit was important to hear from partners, stakeholders, and impacted\nresidents and incorporate their perspectives into the plan. For it to\nwork, the approach to addressing violence must not be developed\nsolely by those in City Hall for the City, but rather, must be\ndeveloped by the city as a whole. Thus, we needed a process that\nwould incorporate the voices, experiences, and expertise of\nstakeholders and residents across the city, as a whole.\nThis important input was largely collected through a multi­\nstakeholder Violence Prevention Planning.(VPP) process. In 2019,\nthe Mayor's Office applied for and received State of Illinois grant\nfunding to conduct such an endeavor in 2020. As part of the\nprocess, the Mayor's Office convened government officials, service\nproviders, faith leaders, philanthropic and university partners,\nindividuals with lived experience, and advocates to form a VPP\ncommittee, which was tasked with developing recommendations to\nreduce violence in the city of Chicago.131\nGoing forward, the Plan states that the City will reconvene the Committee \"every\nsix months to hold itself accountable and increase transparency to its work and progress made[,)\"\nand \"to review the City's progress on implementing these initiatives. \" 4\n\n'City of Chicago, Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago\n(2020), https://www.chicago.gov/content/dam/city/sites/public-safety-and-violenc-reduction/pdfs/\nOurCityOurSafcty.pdf\nCity of Chicago. Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago,\np. 22-23 (2020), https://www.chicago.gov/content/dam/city/sites/public-safcty-and-violenc-rcduction/pdfs/\nOurCityOurSafety.pdf\n3\n\n4\n\nCity of Chicago, Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago,\np. 20, 24. 68 (2020), hnps://www.chicago.gov/content/dam/city/sites/public-safcty-and-violenc-reduction/pdfs/\nOurCityOurSafety.pdf\n\n\fMs. Lakeidra Chavis\nMarch I 0, 2021\nPage4\n\nAlthough the Plan explains that the Committee has played and will continue to\nplay an advisory role on violence prevention issues, it does not appear to be a formal part of the\nstructure of the City of Chicago City Council (City Council), which is the Ci\\y's governing body.\nRather, the Committee was created to advise the Mayor and the Deputy Mayor of Public Safety\non the development and implementation of the City's violence reduction plan. The Plan gives no\nindication that the Committee has any authority to make binding recommendations or take final\naction, nor is it accountable to any public body for purposes of OMA. Additionally, there is no\nindication that the Committee has a budget, nor does it have any deliberative or investigative\nfunctions.\nFurthermore, as the holding in Pope demonstrates, the administrative creation of a\ngroup to advise an individual elected official or administrator generally does not constitute a\npublic body of the municipality. See also Ill. Att'y Gen. PAC Reg. Rev. Ltr. 45537, issued April\n6, 2017 (liquor commission that advised mayor in his individual capacity as mayor not subject to\nthe requirements of OMA because it was not an advisory body of the city council); Ill. Att'y Gen.\nPAC Reg. Rev. Ltr. 64667, issued September 15, 2020 (Superintendent's Metrics Reopening\nAdvisory Team not subject to.the requirements of OMA because it was not an advisory body of\nthe Board of Education); lll. Att'y Gen. PAC Reg. Rev. Ltr.45537, issued April 6, 20 I 7\n(concluding that a Superintendent's Task Force was a not a \"public body\" under OMA because it\n\"was an internal group formed to assist the Superintendent rather than any public body.\").\nLikewise, the Committee was formed to advise the Mayor and her staff: rather than the City\nCouncil. Because the Mayor and her staff are not a public body under OMA, the Committee's\nrole of advising the Mayor and her staff does not make the Committee an advisory body.\nSimilarly, the Committee does not meet the requirements of a subsidiary body of\nthe City Council. The available information indicates that it is an ad hoc body formed by the\nMayor's office to provide advice on the formation and implementation of the Mayor's violence\nprevention plan. Your Request for Review notes that many of the members of the Committee\nrepresent City, county, and State government offices. However, there is no indication that\nmembers of the Committee affiliated with government offices are represented in sufficient\nnumbers to exercise control over the Committee. See Hopf v. Topcorp. Inc., 170 Ill. App. 3d 88,\n92-93 (I st Dist. 1998) (not-for-profit corporations' boards of directors comprised of equal\nnumbers of city officials and representative of a private university not subject to OMA partly\nbecause city could not direct the operations of the boards). Therefore, their involvement does\nnot subject the Committee to the control of any other public body.\nBecause the Committee is neither an advisory body nor a subsidiary body of the\nCity Council, it is not a \"public body\" subject to the requirements of OMA. Accordingly, this\noffice has determined that no further action is warranted as to this matter.\n\n\fMs. Lakeidra Chavis\nMarch I 0, 2021\nPage 5\n\nThis file is closed. Please contact me at lbartelt@atg.state.il.us or (312) 814-6437\nif you have any questions.\n\nLEAH BARTELT\nDeputy Public Access Counselor\nPublic Access Bureau\n67024 o no fi war not a pb\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A violence prevention planning committee's meeting openness","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-67024/","full_text":"• ---�.\n:\n\n�\n\nI\n\nj\n\n-.,.\n\nOFFICE OF THE ATTORNEY GENERAL\nSTA TE OF IL LJNOIS\n\nKWAMERAOUL\nAITORNEY GENERAL\n\nMarch 10, 2021\n\nVia electronic mail\nMs. Lakeidra Chavis\nReporter, The Trace\nlchavis@thetracc.org\nRE: OMA Request for Review - 2021 PAC 67024\nDear Ms. Chavis:\nPursuant to section 3.S(a) of the Open Meetings Act (OMA) (5 ILCS 120/3.S(a)\n(West 2018)), the Public Access Bureau has received your Request for Review alleging a\npossible violation of OMA in connection with the December 17, 2020, meeting of the Violence\nPrevention Planning Committee (Committee) of the City of Chicago (City). ·For the reasons set\nforth below, the Public Access Bureau has determined that the Committee is not a \"public body\"\nsubject to the requirements of OMA.\nOn February 17, 2021, you submitted the above-referenced Request for Review\nalleging that the City notified you that it considers the Committee meetings to be advisory and\nnot subject to OMA. You argue that \"[s]ince these meetings discuss city business including how\nresources, policy, and funding should be allocated to address violence in Chicago,\" the\nCommittee is subject to OMA. 1 Finally, you allege that more than 90 people attended the\nDecember 17, 2021, meeting, and that approximately 40 percent of them were representatives of\ncity, county, and state government ollices.\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2018). Section 1.02 of\nOMA (5 ILCS 120/1.02 (West 2018)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\n'E-mail from Lakeidra Chavis, Reporter, The Trace to Sarah Pratt, Public Access Counselor,\nOffice of the Attorney General (February 17, 2021).\n\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nAn \"advisory body,\" for purposes of OMA, is an entity that generally has defined\nresponsibilities and is a formal part of the structure of the public body that it advises.\n(Emphasis added.) Board of Regents ofRegency University System v. Reynard, 292 Ill. App. 3d\n968, 977-78 (4th Dist. 1997). OMA \"is not intended to open to the public the deliberations of\nmerely informal advisory committees who discuss internal\" affairs of a public body, even if\nthose discussions concern public business. Pope v. Parkinson, 48 Ill. App. 3d 797, 800 (4th Dist.\n1977). In Pope, the court held that a committee of four faculty and four student members\nappointed by the chancellor of a university to advise the chancellor and the director of the\nuniversity's basketball arena on issues related to the arena was not subject to OMA because the\ncommittee was \"not formally appointed by, or accountable to, any public body of the State.\"\nPope, 48 Ill. App. 3d at 799. Rather, the committee solely advised university administrators and\nserved at the pleasure of the chan_cellor. Pope, 48 Ill. App. 3d at 799. In University\nProfessionals of Jllinois v. Srukel, 344 Ill. App. 3d 856,868 (1st Dist. 2003), the court held that a\ngroup of presidents and chancellors of public universities, which made recommendations to the\nIllinois Board of Higher Education (IBHE), was not an advisory body of IBHE after considering\nvarious factors for determining whether a group constitutes an advisory body under OMA:\nThose factors include who appoints the members of the entity, the\nformality of their appointment, and whether they are paid for their\ntenure: the entity's assigned duties, including duties reflected in the\n• entity's bylaws or authorizing statute; whether its role is solely\nadvisory or whether it also has a deliberative or investigative\nfunction; whether the entity is subject to government control or\notherwise accountable to any public body; whether the group has a\nbudget; its place within the larger organization or institution of\nwhich it is a part; and the impact of decisions or recommendations\nthat the group makes. Stukel, 344 Ill. App. 3d at 865.\nSimilarly, Illinois courts consider the following factors in determining whether an entity could be\na \"subsidiary body\": (I) the extent to which the entity has a legal existence independent of\ngovernment resolution, (2) the degree of government control exerted over the entity, (3) the\nextent to which the entity is publicly funded, and (4) the nature of the functions performed by the\nentity. Bet/er Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, 126, 89 N.E.3d\n376, 384 (2017).\nThis office has reviewed the materials you submitted with your Request for\nReview, and also the document listed on your Request for Review, Our City, Our Safety: A\n\nMs. Lakeidra Chavis\nMarch I 0, 2021\nPage 3\n\n• Comprehensive Plan to Reduce Violence in Chicago (Plan). 2 Your materials included a list\nindicating approximately 90 people representing City departments, county agencies, State\nagencies, non-profit organizations, foundations, and universities who participated in the meeting.\nThe Plan available on the City's website primarily sets forth the City's strategies for addressing\nviolence. It identifies the Mayor and the Deputy Mayor of Public Safety as having responsibility\nfor coordinating public safety issues and overseeing an Office of Violence Reduction (OVR) to\nimplement violence reduction strategy. The Plan describes the origin and historical role of the\nCommittee in relation to the Mayor's OVR:\nThe Comprehensive Violence Reduction Strategy laid the\nfoundation for OVR's work, but to fully meet these commitments,\nit was important to hear from partners, stakeholders, and impacted\nresidents and incorporate their perspectives into the plan. For it to\nwork, the approach to addressing violence must not be developed\nsolely by those in City Hall for the City, but rather, must be\ndeveloped by the city as a whole. Thus, we needed a process that\nwould incorporate the voices, experiences, and expertise of\nstakeholders and residents across the city, as a whole.\nThis important input was largely collected through a multi­\nstakeholder Violence Prevention Planning.(VPP) process. In 2019,\nthe Mayor's Office applied for and received State of Illinois grant\nfunding to conduct such an endeavor in 2020. As part of the\nprocess, the Mayor's Office convened government officials, service\nproviders, faith leaders, philanthropic and university partners,\nindividuals with lived experience, and advocates to form a VPP\ncommittee, which was tasked with developing recommendations to\nreduce violence in the city of Chicago.131\nGoing forward, the Plan states that the City will reconvene the Committee \"every\nsix months to hold itself accountable and increase transparency to its work and progress made[,)\"\nand \"to review the City's progress on implementing these initiatives. \" 4\n\n'City of Chicago, Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago\n(2020), https://www.chicago.gov/content/dam/city/sites/public-safety-and-violenc-reduction/pdfs/\nOurCityOurSafcty.pdf\nCity of Chicago. Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago,\np. 22-23 (2020), https://www.chicago.gov/content/dam/city/sites/public-safcty-and-violenc-rcduction/pdfs/\nOurCityOurSafety.pdf\n3\n\n4\n\nCity of Chicago, Our City, Our Safety: A Comprehensive Plan to Reduce Violence in Chicago,\np. 20, 24. 68 (2020), hnps://www.chicago.gov/content/dam/city/sites/public-safcty-and-violenc-reduction/pdfs/\nOurCityOurSafety.pdf\n\nMs. Lakeidra Chavis\nMarch I 0, 2021\nPage4\n\nAlthough the Plan explains that the Committee has played and will continue to\nplay an advisory role on violence prevention issues, it does not appear to be a formal part of the\nstructure of the City of Chicago City Council (City Council), which is the Ci\\y's governing body.\nRather, the Committee was created to advise the Mayor and the Deputy Mayor of Public Safety\non the development and implementation of the City's violence reduction plan. The Plan gives no\nindication that the Committee has any authority to make binding recommendations or take final\naction, nor is it accountable to any public body for purposes of OMA. Additionally, there is no\nindication that the Committee has a budget, nor does it have any deliberative or investigative\nfunctions.\nFurthermore, as the holding in Pope demonstrates, the administrative creation of a\ngroup to advise an individual elected official or administrator generally does not constitute a\npublic body of the municipality. See also Ill. Att'y Gen. PAC Reg. Rev. Ltr. 45537, issued April\n6, 2017 (liquor commission that advised mayor in his individual capacity as mayor not subject to\nthe requirements of OMA because it was not an advisory body of the city council); Ill. Att'y Gen.\nPAC Reg. Rev. Ltr. 64667, issued September 15, 2020 (Superintendent's Metrics Reopening\nAdvisory Team not subject to.the requirements of OMA because it was not an advisory body of\nthe Board of Education); lll. Att'y Gen. PAC Reg. Rev. Ltr.45537, issued April 6, 20 I 7\n(concluding that a Superintendent's Task Force was a not a \"public body\" under OMA because it\n\"was an internal group formed to assist the Superintendent rather than any public body.\").\nLikewise, the Committee was formed to advise the Mayor and her staff: rather than the City\nCouncil. Because the Mayor and her staff are not a public body under OMA, the Committee's\nrole of advising the Mayor and her staff does not make the Committee an advisory body.\nSimilarly, the Committee does not meet the requirements of a subsidiary body of\nthe City Council. The available information indicates that it is an ad hoc body formed by the\nMayor's office to provide advice on the formation and implementation of the Mayor's violence\nprevention plan. Your Request for Review notes that many of the members of the Committee\nrepresent City, county, and State government offices. However, there is no indication that\nmembers of the Committee affiliated with government offices are represented in sufficient\nnumbers to exercise control over the Committee. See Hopf v. Topcorp. Inc., 170 Ill. App. 3d 88,\n92-93 (I st Dist. 1998) (not-for-profit corporations' boards of directors comprised of equal\nnumbers of city officials and representative of a private university not subject to OMA partly\nbecause city could not direct the operations of the boards). Therefore, their involvement does\nnot subject the Committee to the control of any other public body.\nBecause the Committee is neither an advisory body nor a subsidiary body of the\nCity Council, it is not a \"public body\" subject to the requirements of OMA. Accordingly, this\noffice has determined that no further action is warranted as to this matter.\n\nMs. Lakeidra Chavis\nMarch I 0, 2021\nPage 5\n\nThis file is closed. Please contact me at lbartelt@atg.state.il.us or (312) 814-6437\nif you have any questions.\n\nLEAH BARTELT\nDeputy Public Access Counselor\nPublic Access Bureau\n67024 o no fi war not a pb"}
{"id":1353,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-10-07","case_number":null,"request_numbers":["67369"],"title":"Village of Broadwell Board of Trustees public comment restriction insufficient evidence","filename":"67369, issued October 7, 2021.pdf","rel_path":null,"word_count":2374,"summary":"A requester alleged that the Village of Broadwell Board of Trustees violated the Open Meetings Act by improperly restricting his public comment during a meeting. The PAC determined that the available information was insufficient to conclude that a violation occurred and closed the matter.","plain_summary":"A resident alleged that a village board improperly cut off his public comment. The PAC found the parties' accounts of the speaker's conduct and the Board's response were conflicting and that the available evidence was insufficient to establish a violation. It closed the matter without further action and advised the Board to adopt reasonable public-comment rules.","holding":"The PAC was unable to conclude that the Village of Broadwell improperly restricted public comment during its March 8, 2021, meeting.","legal_question":"Whether the Village of Broadwell Board of Trustees violated the Open Meetings Act by improperly restricting a member of the public's ability to address the Board during a public comment period.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Broadwell Board of Trustees","requesting_party":"Michael T. Fleshman","pac_outcome":"Insufficient information to conclude violation","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerns the conduct of a public comment period during a village board meeting.","ocr_status":"ok","ocr_quality":94.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/67369, issued October 7, 2021.pdf","sha256":"162c6985cfa3dd280d844fd6eab6c7df1afb9f8a4e814b55077e88c5c06d16eb","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","village board","meeting conduct"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober\n\nVia electronic\n\n7, 2021\n\nmail\n\nThe Honorable Nicholas Pender\nVillage\n\nPresident\n\nVillage of Broadwell\n105 East Pine\n\n[street address redacted for site publication -- see original PDF]\nvillageofbroadwell@gmail. com\nRE:\n\nDear\n\nOMA Request for Review — 2021 PAC 67369\n\nand Mr. Pender:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2020)).\n\nFor the reasons that follow, the Public Access Bureau\n\nis unable to conclude, based on the available information, that the Board of Trustees ( Board) of\n\nthe Village of Broadwell ( Village) improperly restricted public comment during its March 8,\n2021, meeting.\nBACKGROUND\nOn March 10, 2021,\n\nsubmitted\n\na Request for Review to the\n\nPublic Access Bureau alleging that the Board violated OMA at its March 8, 2021, meeting by\nexplained that\nimproperly restricting his ability to address members of the Board.\nduring the meeting's public comment period, some other members of the public spoke to the\nBoard about the number of unlicensed and inoperable vehicles parked in the village. He stated\nthat some Board discussion ensued and then he spoke about the same issue, as well as his\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph\n\nFax: ( 312) 814- 3806\n\n601\n\nSouth University\n\nStreet, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 •\nAve.,\n\nCarbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable\n\nNicholas\n\nPender\n\nOctober 7, 2021\nPage 2\n\nconcerns\n\nabout\n\nan area\n\nof the\n\nvillage\n\nwith poor drainage.\n\nasserted that he conveyed\n\nhis \" concern that both issues have been brought to the board's attention in no less than 2 years\nago\"\n\nwithout\n\naction\n\nt He alleged, in\n\nand that he \" felt they were derelict in their elected duties[.]\"\n\nrelevant part:\n\nVillage] President Pender while addressing me stated \" If you are\nunhappy with what happens in this village maybe you should\nmove\" at that remark I was upset, I emphatically told him that as a\ntaxpayer and resident of this village I had a right to attend this\n\nopen meeting and state my concems, w[ he] ther him and the rest of\nthe\n\nboard liked my opinions\n\nor\n\nnot. M[ r.] Pender\n\nreplied, \" Maybe\n\nyou do, but this is my meeting, and you need to leave this meeting\nnow[.]\" * * *\nAt first, I stated that I was not going to leave, but\nthen did so, because I did not want to be in possible violation of\nthe 1aw. 121\n\nOn March 17, 2021, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this\n\noffice\n\nwith a written\n\nresponse\n\nto\n\nOMA allegation\n\nand copies of its March 8, 2021, meeting agenda and minutes. On March 25, 2021, this office\nreceived the requested materials. On April 7, 2021, this office forwarded a copy of the Board' s\nresponse to\n\nthereafter,\n1;\n\nOn August 17, 2021,\n\nreplied.\n\nsubmitted additional information to this office\n\nquestioning whether Mr. Pender could continue to serve as Village President based on residency\nrequirements. He also noted that no Board meeting notices have been posted since an April 12,\n2021, meeting and one special meeting. The Public Access Counselor's authority to resolve\ndisputes is limited to alleged violations of OMA and the Freedom of Information Act (5 ILCS\n140/ 1 et seq. ( West 2020)).\n\nSee 15 ILCS 205/ 7( c)( 3) ( West 2020).\n\nOMA concerns the\n\ntransparency with which public bodies meet and conduct business by requiring advance notice\nand the opportunity for the public to attend meetings, as well as the opportunity for the public to\n\naddress public officials; it does not address alleged violations of the Illinois Municipal Code or\nother laws. Accordingly, this office will not review claims related to residency requirements for\nserving as a public official. Further, this office will not review any allegations that were not\nraised in\n\nMarch 10, 2021, Request for Review.\n\nAttachment\n\nto OMA —\n\nRequest for Review by Public Access Counselor (PAC) form from -\n\nMarch 10, 2021).\n2Attachment\nMarch\n\n10, 2021).\n\nto OMA — Request for Review by Public Access Counselor ( PAC)\n\nform from -\n\n\fThe Honorable\n\nNicholas\n\nPender\n\nOctober 7, 2021\nPage 3\n\nDETERMINATION\n\nSection 2. 06( g) of OMA provides that \"[\n\na] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Under the plain language of section 2. 06( g), a public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, issued September 30, 2014, at 6. Although OMA does not specifically address the types of\npublic comment rules that a public body may adopt, courts have clarified that public bodies may\npromulgate reasonable \" time, place, and manner\" restrictions that are narrowly tailored to serve\nsignificant governmental interests. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F.\nSupp. 2d 912, 922 ( N.D. Ill. 2009). For example, a public body may adopt reasonable\nlimitations on public comment to maintain decorum and ensure that meetings are conducted\nefficiently. Timmon v. Wood, 633 F. Supp. 2d 453, 465 ( W. D. Mich. 2008). However, rules that\ngovem the decorum of a meeting are permitted only if it is directed to conduct which is \" actually\ndisturbing or impeding a meeting.\" Acosta v. City of Costa Mesa, 718 F. 3d 800, 811 ( 9th Cir.\n2013) ( ordinance unconstitutional because it provided for the removal of individuals for\nproscribed types of remarks even if those remarks did not disrupt a meeting). Disagreeing with\nthe content of a speaker' s speech is not evidence that the speaker created a disturbance\n\nor\n\notherwise interfered with the efficiency of the proceedings. See, for example, Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 39239, issued June 29, 2016, at 4- 5.\nIn its response to this office, the Board confirmed\n\naddressed\n\nthat\n\nthe\n\nBoard during the meeting's period for public comment, but asserted that his comments \" although\nappropriate at the beginning of the discussion, eventually morphed into a belligerent tirade\nagainst\n\nthe\n\nVillage officials.\n\ni3\n\nThe Board contended\n\nbehavior interfered with its\n\nthat\n\nability to proceed with the meeting and \" amounted to disorderly conduct. i4 The Board argued\nthat the Village President has a duty to \" conduct meetings that conform to conventional\nstandards\n\nof decorum.\"\n\nto leave after\n\n5\n\nIn particular, the Board asserted: \"\n\nThe Village President did ask\n\ncontinued to interrupt the public meeting. The nonsense from\n\nlasted longer than 20 minutes. During that time\n\nLetter from Michael T. Fleshman, Woods &\nGeneral,\n\nPublic\n\nAccess Bureau, Office of the Attorney General\n\nIM was belligerent and\n\nBates, P. C., to Teresa Lim, Assistant Attorney\nMarch 25, 2021), at 2.\n\n4Letter from Michael T. Fleshman, Woods & Bates, P. C., to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General\n5Letter from Michael T. Fleshman, Woods &\nGeneral, Public Access Bureau, Office of the Attorney General\n\nMarch 25, 2021), at 2.\nBates,\nMarch\n\nP. C., to Teresa\n25, 2021),\n\nLim, Assistant\n\nat 2.\n\nAttorney\n\n\fThe Honorable\n\nNicholas\n\nPender\n\nOctober 7, 2021\nPage 4\n\nregularly\n\ninterrupted\n\nthe public\n\nofficials.\n\ni6\n\nPresident \" did not forcibly remove\n\nAdditionally, the Board contended that the Village\nfrom the meeting;\n\nrather,\n\nvoluntarily\n\nleft the meeting after being asked to do so.\" 7 The Board stated that it was uncertain whether it\nhad adopted rules for public comment, but that it intended to adopt public comment rules at its\nApril 12, 2021, regular meeting and provided this office with a copy of its proposed rules.\ndisputed the Board's account of his\n\nIn reply to that answer,\n\nparticipation at the meeting and contended that the meeting' s minutes were neither complete nor\naccurate. He asserted that his remarks lasted less than 20 minutes, noting that the meeting started\nat 7: 00 p. m. and that he arrived home at 7: 25 p. m. He stated that he had a back -and -forth\nexchange with the Village President and one of the Board trustees, who \" did speak of having a\nmeeting about the flooding and went on to tell me how busy he was with the streets and\nS\nalley' s[.]\"\nacknowledged that he \" did interrupt [ that trustee] at one point and asked\nif he was the only one on the board that could do anything. n9\n\nHowever, he asserted, in relevant\n\npart:\n\nI did express frustration with being 2 years of dealing with the\nissue, however I cut no one off, (other than I explained above) and\n\nthough I may have raised my voice in frustration, I did not yell or\nget louder. I did not tell the board \" they needed to turn themselves\n\nover to the county\" I did tell them that if they were not going to do\nanything that they should turn the village over to the county to\nrun. Ltof\n\nThis office also has reviewed the meeting minutes, which state, in relevant part:\n\n6Letter from Michael T. Fleshman, Woods &\n\nBates, P. C., to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General ( March 25, 2021), at 2.\n7Letter from Michael T. Fleshman,\n\nWoods &\n\nBates, P. C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General ( March 25, 2021), at 2.\nLetter from\n\nto Teresa Lim, Assistant Attomey General, Public Access Bureau,\n\nOffice of the Attorney General ( undated).\nLetter\n\nfrom\n\nto Teresa Lim, Assistant Attomey General, Public Access Bureau,\n\nOffice of the Attorney General ( undated).\n10Letter from\nOffice\n\nof the Attorney\n\nGeneral ( undated).\n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau,\n\n\fThe Honorable\n\nNicholas\n\nPender\n\nOctober 7, 2021\nPage 5\n\nbegan raising his voice and yelling that it had been 2\n\nyears and still nothing had been done. When the board members\ntried to speak,\n\ncut them off and began to talk even\n\nlouder. He was becoming belligerent and using improper language\nand told the board they needed to turn themselves over to the\n1111\ncounty, as the board was doing nothing.\nThis office is unable to conclude from these conflicting accounts that the Board\nability to address its members. Although the Board did not\nhave public comment rules at the time of the meeting, the head of a public body may take\nmeasures to preserve decorum and ensure that a meeting is conducted in an orderly and efficient\nimproperly restricted\n\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr. 53888, issued April 30, 2020, at 4 (\" Even\n\nmanner.\n\nwithout public comment rules, the head of a public body has the authority and responsibility to\nrun a civil and businesslike meeting, including the inherent authority to put a stop to conduct that\ninterferes with the orderly conduct of a meeting.\").\n\nOn the other hand, disagreement over the\n\ncontent of a speaker' s comments, such as comments expressing disapproval of a board' s\nmanagement of public business, is not evidence that the speaker is disturbing a meeting, as\ndiscussed\n\nabove.\n\nThe Public Access Bureau has previously\n\ndetermined\n\nthat \"[\n\nw] hen criticism\n\ninvolves the conduct of present or former public officials in the performance of their public\nduties, significant\n\nlatitude\n\nmust\n\nbe allowed.\"\n\nI11. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued\n\nApril 5, 2016, at 3 ( restricting comments criticizing a public official by name impermissible).\n\noccurred\nthan\n\nHere, the parties dispute the specific nature of the back -and -forth exchange that\ncomments lasted longer\nduring public comment. The Board contended that\n\n20 minutes and became disruptive\n\nto the meeting,\n\ndenied that he was\n\nwhile\n\npermitted to speak for that long and contended that he was simply critiquing the Board's handling\nof Village matters. Because of this conflicting information and in the absence of an audio or\nvideo\n\nrecording that documents\n\nthe\n\nprecise content of\n\ncomments and the manner in\n\nwhich they were delivered, this office has insufficient evidence from which it could conclude\nthat the Board violated section 2. 06(g) of OMA during its March 8, 2021, meeting.\nNonetheless, the Office of the Public Access Counselor is charged with providing\nadvice\n\nand education to both public officials and the public. See 15 ILCS 205/ 7( a), ( b), ( c)\n\nWest 2020).\n\nTo that end, the Board indicated that it planned to adopt rules of order for public\ncomment at its scheduled April 12, 2021, meeting. If it has not already done so, this office\nadvises the Board to adopt reasonable rules governing public comment. In addition, the Board\nshould be mindful of providing members of the public with wide latitude when they are\ncriticizing public officials in the performance of their public duties, notwithstanding that the\nVillage\n\nof Broadwell,\n\nRegular\n\nMeeting,\n\nMarch\n\n8, 2021,\n\nMinutes\n\n1.\n\n\fThe Honorable\n\nNicholas\n\nPender\n\nOctober 7, 2021\nPage 6\n\nofficials are not required to respond to those criticisms or comments. 12 At the same time, we\n\nnote that a public body is justified in terminating speakers whose comments are profane or\ndelivered in a disorderly manner that disrupts the proceedings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n67369 o 206g proper mun\ncc:\n\nVia electronic mail\n\nMr. Michael T. Fleshman\n\nAttorney for Village of Broadwell\nWoods &\n\nBates, P. C.\n\n306 Clinton Street\nLincoln, Illinois 62656\nmichael@woodsandbates. com\n\nSee Ill. Att' y Gen. PAC\nrequire\n\nany\n\nresponse\n\nby\n\nor answers\n\nReq. Rev. Ltr. 37391,\n\nfrom public officials.\")\n\nissued\n\nJanuary\n\n11,\n\n2016, at 7 (\" OMA does not\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's public comment period","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"insufficient_info","plain_summary_pre_audit_fix":"A citizen complained that a village board unfairly limited his ability to speak during a public meeting. The Attorney General's office reviewed the complaint but found there wasn't enough evidence to prove the board broke the law. As a result, the office closed the case without taking further action.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-67369/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober\n\nVia electronic\n\n7, 2021\n\nmail\n\nThe Honorable Nicholas Pender\nVillage\n\nPresident\n\nVillage of Broadwell\n105 East Pine\n\n[street address redacted for site publication -- see original PDF]\nvillageofbroadwell@gmail. com\nRE:\n\nDear\n\nOMA Request for Review — 2021 PAC 67369\n\nand Mr. Pender:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2020)).\n\nFor the reasons that follow, the Public Access Bureau\n\nis unable to conclude, based on the available information, that the Board of Trustees (Board) of\n\nthe Village of Broadwell (Village) improperly restricted public comment during its March 8,\n2021, meeting.\nBACKGROUND\nOn March 10, 2021,\n\nsubmitted\n\na Request for Review to the\n\nPublic Access Bureau alleging that the Board violated OMA at its March 8, 2021, meeting by\nexplained that\nimproperly restricting his ability to address members of the Board.\nduring the meeting's public comment period, some other members of the public spoke to the\nBoard about the number of unlicensed and inoperable vehicles parked in the village. He stated\nthat some Board discussion ensued and then he spoke about the same issue, as well as his\n\nconcerns\n\nabout\n\nan area\n\nof the\n\nvillage\n\nwith poor drainage.\n\nasserted that he conveyed\n\nhis \" concern that both issues have been brought to the board's attention in no less than 2 years\nago\"\n\nwithout\n\naction\n\nt He alleged, in\n\nand that he \" felt they were derelict in their elected duties[.]\"\n\nrelevant part:\n\nVillage] President Pender while addressing me stated \" If you are\nunhappy with what happens in this village maybe you should\nmove\" at that remark I was upset, I emphatically told him that as a\ntaxpayer and resident of this village I had a right to attend this\n\nopen meeting and state my concems, w[ he] ther him and the rest of\nthe\n\nboard liked my opinions\n\nor\n\nnot. M[ r.] Pender\n\nreplied, \" Maybe\n\nyou do, but this is my meeting, and you need to leave this meeting\nnow[.]\" * * *\nAt first, I stated that I was not going to leave, but\nthen did so, because I did not want to be in possible violation of\nthe 1aw. 121\n\nOn March 17, 2021, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this\n\noffice\n\nwith a written\n\nresponse\n\nto\n\nOMA allegation\n\nand copies of its March 8, 2021, meeting agenda and minutes. On March 25, 2021, this office\nreceived the requested materials. On April 7, 2021, this office forwarded a copy of the Board's\nresponse to\n\nthereafter,\n1;\n\nOn August 17, 2021,\n\nreplied.\n\nsubmitted additional information to this office\n\nquestioning whether Mr. Pender could continue to serve as Village President based on residency\nrequirements. He also noted that no Board meeting notices have been posted since an April 12,\n2021, meeting and one special meeting. The Public Access Counselor's authority to resolve\ndisputes is limited to alleged violations of OMA and the Freedom of Information Act (5 ILCS\n140/ 1 et seq. (West 2020)).\n\nSee 15 ILCS 205/ 7(c)(3) (West 2020).\n\nOMA concerns the\n\ntransparency with which public bodies meet and conduct business by requiring advance notice\nand the opportunity for the public to attend meetings, as well as the opportunity for the public to\n\naddress public officials; it does not address alleged violations of the Illinois Municipal Code or\nother laws. Accordingly, this office will not review claims related to residency requirements for\nserving as a public official. Further, this office will not review any allegations that were not\nraised in\n\nMarch 10, 2021, Request for Review.\n\nAttachment\n\nto OMA —\n\nRequest for Review by Public Access Counselor (PAC) form from -\n\nMarch 10, 2021).\n2 Attachment\nMarch\n\nDETERMINATION\n\nSection 2. 06(g) of OMA provides that \"[\n\na] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Under the plain language of section 2. 06(g), a public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, issued September 30, 2014, at 6. Although OMA does not specifically address the types of\npublic comment rules that a public body may adopt, courts have clarified that public bodies may\npromulgate reasonable \" time, place, and manner\" restrictions that are narrowly tailored to serve\nsignificant governmental interests. See I.A. Rana Enterprises, Inc. v. City ofAurora, 630 F.\nSupp. 2d 912, 922 (N.D. Ill. 2009). For example, a public body may adopt reasonable\nlimitations on public comment to maintain decorum and ensure that meetings are conducted\nefficiently. Timmon v. Wood, 633 F. Supp. 2d 453, 465 (W. D. Mich. 2008). However, rules that\ngovem the decorum of a meeting are permitted only if it is directed to conduct which is \" actually\ndisturbing or impeding a meeting.\" Acosta v. City of Costa Mesa, 718 F. 3d 800, 811 (9th Cir.\n2013) (ordinance unconstitutional because it provided for the removal of individuals for\nproscribed types of remarks even if those remarks did not disrupt a meeting). Disagreeing with\nthe content of a speaker's speech is not evidence that the speaker created a disturbance\n\nor\n\notherwise interfered with the efficiency of the proceedings. See, for example, Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 39239, issued June 29, 2016, at 4- 5.\nIn its response to this office, the Board confirmed\n\naddressed\n\nthat\n\nthe\n\nBoard during the meeting's period for public comment, but asserted that his comments \" although\nappropriate at the beginning of the discussion, eventually morphed into a belligerent tirade\nagainst\n\nthe\n\nVillage officials.\n\ni3\n\nThe Board contended\n\nbehavior interfered with its\n\nthat\n\nability to proceed with the meeting and \" amounted to disorderly conduct. i4 The Board argued\nthat the Village President has a duty to \" conduct meetings that conform to conventional\nstandards\n\nof decorum.\"\n\nto leave after\n\n5\n\nIn particular, the Board asserted: \"\n\nThe Village President did ask\n\ncontinued to interrupt the public meeting. The nonsense from\n\nlasted longer than 20 minutes. During that time\n\nLetter from Michael T. Fleshman, Woods &\nGeneral,\n\nPublic\n\nAccess Bureau, Office of the Attorney General\n\nIM was belligerent and\n\nBates, P. C., to Teresa Lim, Assistant Attorney\nMarch 25, 2021), at 2.\n\n4 Letter from Michael T. Fleshman, Woods & Bates, P. C., to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General\n5 Letter from Michael T. Fleshman, Woods &\nGeneral, Public Access Bureau, Office of the Attorney General\n\nMarch 25, 2021), at 2.\nBates,\nMarch\n\nP. C., to Teresa\n25, 2021),\n\nregularly\n\ninterrupted\n\nthe public\n\nofficials.\n\ni6\n\nPresident \" did not forcibly remove\n\nAdditionally, the Board contended that the Village\nfrom the meeting;\n\nrather,\n\nvoluntarily\n\nleft the meeting after being asked to do so.\" 7 The Board stated that it was uncertain whether it\nhad adopted rules for public comment, but that it intended to adopt public comment rules at its\nApril 12, 2021, regular meeting and provided this office with a copy of its proposed rules.\ndisputed the Board's account of his\n\nIn reply to that answer,\n\nparticipation at the meeting and contended that the meeting's minutes were neither complete nor\naccurate. He asserted that his remarks lasted less than 20 minutes, noting that the meeting started\nat 7: 00 p. m. and that he arrived home at 7: 25 p. m. He stated that he had a back -and -forth\nexchange with the Village President and one of the Board trustees, who \" did speak of having a\nmeeting about the flooding and went on to tell me how busy he was with the streets and\nS\nalley's[.]\"\nacknowledged that he \" did interrupt [ that trustee] at one point and asked\nif he was the only one on the board that could do anything. n9\n\nHowever, he asserted, in relevant\n\npart:\n\nI did express frustration with being 2 years of dealing with the\nissue, however I cut no one off, (other than I explained above) and\n\nthough I may have raised my voice in frustration, I did not yell or\nget louder. I did not tell the board \" they needed to turn themselves\n\nover to the county\" I did tell them that if they were not going to do\nanything that they should turn the village over to the county to\nrun. Ltof\n\nThis office also has reviewed the meeting minutes, which state, in relevant part:\n\n6 Letter from Michael T. Fleshman, Woods &\n\nBates, P. C., to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (March 25, 2021), at 2.\n7 Letter from Michael T. Fleshman,\n\nWoods &\n\nBates, P. C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (March 25, 2021), at 2.\nLetter from\n\nto Teresa Lim, Assistant Attomey General, Public Access Bureau,\n\nOffice of the Attorney General (undated).\nLetter\n\nfrom\n\nto Teresa Lim, Assistant Attomey General, Public Access Bureau,\n\nOffice of the Attorney General (undated).\n10 Letter from\nOffice\n\nbegan raising his voice and yelling that it had been 2\n\nyears and still nothing had been done. When the board members\ntried to speak,\n\ncut them off and began to talk even\n\nlouder. He was becoming belligerent and using improper language\nand told the board they needed to turn themselves over to the\n1111\ncounty, as the board was doing nothing.\nThis office is unable to conclude from these conflicting accounts that the Board\nability to address its members. Although the Board did not\nhave public comment rules at the time of the meeting, the head of a public body may take\nmeasures to preserve decorum and ensure that a meeting is conducted in an orderly and efficient\nimproperly restricted\n\nSee Ill. Att' y Gen. PAC Req. Rev. Ltr. 53888, issued April 30, 2020, at 4 (\" Even\n\nmanner.\n\nwithout public comment rules, the head of a public body has the authority and responsibility to\nrun a civil and businesslike meeting, including the inherent authority to put a stop to conduct that\ninterferes with the orderly conduct of a meeting.\").\n\nOn the other hand, disagreement over the\n\ncontent of a speaker's comments, such as comments expressing disapproval of a board's\nmanagement of public business, is not evidence that the speaker is disturbing a meeting, as\ndiscussed\n\nabove.\n\nThe Public Access Bureau has previously\n\ndetermined\n\nthat \"[\n\nw] hen criticism\n\ninvolves the conduct of present or former public officials in the performance of their public\nduties, significant\n\nlatitude\n\nmust\n\nbe allowed.\"\n\nI11. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued\n\nApril 5, 2016, at 3 (restricting comments criticizing a public official by name impermissible).\n\noccurred\nthan\n\nHere, the parties dispute the specific nature of the back -and -forth exchange that\ncomments lasted longer\nduring public comment. The Board contended that\n\n20 minutes and became disruptive\n\nto the meeting,\n\ndenied that he was\n\nwhile\n\npermitted to speak for that long and contended that he was simply critiquing the Board's handling\nof Village matters. Because of this conflicting information and in the absence of an audio or\nvideo\n\nrecording that documents\n\nthe\n\nprecise content of\n\ncomments and the manner in\n\nwhich they were delivered, this office has insufficient evidence from which it could conclude\nthat the Board violated section 2. 06(g) of OMA during its March 8, 2021, meeting.\nNonetheless, the Office of the Public Access Counselor is charged with providing\nadvice\n\nand education to both public officials and the public. See 15 ILCS 205/ 7(a), (b), (c)\n\nWest 2020).\n\nTo that end, the Board indicated that it planned to adopt rules of order for public\ncomment at its scheduled April 12, 2021, meeting. If it has not already done so, this office\nadvises the Board to adopt reasonable rules governing public comment. In addition, the Board\nshould be mindful of providing members of the public with wide latitude when they are\ncriticizing public officials in the performance of their public duties, notwithstanding that the\nVillage\n\nof Broadwell,\n\nRegular\n\nMeeting,\n\nMarch\n\nofficials are not required to respond to those criticisms or comments. 12 At the same time, we\n\nnote that a public body is justified in terminating speakers whose comments are profane or\ndelivered in a disorderly manner that disrupts the proceedings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n67369 o 206g proper mun\ncc:\n\nVia electronic mail\n\nMr. Michael T. Fleshman\n\nAttorney for Village of Broadwell\nWoods &\n\nBates, P. C.\n\n306 Clinton Street\nLincoln, Illinois 62656\nmichael@woodsandbates. com\n\nSee Ill. Att' y Gen. PAC\nrequire\n\nany\n\nresponse\n\nby\n\nor answers\n\nReq. Rev. Ltr. 37391,\n\nfrom public officials.\")\n\nissued\n\nJanuary\n\n11,\n\n2016, at 7 (\" OMA does not"}
{"id":1354,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-04-08","case_number":null,"request_numbers":["68199"],"title":"New Trier Township school board's 30-minute public comment limit did not violate OMA","filename":"68199, issued April 8, 2022.pdf","rel_path":null,"word_count":2203,"summary":"A requester challenged the New Trier Township High School District 203 Board of Education's policy limiting public comment to 30 minutes per meeting. The PAC determined that the policy was not a violation of the Open Meetings Act as it was applied reasonably.","plain_summary":"This determination addresses whether a school board's public comment rule imposing a 30-minute time limit per meeting violated section 2.06(g) of the Open Meetings Act. The Public Access Bureau concluded that the Board of Education of New Trier Township High School District 203 did not violate section 2.06(g), because the record showed the 30-minute limit had in practice accommodated all interested speakers and could be extended at the presiding officer's discretion. The reasoning applied is that a public body may adopt reasonable time, place, and manner restrictions on public comment so long as they tend to accommodate rather than unreasonably restrict the statutory right to address the body, and a facially reasonable time limit is not a violation absent evidence it was applied to arbitrarily exclude speakers. A separate allegation concerning a 2017 meeting was time-barred under section 3.5(a), and a separate allegation about an address-disclosure requirement was outside the scope of the request for review, though the Bureau noted in an educational capacity that such a requirement had previously been held to violate the Act in a binding opinion.","holding":"A public body's facially reasonable public-comment time limit, applied in a manner that has accommodated all interested speakers and permits discretionary extension, does not violate section 2.06(g) of OMA absent evidence of arbitrary or discriminatory application.","legal_question":"Does a public body's policy limiting the total duration of public comment to 30 minutes per meeting violate the requirement in section 2.06(g) of the Open Meetings Act to permit public comment?","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of New Trier Township High School District 203","requesting_party":"Mr. [Name Redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The legality of a 30-minute time limit imposed on public comment periods during school board meetings.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Reasonable-rules/68199, issued April 8, 2022.pdf","sha256":"4969eed64fe51c1bb0a394d4d9812338f7797f4affdfda46592e235efd02a386","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","school board","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 8, 2022\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian P. Crowley\n\nFranczek, P.C.\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\nbpc@franczek. com\nRE: OMA Request for Review – Temporary File No. 2021- PAC- S- 0073;\n\nPermanent File No. 2021 PAC 68199\nDear\n\nand Mr. Crowley:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\n\nBureau is unable to conclude that the Board of Education of New Trier Township High School\nDistrict 203 ( Board) improperly restricted public comment pursuant to its public comment rule\n\nthat generally limits the public comment time period to 30 minutes per meeting.\nIn his April 24, 2021, Request for Review,\n\nstated\n\nthat the Board had recently implemented public comment rules that place a 30- minute time limit\n\non the public comment period at Board meetings. He alleged that this policy violates section\n2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) ( West 2020)) because it would allow the Board to\n\narbitrarily prohibit any number of individuals from addressing its members, and could result in\nthe Board choosing speakers based only on the content of their speech.\nOn April 29, 2021, this office sent a copy of\n\nRequest for\n\nReview to the Board President and requested a written response to his allegation that the Board's\nrules violate section 2.06( g) of OMA by improperly restricting public comment. This office also\n\nrequested a copy of the Board's current rules governing public comment. On May 11, 2021, this\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brian P. Crowley\n\nApril 8, 2022\nPage 2\n\noffice received those materials. On that same date, this office forwarded a copy of the Board's\nresponse to\n\nand notified him of his opportunity to reply. On May 19, 2021,\n\nthis office received his reply. On February 13, 2022, after the Public Access Bureau's access to\nits prior determinations was restored, 1\n\nsubmitted a supplemental reply.\n\nDETERMINATION\nSection 2.06( g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" \" The plain language of section 2.06( g) of OMA provides that individuals are entitled to\n\naddress a public body subject only to a public body's established and recorded rules.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 4.\nAlthough OMA does not specifically address the types of public comment rules\n\nthat a public body may adopt, courts have clarified that, under the First Amendment to the U.S.\nConstitution, public bodies may promulgate reasonable \" time, place, and manner\" restrictions\n\nthat are narrowly-tailored and serve a significant governmental interest. See I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 923 ( N.D. Ill. 2009). \" For example, a\n\npublic body may legitimately prescribe reasonable time limits for public comment.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. However, such rules must tend\nto accommodate, rather than to unreasonably restrict, the right to address public officials. See\n\nI.A. Rana Enterprises, Inc., 630 F. Supp. 2d at 923-25; Timmon v. Wood, 633 F. Supp. 2d 453,\n459 ( W.D. Mich. 2008).\nIn response to this office' s request for a copy of the Board' s rules regarding public\n\ncomment, the Board provided copies of two versions of Board Policy 2:230: the one in effect at\nthe time of\n\nRequest for Review, which was last revised on December 16,\n\n2019, and the one enacted on May 3, 2021. The former version provided: \"Normally, a\nmaximum of thirty minutes will be allocated for [ the public comment] portion of the meeting;\n\nhowever, this time limit may be altered at the discretion of the presiding officer.\" The new\nversion states:\nFor an overall minimum of 30 minutes during each regular and\n\nspecial open meeting, any person may comment to or ask questions\nof the Board ( public participation), as subject to the reasonable\n\nconstraints established and recorded in this policy's guidelines\nbelow. Normally, a maximum of thirty minutes will be allocated\n\n1Because of a breach to the Attorney General's Office's computer network, the Public Access\nBureau was unable to access prior determinations for a period of time while this matter was pending.\n\n\fMr. Brian P. Crowley\n\nApril 8, 2022\nPage 3\n\nfor this portion of the meeting; however, this time limit may be\naltered at the discretion of the presiding officer. The Board\n\nPresident shall have the authority to determine procedural matters\nregarding public participation not otherwise defined in Board\n\npolicy. (Emphasis in original.)\nIn its response to this office, the Board argued that the Public Access Bureau has\npreviously determined, in a non- binding determination in 2011 PAC 12740, 2 that a 30- minute\n\ntime limit for public comment is reasonable. The Board stated that the model policy from the\nIllinois Association of School Boards suggests that school boards allow a minimum of 30\n\nminutes of time for public comments, and that many school boards in Illinois follow these\nguidelines. Additionally, the Board stated that at its meetings from December 2020 through\n\nApril 2021, it received between zero and seven requests for public comment, which permitted all\nspeakers to contribute their public comments within the 30 minutes that were allotted. On\n\ncertain occasions when \"more members of the public than usual sought to participate during\npublic comment to provide opinions on school reopening options during the pandemic[,]\"\n\n3\n\naccording to the Board, it extended the 30-minute time limit for public comment to 60 minutes.\nThe Board argued that by limiting public comment to 30 minutes, it can focus on\nits priorities of deliberating and acting on public business, and ensure it is able to conclude\nmeetings at a reasonable hour. The Board further contended that\n\nRequest\n\nfor Review failed to identify any instances in which its public comment policy was used to\nprohibit a member of the public from having the opportunity to provide public comment or\n\narbitrarily limit specific public comments.\" 4\nIn his initial reply,\n\nargued that the Board's \" 30 minute time\n\nlimit is insufficient to ensure that any restrictions will, in fact, be ' content- neutral.'\" 5\n\nstated that while the Board described its usual processes at its meetings, in which\nspeakers are not arbitrarily chosen, he believes that the \" Board President could, at any moment,\n\n2Ill. Att'y Gen. PAC Req. Rev. Ltr. 12740, issued April 22, 2011, at 3.\n3Letter from Brian P. Crowley to Jane Sternecky, Assistant Attorney General, Public Access\nBureau ( May 11, 2021), at [ 3].\n4Letter from Brian P. Crowley to Jane Sternecky, Assistant Attorney General, Public Access\nBureau (May 11, 2021), at [3].\n5Letter from\nAccess Bureau (May 19, 2021), at 2.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n\fMr. Brian P. Crowley\n\nApril 8, 2022\nPage 4\n\nchoose to alter the process for deciding which members of the public will be allowed to speak.\" 6\nstated that at a February 20, 2017, Board meeting, the Board President noted\n\nthat the Board had received over 100 comment cards to submit public comment; the Board\nPresident reduced each speaker' s allotted comment time from five minutes to three minutes, and\n\nallowed 57 minutes of public comments.\n\nalleged that at this meeting, \"many\n\nindividuals were not afforded the opportunity to speak.\" 7\nfurther argued that the Board could conduct more frequent\n\nmeetings if it is concerned about concluding its monthly meetings at a reasonable time, and\ncountered the Board' s reliance on the Illinois Association of School Boards' policy by noting that\n\nthis recommendation is for school boards to allow a minimum of 30 minutes for public comment.\nIn his supplemental reply regarding 2011 PAC 12740,\n\nargued\n\nthat this determination does not conclude whether a 30- minute time limit for public comment is\n\nreasonable. Rather, according to\n\nthis determination concerned an allegation\n\nregarding accommodation of a large crowd and an allegation regarding the reasonableness of a\n\npublic comment rule requiring that public comments be submitted on cards prior to the meeting.\nAs an initial matter, in his reply,\nalso alleged that the Board\ncontinues to ask speakers to provide an address before addressing the Board, and maintains this\nrequest' as a specific Board policy, despite your office' s binding opinion that such a ' requirement'\n\nis not reasonable and is a violation of OMA.\"8 ( Emphasis in original.) However,\nRequest for Review alleged that the Board' s public comment policy was\n\nimproper only with regard to the time limit. Therefore, that claim is outside the scope of this\nmatter. In this office' s educational capacity, 9 this office notes that the Attorney General has\n\nissued a binding opinion which concluded that \"requiring speakers to state their home addresses\nprior to addressing public bodies violates section 2.06( g) of OMA, even if such a rule is\n\nestablished and recorded by the public body.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, at 7.\n\n6Letter from\nAccess Bureau (May 19, 2021), at 2.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n7Letter from\nAccess Bureau ( May 19, 2021), at 2.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n8Letter from\nAccess Bureau (May 19, 2021), at 4.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n9In addition to resolving Requests for Review, the Office of the Public Access Counselor is\ncharged with providing advice and education to both the public and public officials. 15 ILCS 205/7(a), ( b), (c)\nWest 2020).\n\n\fMr. Brian P. Crowley\n\nApril 8, 2022\nPage 5\n\nSecond, with regard to\n\nallegation that the Board may have\n\nviolated OMA by reducing each speaker' s allotted time at its February 20, 2017, meeting, section\n\n3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides, in pertinent part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nMore than 60 days had elapsed between the February 20, 2017, meeting and\nRequest for Review, and even if\n\nonly discovered this alleged\n\nviolation while preparing his reply, more than two years had elapsed since this alleged violation.\nAccordingly, section 3.5(a) of OMA precludes this office from analyzing what transpired at the\n\nBoard's February 20, 2017, meeting.\nWith regard to the applicability of the Public Access Bureau' s determination in\n\n2011 PAC 12740, this office agrees with\n\nassertion that this non-binding\n\ndetermination did not come to any conclusions regarding the appropriateness of a 30- minute time\n\nlimit on public comment. Rather, the determination letter concerned the accessibility of a public\nbody' s meeting and the public body' s practice of requiring those who wished to provide public\n\ncomment to fill out a comment card. Ill. Att'y Gen. PAC Req. Rev. Ltr. 12740, at 2-3.\nNonetheless, the facts this office has received concerning\n\nRequest for\n\nReview do not indicate that the Board violated OMA in connection with its 30-minute time limit\non public comment. The available evidence indicates that the Board' s 30- minute time limit had,\n\nin recent history, permitted all interested parties to provide public comment. Thus, in practice,\nthe rule had been reasonable for this public body under its particular circumstances.\n\nBy\n\npermitting the Board President to extend the time to provide public comment based on the\ncircumstances, the Board appears to have promulgated a rule that is designed to accommodate\n\npublic comment while conducting meetings efficiently. Despite\n\nclaim that\n\nthe Board could misuse its 30- minute time limit in an arbitrary or discriminatory manner, this\n\noffice received no facts suggesting that the Board applied the rule in a manner that improperly\nrestricts the right to public comment. Accordingly, based on the facts presented in this particular\n\nmatter, this office concludes that the Board did not violate section 2.06(g) of OMA in connection\nwith its 30- minute time limit on public comment.\n\n\fMr. Brian P. Crowley\n\nApril 8, 2022\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nquestions, you may contact me by e-mail at jane.sternecky@ilag.gov.\nVery truly yours,\n\nJANE STERNECKY\nAssistant Attorney General\n\nPublic Access Bureau\nS-0073 o 206g pub comment proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's 30-minute public comment limit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68199/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 8, 2022\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian P. Crowley\n\nFranczek, P.C.\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\nbpc@franczek. com\nRE: OMA Request for Review – Temporary File No. 2021- PAC- S- 0073;\n\nPermanent File No. 2021 PAC 68199\nDear\n\nand Mr. Crowley:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\n\nBureau is unable to conclude that the Board of Education of New Trier Township High School\nDistrict 203 (Board) improperly restricted public comment pursuant to its public comment rule\n\nthat generally limits the public comment time period to 30 minutes per meeting.\nIn his April 24, 2021, Request for Review,\n\nstated\n\nthat the Board had recently implemented public comment rules that place a 30- minute time limit\n\non the public comment period at Board meetings. He alleged that this policy violates section\n2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2020)) because it would allow the Board to\n\narbitrarily prohibit any number of individuals from addressing its members, and could result in\nthe Board choosing speakers based only on the content of their speech.\nOn April 29, 2021, this office sent a copy of\n\nRequest for\n\nReview to the Board President and requested a written response to his allegation that the Board's\nrules violate section 2.06(g) of OMA by improperly restricting public comment. This office also\n\nrequested a copy of the Board's current rules governing public comment. On May 11, 2021, this\n\noffice received those materials. On that same date, this office forwarded a copy of the Board's\nresponse to\n\nand notified him of his opportunity to reply. On May 19, 2021,\n\nthis office received his reply. On February 13, 2022, after the Public Access Bureau's access to\nits prior determinations was restored, 1\n\nsubmitted a supplemental reply.\n\nDETERMINATION\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" \" The plain language of section 2.06(g) of OMA provides that individuals are entitled to\n\naddress a public body subject only to a public body's established and recorded rules.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 4.\nAlthough OMA does not specifically address the types of public comment rules\n\nthat a public body may adopt, courts have clarified that, under the First Amendment to the U.S.\nConstitution, public bodies may promulgate reasonable \" time, place, and manner\" restrictions\n\nthat are narrowly-tailored and serve a significant governmental interest. See I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 923 (N.D. Ill. 2009). \" For example, a\n\npublic body may legitimately prescribe reasonable time limits for public comment.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. However, such rules must tend\nto accommodate, rather than to unreasonably restrict, the right to address public officials. See\n\nI.A. Rana Enterprises, Inc., 630 F. Supp. 2d at 923-25; Timmon v. Wood, 633 F. Supp. 2d 453,\n459 (W.D. Mich. 2008).\nIn response to this office's request for a copy of the Board's rules regarding public\n\ncomment, the Board provided copies of two versions of Board Policy 2:230: the one in effect at\nthe time of\n\nRequest for Review, which was last revised on December 16,\n\n2019, and the one enacted on May 3, 2021. The former version provided: \"Normally, a\nmaximum of thirty minutes will be allocated for [ the public comment] portion of the meeting;\n\nhowever, this time limit may be altered at the discretion of the presiding officer.\" The new\nversion states:\nFor an overall minimum of 30 minutes during each regular and\n\nspecial open meeting, any person may comment to or ask questions\nof the Board (public participation), as subject to the reasonable\n\nconstraints established and recorded in this policy's guidelines\nbelow. Normally, a maximum of thirty minutes will be allocated\n\n1 Because of a breach to the Attorney General's Office's computer network, the Public Access\nBureau was unable to access prior determinations for a period of time while this matter was pending.\n\nfor this portion of the meeting; however, this time limit may be\naltered at the discretion of the presiding officer. The Board\n\nPresident shall have the authority to determine procedural matters\nregarding public participation not otherwise defined in Board\n\npolicy. (Emphasis in original.)\nIn its response to this office, the Board argued that the Public Access Bureau has\npreviously determined, in a non- binding determination in 2011 PAC 12740, 2 that a 30- minute\n\ntime limit for public comment is reasonable. The Board stated that the model policy from the\nIllinois Association of School Boards suggests that school boards allow a minimum of 30\n\nminutes of time for public comments, and that many school boards in Illinois follow these\nguidelines. Additionally, the Board stated that at its meetings from December 2020 through\n\nApril 2021, it received between zero and seven requests for public comment, which permitted all\nspeakers to contribute their public comments within the 30 minutes that were allotted. On\n\ncertain occasions when \"more members of the public than usual sought to participate during\npublic comment to provide opinions on school reopening options during the pandemic[,]\"\n\n3\n\naccording to the Board, it extended the 30-minute time limit for public comment to 60 minutes.\nThe Board argued that by limiting public comment to 30 minutes, it can focus on\nits priorities of deliberating and acting on public business, and ensure it is able to conclude\nmeetings at a reasonable hour. The Board further contended that\n\nRequest\n\nfor Review failed to identify any instances in which its public comment policy was used to\nprohibit a member of the public from having the opportunity to provide public comment or\n\narbitrarily limit specific public comments.\" 4\nIn his initial reply,\n\nargued that the Board's \" 30 minute time\n\nlimit is insufficient to ensure that any restrictions will, in fact, be ' content- neutral.'\" 5\n\nstated that while the Board described its usual processes at its meetings, in which\nspeakers are not arbitrarily chosen, he believes that the \" Board President could, at any moment,\n\n2 Ill. Att'y Gen. PAC Req. Rev. Ltr. 12740, issued April 22, 2011, at 3.\n3 Letter from Brian P. Crowley to Jane Sternecky, Assistant Attorney General, Public Access\nBureau (May 11, 2021), at [ 3].\n\nchoose to alter the process for deciding which members of the public will be allowed to speak.\" 6\nstated that at a February 20, 2017, Board meeting, the Board President noted\n\nthat the Board had received over 100 comment cards to submit public comment; the Board\nPresident reduced each speaker's allotted comment time from five minutes to three minutes, and\n\nallowed 57 minutes of public comments.\n\nalleged that at this meeting, \"many\n\nindividuals were not afforded the opportunity to speak.\" 7\nfurther argued that the Board could conduct more frequent\n\nmeetings if it is concerned about concluding its monthly meetings at a reasonable time, and\ncountered the Board's reliance on the Illinois Association of School Boards' policy by noting that\n\nthis recommendation is for school boards to allow a minimum of 30 minutes for public comment.\nIn his supplemental reply regarding 2011 PAC 12740,\n\nargued\n\nthat this determination does not conclude whether a 30- minute time limit for public comment is\n\nreasonable. Rather, according to\n\nthis determination concerned an allegation\n\nregarding accommodation of a large crowd and an allegation regarding the reasonableness of a\n\npublic comment rule requiring that public comments be submitted on cards prior to the meeting.\nAs an initial matter, in his reply,\nalso alleged that the Board\ncontinues to ask speakers to provide an address before addressing the Board, and maintains this\nrequest' as a specific Board policy, despite your office's binding opinion that such a ' requirement'\n\nis not reasonable and is a violation of OMA.\"8 (Emphasis in original.) However,\nRequest for Review alleged that the Board's public comment policy was\n\nimproper only with regard to the time limit. Therefore, that claim is outside the scope of this\nmatter. In this office's educational capacity, 9 this office notes that the Attorney General has\n\nissued a binding opinion which concluded that \"requiring speakers to state their home addresses\nprior to addressing public bodies violates section 2.06(g) of OMA, even if such a rule is\n\nestablished and recorded by the public body.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, at 7.\n\n6 Letter from\nAccess Bureau (May 19, 2021), at 2.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n7 Letter from\nAccess Bureau (May 19, 2021), at 2.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n8 Letter from\nAccess Bureau (May 19, 2021), at 4.\n\nto Jane Sternecky, Assistant Attorney General, Public\n\n9 In addition to resolving Requests for Review, the Office of the Public Access Counselor is\ncharged with providing advice and education to both the public and public officials. 15 ILCS 205/7(a), (b), (c)\n\nSecond, with regard to\n\nallegation that the Board may have\n\nviolated OMA by reducing each speaker's allotted time at its February 20, 2017, meeting, section\n\n3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides, in pertinent part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nMore than 60 days had elapsed between the February 20, 2017, meeting and\nRequest for Review, and even if\n\nonly discovered this alleged\n\nviolation while preparing his reply, more than two years had elapsed since this alleged violation.\nAccordingly, section 3.5(a) of OMA precludes this office from analyzing what transpired at the\n\nBoard's February 20, 2017, meeting.\nWith regard to the applicability of the Public Access Bureau's determination in\n\n2011 PAC 12740, this office agrees with\n\nassertion that this non-binding\n\ndetermination did not come to any conclusions regarding the appropriateness of a 30- minute time\n\nlimit on public comment. Rather, the determination letter concerned the accessibility of a public\nbody's meeting and the public body's practice of requiring those who wished to provide public\n\ncomment to fill out a comment card. Ill. Att'y Gen. PAC Req. Rev. Ltr. 12740, at 2-3.\nNonetheless, the facts this office has received concerning\n\nRequest for\n\nReview do not indicate that the Board violated OMA in connection with its 30-minute time limit\non public comment. The available evidence indicates that the Board's 30- minute time limit had,\n\nin recent history, permitted all interested parties to provide public comment. Thus, in practice,\nthe rule had been reasonable for this public body under its particular circumstances.\n\nBy\n\npermitting the Board President to extend the time to provide public comment based on the\ncircumstances, the Board appears to have promulgated a rule that is designed to accommodate\n\npublic comment while conducting meetings efficiently. Despite\n\nclaim that\n\nthe Board could misuse its 30- minute time limit in an arbitrary or discriminatory manner, this\n\noffice received no facts suggesting that the Board applied the rule in a manner that improperly\nrestricts the right to public comment. Accordingly, based on the facts presented in this particular\n\nmatter, this office concludes that the Board did not violate section 2.06(g) of OMA in connection\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nquestions, you may contact me by e-mail at jane.sternecky@ilag.gov.\nVery truly yours,\n\nJANE STERNECKY\nAssistant Attorney General\n\nPublic Access Bureau\nS-0073 o 206g pub comment proper sd"}
{"id":1356,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-07-13","case_number":null,"request_numbers":["68219"],"title":"City of DeKalb City Council violated OMA with improper closed session discussion of City Clerk","filename":"68219, issued July 13, 2022__1.pdf","rel_path":null,"word_count":3181,"summary":"A requester alleged that the City of DeKalb City Council improperly discussed the City Clerk in a closed session; the PAC determined the discussion did not fall under the cited OMA exception.","plain_summary":"A citizen complained that the DeKalb City Council held a private meeting to discuss the City Clerk. The Illinois Attorney General's office reviewed the matter and found that the City Council did not have the legal authority to remove the elected City Clerk, so the closed session was improper under the Open Meetings Act. The determination did not include any order to release the minutes or recording.","holding":"The City of DeKalb City Council held an improper closed session discussion about the City Clerk.","legal_question":"Whether the City of DeKalb City Council violated the Open Meetings Act by discussing the City Clerk in a closed session under the exception for the selection of a person to fill a public office (5 ILCS 120/2(c)(3)).","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(3)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(3)"],"public_body":"City of DeKalb City Council","requesting_party":"Matthew D. Rose","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council held a closed session to discuss the City Clerk and recording secretary position.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_d/public-office/68219, issued July 13, 2022.pdf","sha256":"f0592ddfe84586072701307c06a3027241319b479642295163b612f235fb6e98","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","city clerk","open meetings act","public records"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 13, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Cohen Barnes\nMayor\nCity of DeKalb\n[street address redacted for site publication -- see original PDF]\nCohen. barnes@cityofdekalb. com\nRE: OMA Request for Review – 2021 PAC 68219\nDear\n\nand Mr. Barnes:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the City of DeKalb ( City) City Council ( City Council) held an improper closed\nsession discussion about the City Clerk during its October 25, 2021, meeting.\nIn his Request for Review,\nalleged that the City Council\nviolated OMA by entering closed session to discuss the City Clerk pursuant to the exception–– to\nthe general requirement that public bodies openly discuss public business–– in section 2(c)(3) of\nOMA (5 ILCS 120/ 2(c)( 3) (West 2020)). On November 5, 2021, this office sent a copy of the\nRequest for Review to the City Council and asked it to provide a verbatim copy of the closed\nsession recording of the City Council' s October 25, 2021, meeting and copies of the agenda and\nopen and closed session minutes ( draft form if necessary). We also requested a written response\nto the allegation that the City Council improperly discussed the City Clerk in closed session. On\nNovember 9, 2021, counsel for the City Council furnished those materials. On November 15,\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 2\n\n2021, this office sent\nreply on November 23, 2021.\n\na copy of the City Council' s written response; he submitted a\n\nBACKGROUND\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/ 2(a), ( c)\nWest 2020). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(3) of OMA permits a public body to enter closed session to discuss:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\noffice, when the public body is given power to remove the\noccupant under law or ordinance. ( Emphasis added.)\nRequest for Review alleged that the City Council does not have authority to\ndiscipline the City Clerk, who is an elected official. Among other provisions, the City Council' s\nresponse to the office cited sections 3.1-10-50(b) and 3.1-10-50(c)( 1) of the Illinois Municipal\nCode 1 as authorizing the City Council to remove the City Clerk from office:\nb) * * * A vacancy occurs in an office by permanent\nphysical or mental disability rendering the person incapable of\nperforming the duties of the office. The corporate authorities have\nthe authority to make the determination whether an officer is\nincapable of performing the duties of the office because of a\npermanent physical or mental disability. A finding of mental\ndisability shall not be made prior to the appointment by a court of a\nguardian ad litem for the officer or until a duly licensed doctor\ncertifies, in writing, that the officer is mentally impaired to the\nextent that the officer is unable to effectively perform the duties of\nthe office. If the corporate authorities find that an officer is\nincapable of performing the duties of the office due to\npermanent physical or mental disability, that person is\n165 ILCS 5/3.1-10-50(b), (c)(1) (West 2020), as amended by Public Act 102- 15, effective June 17,\n2021.\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 3\n\nremoved from the office and the vacancy of the office occurs on\nthe date of the determination.\nc) Vacancy by other causes.\n1) Abandonment and other causes. A\nvacancy occurs in an office by reason of\nabandonment of office; removal from office; or\nfailure to qualify; or more than temporary removal\nof residence from the municipality; or in the case of\nan alderperson of a ward or councilman or trustee of\na district, more than temporary removal of residence\nfrom the ward or district, as the case may be. The\ncorporate authorities have the authority to determine\nwhether a vacancy under this subsection has\noccurred. If the corporate authorities determine that\na vacancy exists, the office is deemed vacant as of\nthe date of that determination for all purposes[.]\nEmphasis added.)\nThe City Council' s response stated that the City Council \" lawfully held the Meeting to discuss\nthe City Clerk' s performance of his duties as the City Council' s recording secretary, the City\nClerk's vacancy of his elected office by reasons of abandonment or disability, and the selection\nof the City Council' s recording secretary.\" 2 The response stated that the City Clerk failed to\nattend several meetings during the summer of 2021, and that the City Council discussed in closed\nsession whether he \" abandoned his office by, among other considerations, utterly failing to\noccupy his physical office at City Hall, hold office hours to the general public, or submit timely,\naccurate, and complete minutes of the City Council' s meetings.\" 3\nIn his reply,\nasserted that the closed session discussion was\nunauthorized because neither the Illinois Municipal Code nor the City's Municipal Code set forth\na standard for what constitutes abandonment of office. The reply also appears to contend that the\nCity Council cannot discuss in closed session whether the City Clerk abandoned his office\nbecause members of the City Council cannot be penalized for missing meetings. In addition, the\nreply noted that section 3.1-10-50(b) of the Illinois Municipal Code restricts a city council from\n\n2E-mail from Matthew D. Rose, Donahue & Rose, P.C., to Assistant Attorney General [ Steve]\nSilverman ( November 15, 2021).\n3E-mail from Matthew D. Rose, Donahue & Rose, P.C., to Assistant Attorney General [ Steve]\nSilverman ( November 15, 2021).\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 4\n\nmaking a finding of mental disability until the appointment of a guardian ad litem for the\nofficeholder or a determination of mental impairment by a licensed doctor. 4\nANALYSIS\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E.2d 359, 372 ( 2012). Where the language of a statute is clear and\nunambiguous, a reviewing body \" may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\" Hayashi v.\nIllinois Department of Financial and Professional Regulation, 2014 IL 116023, ¶ 16, 25 N.E.3d\n570, 576 ( 2014). Statutes must be construed \" as a whole, so that no part is rendered meaningless\nor superfluous.\" People v. Jones, 223 Ill. 2d 569, 581 ( 2006).\nThe plain language of section 2(c)(3) of OMA only permits a municipal public\nbody such as a city council to privately deliberate on an officeholder' s performance, discipline or\nremoval from office if it has been \" given the power to remove the occupant under law or\nordinance.\" ( Emphasis added.) 5 ILCS 120/ 2(c)(3) (West 2020). The City has a managerial\nform of government. Under that form of government, the City Council is authorized to appoint a\ncity manager who \" may at any time be removed from office by a majority vote of the members\nof the council[.]\" 65 ILCS 5/5-3-7 (West 2020), as amended by Public Act 102- 15, effective\nJune 17, 2021. No provision of the Illinois Municipal Code governing the managerial form of\ngovernment permits the City Council to remove the city clerk, who is an elected officer, from\noffice.\nBy comparison, in the Commission form of government the city clerk is among\nnumerous officers who are appointed by a majority vote of the City Council. 5 Section 4-5-9 of\nthe Illinois Municipal Code 6 further provides: \" Except as otherwise provided in this article or by\nlaw, any officer or employee who has been elected or appointed by the council in accordance\n4The reply also questions whether the City Manager or City Council violated Federal or State\nstatutes by failing to attempt to provide accommodations for disabilities, and alleges that the City Council made an\nunnecessary amendment to the City Code to appoint another individual as its recording secretary. This office does\nnot have authority to review those claims. See 15 ILCS 205/ 7 (West 2020) ( limiting the Public Access Counselor' s\nauthority to reviewing alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. ( West\n2020)).\n565 ILCS 5/4-5-4(a) ( West 2020).\n665 ILCS 5/4-5-9 (West 2020).\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 5\n\nwith the provisions of this article may be removed from office at any time by a vote of a majority\nof the council members.\" If the legislature intended to authorize city councils with a managerial\nform of government to remove a city clerk from office, it would have expressly provided that\nauthorization as it did for city councils in a commission form of government.\nThe City Council' s response to this office equates a determination that there is a\nvacancy\" in an office as tantamount to removing the officeholder. Section 3.1-10-50(b) of the\nIllinois Municipal Code provides that \"[ i]f corporate authorities find that an officer is incapable\nof performing the duties of the office due to permanent physical or mental disability, that person\nis removed from the office and the vacancy of the office occurs on the date of the\ndetermination.\" Thus, a determination by the City Council that the City Clerk's office is vacant\ndue to the fact that the City Clerk is unable to perform his duties because of a mental or physical\ndisability has the effect of removing the City Clerk from office. However, this power to remove\ncan only be exercised if a guardian ad litem is appointed or licensed doctor makes a written\nfinding that the officer is impaired; there is no indication that either of those conditions were\nsatisfied at the time of the closed session discussion. Further, the City Council only briefly\ntouched on the issue of disability in closed session, and that discussion did not focus on the\npossibility of removing the City Clerk from office because of a disability. As discussed below,\nmost of the discussion concerned the City Clerk' s performance with respect to recording minutes\nof City Council meetings. The narrowly construed section 2(c)( 3) exception does not permit the\nCity Council to engage in wide- ranging discussions of an officer' s performance or discipline or\nremoval from office simply because a provision of the Municipal Code authorizes the City\nCouncil to declare the City Clerk' s office vacant under certain conditions, such as if it determines\na disability impaired the City Clerk from performing his public duties after either the\nappointment of a guardian ad litem or a finding of impairment due to disability by a licensed\ndoctor.\nThe City Council also asserts that section 2(c)(3) of OMA authorized the City\nCouncil to discuss in closed session whether the City Clerk' s office was vacant by reason of\nabandonment. Section 3.1-10-50(c)(1) of the Illinois Municipal Code provides that \"[ a] vacancy\noccurs in an office by reason of abandonment of office; removal from office; or failure to\nqualify; or more than temporary removal of residence from the municipality; or in the case of an\nalderperson of a ward or councilman or trustee of a district, more than temporary removal of\nresidence from the ward or district, as the case may be.\" ( Emphasis added.) \"[ R]emoval from\noffice\" is one basis for determining that a vacancy exists, but that reason is separate and distinct\nfrom \" abandonment of office\" in section 3.1-10-50(c)( 1) of the Illinois Municipal Code. Thus,\nthe ability to determine that an office is vacant by reason of abandonment does not empower the\nCity Council to remove the City Clerk from office. To conclude otherwise would render\nsuperfluous the term \" removal from office[ ]\" in section 3.1-10-50(c)(1) of the Illinois Municipal\nCode. Moreover, section 2(c)(3) of OMA does not authorize public bodies to discuss occupants\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 6\n\nof public office in closed session if they are empowered to determine their offices are vacant.\nInstead, discussions only are permissible under that exception if \"the public body is given the\npower to remove the occupant under law or ordinance.\" 5 ILCS 120/ 2(c)(3) (West 2020).\nBased on this office' s review of the verbatim recording of the October 25, 2021,\nclosed session, 7 most of the City Council' s discussion concerned the performance of the City\nClerk with respect to recording minutes of City Council meetings. The City Council' s response\nto this office asserted that the City Council properly discussed the City Clerk' s performance as its\nrecording secretary and the appointment of its Executive Assistant to replace him as recording\nsecretary because the recording secretary position is a \" public office\" under the definition of that\nterm in section 2(d) of OMA: 8\nPublic Office\" means a position created by or under the\nConstitution or laws of this State, the occupant of which is charged\nwith the exercise of some portion of the sovereign power of this\nState. The term \" public office\" shall include members of the public\nbody, but it shall not include organizational positions filled by\nmembers thereof, whether established by law or by a public body\nitself, that exist to assist the body in the conduct of its business. 5\nILCS 120/ 2(d) (West 2020).\nIn Fazekas v. City of DeKalb, 2021 IL App (2d) 200692, ¶¶ 30-31 ___N.E.3d ___\n2021), the Illinois Appellate Court held that the City did not violate section 6(f) of article VII of\nthe Illinois Constitution 9 by passing an ordinance that created the office of executive assistant\nwith the same duties as the city clerk. The court held that section 3.1-30-5(a) of the Illinois\nMunicipal Code 10 authorized the mayor to \" create the office of executive assistant[ ]\" regardless\nof whether it was necessary to carry out the functions of government. ( Emphasis added.)\nFazekas, 2021 IL App (2d) 200692, ¶¶ 30-31 ___N.E.3d___. ___\nThe City's Municipal Code provides, in pertinent part:\n7The audio quality of the recording was impacted by what appeared to be background noise of an\nindividual continuously typing notes or draft minutes. This office suggests that the City Council put more distance\nbetween the keyboard and the recorder at future closed sessions or otherwise take measures to ensure that the\nverbatim recording is fully audible.\n\n85 ILCS 120/ 2 (West 2020), as amended by Public Acts 102- 520, effective August 20, 2021; 102558, effective August 20, 2021.\n9Ill. Const. 1970, art VII, §6(f).\n1065 ILCS 5/3.1-30-5(a) ( West 2018).\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 7\n\na) Duties. The part- time duties of the City Clerk shall\ninclude, but are not limited to: taking and preparing\nminutes of the City Council’ s proceedings; faithfully\nrecording the results of resolutions, ordinances and other\nactions approved by the City Council in said minutes;\noverseeing the review, approval and release of all\nExecutive Session minutes; * * *.\nb) Duties of the Executive Assistant. The full-time duties\nof the Executive Assistant shall include, but are not limited\nto: Acting as the Recording Secretary to the City Council\nby taking and preparing minutes of the City Council' s\nmeetings; faithfully recording the results of resolutions,\nordinances and other actions approved by the City Council\nin said minutes and journal; overseeing the review,\napproval and release of all Executive Session minutes[.]\nDeKalb, Ill. Code § 314( b), ( c) ( 2019).\nThe City Clerk and Executive Assistant are each a \" public office\" under section 2(d) of OMA.\nRecording City Council minutes and serving as the City Council' s recording secretary, however,\nare not separate public offices within the offices of the City Clerk and the Executive Assistant.\nThose responsibilities are simply among the designated duties of the City Clerk and Executive\nAssistant under the City's Municipal Code. Because the City Council' s recording secretary is not\nan occupant of a public office, section 2(c)( 3) of OMA did not authorize the City Council to hold\nclosed session discussions of the performance or appointment of the recording secretary of the\nCity Council.\nLastly, the City Council asserted that section 5-2-19 of the Illinois Municipal\nCode authorizes the City Council to approve an ordinance making the City Clerk an appointed\nofficer subject to removal by the City Council, or abolishing the office of the City Clerk. In his\nreply,\ncontends that the section 6(f) of article VII of the Illinois Constitution of 1970\nrequires a referendum to approve changing the City Clerk' s position from elected to appointed.\nIt is not necessary for this office to resolve those conflicting interpretations as the City Clerk was\nnot an appointed officer at the time of its October 25, 2021, meeting. Therefore, the City\nCouncil did not have the power to remove the City Clerk by law or ordinance when it discussed\nhim in closed session.\n11\n\nFor the reasons stated above, this office concludes that the City Council\n\n1165 ILCS 5/5-2-19 (West 2020), as amended by Public Act 102- 15, effective June 17, 2021.\n\n\fThe Honorable Cohen Barnes\nJuly 13, 2022\nPage 8\n\nimproperly discussed the City Clerk and recording secretary position in closed session pursuant\nto the section 2(c)(3) exception. This office requests that the City Council remedy that violation\nby voting to publicly disclose those portions of the closed session minutes and verbatim\nrecording. The Public Access Counselor has determined that resolution of this matter does not\nrequire the issuance of a binding opinion. If you have questions, you may contact me at (312)\n814-6756 or mailto:steven.silverman\nsteven. silverman@ilag. gov. This file is closed.\n@ilag.gov\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n68219 o 2c3 proper mun\ncc:\n\nVia electronic mail\nMr. Matthew D. Rose\nDonahue & Rose, P.C.\n9501 West Devon Avenue, Suite 702\nRosemont, Illinois 60018\nmailto:mrose@drla\nmrose@drlawpc. com\nwpc.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's closed-session discussion of the city clerk position","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68219/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 13, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Cohen Barnes\nMayor\nCity of DeKalb\n[street address redacted for site publication -- see original PDF]\nCohen. barnes@cityofdekalb. com\nRE: OMA Request for Review – 2021 PAC 68219\nDear\n\nand Mr. Barnes:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the City of DeKalb (City) City Council (City Council) held an improper closed\nsession discussion about the City Clerk during its October 25, 2021, meeting.\nIn his Request for Review,\nalleged that the City Council\nviolated OMA by entering closed session to discuss the City Clerk pursuant to the exception–– to\nthe general requirement that public bodies openly discuss public business–– in section 2(c)(3) of\nOMA (5 ILCS 120/ 2(c)(3) (West 2020)). On November 5, 2021, this office sent a copy of the\nRequest for Review to the City Council and asked it to provide a verbatim copy of the closed\nsession recording of the City Council's October 25, 2021, meeting and copies of the agenda and\nopen and closed session minutes (draft form if necessary). We also requested a written response\nto the allegation that the City Council improperly discussed the City Clerk in closed session. On\nNovember 9, 2021, counsel for the City Council furnished those materials. On November 15,\n\n2021, this office sent\nreply on November 23, 2021.\n\na copy of the City Council's written response; he submitted a\n\nBACKGROUND\nOMA requires that all meetings of a public body remain open to the public unless\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/ 2(a), (c)\nWest 2020). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\nclearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(3) of OMA permits a public body to enter closed session to discuss:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\noffice, when the public body is given power to remove the\noccupant under law or ordinance. (Emphasis added.)\nRequest for Review alleged that the City Council does not have authority to\ndiscipline the City Clerk, who is an elected official. Among other provisions, the City Council's\nresponse to the office cited sections 3.1-10-50(b) and 3.1-10-50(c)(1) of the Illinois Municipal\nCode 1 as authorizing the City Council to remove the City Clerk from office:\nb) * * * A vacancy occurs in an office by permanent\nphysical or mental disability rendering the person incapable of\nperforming the duties of the office. The corporate authorities have\nthe authority to make the determination whether an officer is\nincapable of performing the duties of the office because of a\npermanent physical or mental disability. A finding of mental\ndisability shall not be made prior to the appointment by a court of a\nguardian ad litem for the officer or until a duly licensed doctor\ncertifies, in writing, that the officer is mentally impaired to the\nextent that the officer is unable to effectively perform the duties of\nthe office. If the corporate authorities find that an officer is\nincapable of performing the duties of the office due to\npermanent physical or mental disability, that person is\n165 ILCS 5/3.1-10-50(b), (c)(1) (West 2020), as amended by Public Act 102- 15, effective June 17,\n\nremoved from the office and the vacancy of the office occurs on\nthe date of the determination.\nc) Vacancy by other causes.\n1) Abandonment and other causes. A\nvacancy occurs in an office by reason of\nabandonment of office; removal from office; or\nfailure to qualify; or more than temporary removal\nof residence from the municipality; or in the case of\nan alderperson of a ward or councilman or trustee of\na district, more than temporary removal of residence\nfrom the ward or district, as the case may be. The\ncorporate authorities have the authority to determine\nwhether a vacancy under this subsection has\noccurred. If the corporate authorities determine that\na vacancy exists, the office is deemed vacant as of\nthe date of that determination for all purposes[.]\nEmphasis added.)\nThe City Council's response stated that the City Council \" lawfully held the Meeting to discuss\nthe City Clerk's performance of his duties as the City Council's recording secretary, the City\nClerk's vacancy of his elected office by reasons of abandonment or disability, and the selection\nof the City Council's recording secretary.\" 2 The response stated that the City Clerk failed to\nattend several meetings during the summer of 2021, and that the City Council discussed in closed\nsession whether he \" abandoned his office by, among other considerations, utterly failing to\noccupy his physical office at City Hall, hold office hours to the general public, or submit timely,\naccurate, and complete minutes of the City Council's meetings.\" 3\nIn his reply,\nasserted that the closed session discussion was\nunauthorized because neither the Illinois Municipal Code nor the City's Municipal Code set forth\na standard for what constitutes abandonment of office. The reply also appears to contend that the\nCity Council cannot discuss in closed session whether the City Clerk abandoned his office\nbecause members of the City Council cannot be penalized for missing meetings. In addition, the\nreply noted that section 3.1-10-50(b) of the Illinois Municipal Code restricts a city council from\n\nmaking a finding of mental disability until the appointment of a guardian ad litem for the\nofficeholder or a determination of mental impairment by a licensed doctor. 4\nANALYSIS\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E.2d 359, 372 (2012). Where the language of a statute is clear and\nunambiguous, a reviewing body \" may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\" Hayashi v.\nIllinois Department of Financial and Professional Regulation, 2014 IL 116023, ¶ 16, 25 N.E.3d\n570, 576 (2014). Statutes must be construed \" as a whole, so that no part is rendered meaningless\nor superfluous.\" People v. Jones, 223 Ill. 2d 569, 581 (2006).\nThe plain language of section 2(c)(3) of OMA only permits a municipal public\nbody such as a city council to privately deliberate on an officeholder's performance, discipline or\nremoval from office if it has been \" given the power to remove the occupant under law or\nordinance.\" (Emphasis added.) 5 ILCS 120/ 2(c)(3) (West 2020). The City has a managerial\nform of government. Under that form of government, the City Council is authorized to appoint a\ncity manager who \" may at any time be removed from office by a majority vote of the members\nof the council[.]\" 65 ILCS 5/5-3-7 (West 2020), as amended by Public Act 102- 15, effective\nJune 17, 2021. No provision of the Illinois Municipal Code governing the managerial form of\ngovernment permits the City Council to remove the city clerk, who is an elected officer, from\noffice.\nBy comparison, in the Commission form of government the city clerk is among\nnumerous officers who are appointed by a majority vote of the City Council. 5 Section 4-5-9 of\nthe Illinois Municipal Code 6 further provides: \" Except as otherwise provided in this article or by\nlaw, any officer or employee who has been elected or appointed by the council in accordance\n4 The reply also questions whether the City Manager or City Council violated Federal or State\nstatutes by failing to attempt to provide accommodations for disabilities, and alleges that the City Council made an\nunnecessary amendment to the City Code to appoint another individual as its recording secretary. This office does\nnot have authority to review those claims. See 15 ILCS 205/ 7 (West 2020) (limiting the Public Access Counselor's\nauthority to reviewing alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West\n\nwith the provisions of this article may be removed from office at any time by a vote of a majority\nof the council members.\" If the legislature intended to authorize city councils with a managerial\nform of government to remove a city clerk from office, it would have expressly provided that\nauthorization as it did for city councils in a commission form of government.\nThe City Council's response to this office equates a determination that there is a\nvacancy\" in an office as tantamount to removing the officeholder. Section 3.1-10-50(b) of the\nIllinois Municipal Code provides that \"[ i]f corporate authorities find that an officer is incapable\nof performing the duties of the office due to permanent physical or mental disability, that person\nis removed from the office and the vacancy of the office occurs on the date of the\ndetermination.\" Thus, a determination by the City Council that the City Clerk's office is vacant\ndue to the fact that the City Clerk is unable to perform his duties because of a mental or physical\ndisability has the effect of removing the City Clerk from office. However, this power to remove\ncan only be exercised if a guardian ad litem is appointed or licensed doctor makes a written\nfinding that the officer is impaired; there is no indication that either of those conditions were\nsatisfied at the time of the closed session discussion. Further, the City Council only briefly\ntouched on the issue of disability in closed session, and that discussion did not focus on the\npossibility of removing the City Clerk from office because of a disability. As discussed below,\nmost of the discussion concerned the City Clerk's performance with respect to recording minutes\nof City Council meetings. The narrowly construed section 2(c)(3) exception does not permit the\nCity Council to engage in wide- ranging discussions of an officer's performance or discipline or\nremoval from office simply because a provision of the Municipal Code authorizes the City\nCouncil to declare the City Clerk's office vacant under certain conditions, such as if it determines\na disability impaired the City Clerk from performing his public duties after either the\nappointment of a guardian ad litem or a finding of impairment due to disability by a licensed\ndoctor.\nThe City Council also asserts that section 2(c)(3) of OMA authorized the City\nCouncil to discuss in closed session whether the City Clerk's office was vacant by reason of\nabandonment. Section 3.1-10-50(c)(1) of the Illinois Municipal Code provides that \"[ a] vacancy\noccurs in an office by reason of abandonment of office; removal from office; or failure to\nqualify; or more than temporary removal of residence from the municipality; or in the case of an\nalderperson of a ward or councilman or trustee of a district, more than temporary removal of\nresidence from the ward or district, as the case may be.\" (Emphasis added.) \"[ R]emoval from\noffice\" is one basis for determining that a vacancy exists, but that reason is separate and distinct\nfrom \" abandonment of office\" in section 3.1-10-50(c)(1) of the Illinois Municipal Code. Thus,\nthe ability to determine that an office is vacant by reason of abandonment does not empower the\nCity Council to remove the City Clerk from office. To conclude otherwise would render\nsuperfluous the term \" removal from office[ ]\" in section 3.1-10-50(c)(1) of the Illinois Municipal\nCode. Moreover, section 2(c)(3) of OMA does not authorize public bodies to discuss occupants\n\nof public office in closed session if they are empowered to determine their offices are vacant.\nInstead, discussions only are permissible under that exception if \"the public body is given the\npower to remove the occupant under law or ordinance.\" 5 ILCS 120/ 2(c)(3) (West 2020).\nBased on this office's review of the verbatim recording of the October 25, 2021,\nclosed session, 7 most of the City Council's discussion concerned the performance of the City\nClerk with respect to recording minutes of City Council meetings. The City Council's response\nto this office asserted that the City Council properly discussed the City Clerk's performance as its\nrecording secretary and the appointment of its Executive Assistant to replace him as recording\nsecretary because the recording secretary position is a \" public office\" under the definition of that\nterm in section 2(d) of OMA: 8\nPublic Office\" means a position created by or under the\nConstitution or laws of this State, the occupant of which is charged\nwith the exercise of some portion of the sovereign power of this\nState. The term \" public office\" shall include members of the public\nbody, but it shall not include organizational positions filled by\nmembers thereof, whether established by law or by a public body\nitself, that exist to assist the body in the conduct of its business. 5\nILCS 120/ 2(d) (West 2020).\nIn Fazekas v. City of DeKalb, 2021 IL App (2d) 200692, ¶¶ 30-31 ___N.E.3d ___\n2021), the Illinois Appellate Court held that the City did not violate section 6(f) of article VII of\nthe Illinois Constitution 9 by passing an ordinance that created the office of executive assistant\nwith the same duties as the city clerk. The court held that section 3.1-30-5(a) of the Illinois\nMunicipal Code 10 authorized the mayor to \" create the office of executive assistant[ ]\" regardless\nof whether it was necessary to carry out the functions of government. (Emphasis added.)\nFazekas, 2021 IL App (2d) 200692, ¶¶ 30-31 ___N.E.3d___. ___\nThe City's Municipal Code provides, in pertinent part:\n7 The audio quality of the recording was impacted by what appeared to be background noise of an\nindividual continuously typing notes or draft minutes. This office suggests that the City Council put more distance\nbetween the keyboard and the recorder at future closed sessions or otherwise take measures to ensure that the\nverbatim recording is fully audible.\n\n85 ILCS 120/ 2 (West 2020), as amended by Public Acts 102- 520, effective August 20, 2021; 102558, effective August 20, 2021.\n\na) Duties. The part- time duties of the City Clerk shall\ninclude, but are not limited to: taking and preparing\nminutes of the City Council’ s proceedings; faithfully\nrecording the results of resolutions, ordinances and other\nactions approved by the City Council in said minutes;\noverseeing the review, approval and release of all\nExecutive Session minutes; * * *.\nb) Duties of the Executive Assistant. The full-time duties\nof the Executive Assistant shall include, but are not limited\nto: Acting as the Recording Secretary to the City Council\nby taking and preparing minutes of the City Council's\nmeetings; faithfully recording the results of resolutions,\nordinances and other actions approved by the City Council\nin said minutes and journal; overseeing the review,\napproval and release of all Executive Session minutes[.]\nDeKalb, Ill. Code § 314(b), (c) (2019).\nThe City Clerk and Executive Assistant are each a \" public office\" under section 2(d) of OMA.\nRecording City Council minutes and serving as the City Council's recording secretary, however,\nare not separate public offices within the offices of the City Clerk and the Executive Assistant.\nThose responsibilities are simply among the designated duties of the City Clerk and Executive\nAssistant under the City's Municipal Code. Because the City Council's recording secretary is not\nan occupant of a public office, section 2(c)(3) of OMA did not authorize the City Council to hold\nclosed session discussions of the performance or appointment of the recording secretary of the\nCity Council.\nLastly, the City Council asserted that section 5-2-19 of the Illinois Municipal\nCode authorizes the City Council to approve an ordinance making the City Clerk an appointed\nofficer subject to removal by the City Council, or abolishing the office of the City Clerk. In his\nreply,\ncontends that the section 6(f) of article VII of the Illinois Constitution of 1970\nrequires a referendum to approve changing the City Clerk's position from elected to appointed.\nIt is not necessary for this office to resolve those conflicting interpretations as the City Clerk was\nnot an appointed officer at the time of its October 25, 2021, meeting. Therefore, the City\nCouncil did not have the power to remove the City Clerk by law or ordinance when it discussed\n\nimproperly discussed the City Clerk and recording secretary position in closed session pursuant\nto the section 2(c)(3) exception. This office requests that the City Council remedy that violation\nby voting to publicly disclose those portions of the closed session minutes and verbatim\nrecording. The Public Access Counselor has determined that resolution of this matter does not\nrequire the issuance of a binding opinion. If you have questions, you may contact me at (312)\n814-6756 or mailto:steven.silverman\nsteven. silverman@ilag. gov. This file is closed.\n@ilag.gov\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n68219 o 2c3 proper mun\ncc:\n\nVia electronic mail\nMr. Matthew D. Rose\nDonahue & Rose, P.C.\n9501 West Devon Avenue, Suite 702\nRosemont, Illinois 60018\nmailto:mrose@drla\nmrose@drlawpc. com\nwpc.com"}
{"id":1357,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-02-14","case_number":null,"request_numbers":["68340"],"title":"Peotone School Board did not violate OMA in emergency meeting for grant","filename":"68340, issued February 14, 2022.pdf","rel_path":null,"word_count":1850,"summary":"The PAC reviewed allegations that the Peotone Community Unit School District No. 207U Board of Education failed to provide 48 hours' notice for a special meeting, ultimately determining that the emergency nature of the meeting justified the notice provided.","plain_summary":"Two individuals complained that a school board held a meeting without giving the public the required 48 hours' notice. The Attorney General's office found that because the meeting was held to address a genuine emergency regarding a $50,000 grant, the board did not break the law. The office closed the case but suggested that boards should clearly label such meetings as 'emergency' on their agendas in the future.","holding":"The Board of Education did not violate the Open Meetings Act's advance notice requirements when it held an emergency meeting to secure a grant application.","legal_question":"Whether the Peotone Community Unit School District No. 207U Board of Education violated the Open Meetings Act by failing to provide 48 hours' notice for a special meeting held on October 8, 2021.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Peotone Community Unit School District No. 207U Board of Education","requesting_party":"Multiple complainants","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The board held an emergency meeting to approve a grant application without providing the standard 48-hour advance notice.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/emergency-meetings/68340, issued February 14, 2022.pdf","sha256":"8f59cb869ebf9ff42455be2088a2be41684dcc228bee55090a57f14406c0252b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","emergency meeting","school board","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 14, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John E. Fester\nHimes Petrarca & Fester\n\nOBO Peotone Community Unit School District No. 207U\nBoard of Education\n\n[street address redacted for site publication -- see original PDF]\njfester@edlawyer.com\nRE: OMA Requests for Review – 2021 PAC C-0509; 68340\nDear\n\nand Mr. Fester:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\n\nAct ( OMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). This determination consolidates two Requests for\n\nReview concerning similar allegations. For the reasons that follow, the Public Access Bureau\nconcludes, under the specific circumstances in question, that the Peotone Community Unit\n\nSchool District No. 207U (District) Board of Education (Board) did not improperly hold an\nemergency meeting on October 8, 2021.\nOn October 14, 2021, the Public Access Bureau received a Request for Review\n\nfrom\n\nalleging that the Board failed to provide 48 hours' notice for its October\n\n8, 2021, special meeting. On November 1, 2021,\n\nsubmitted a Request for\n\nReview to the Public Access Bureau alleging, in relevant part, similar allegations concerning the\nBoard' s October 8, 2021, special meeting. This office sent copies of the Requests for Review to\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. John E. Fester\n\nFebruary 14, 2022\nPage 2\n\nthe Board and asked it to provide a written response to those allegations, together with copies of\n\nthe notice, agenda, minutes (both open and closed), and any recordings from the meeting in\nquestion. On December 7, 2021, the Board furnished copies of the requested documents,\n\ntogether with its written response. On December 13, 2021,\n\nsubmitted a reply\n\nreiterating his contention that the circumstances underlying the subject matter of the Board' s\n\nOctober 8, 2021, special meeting did not constitute a bona fide emergency.\n\ndid not\n\nsubmit a reply.\nDETERMINATION\nAs an initial matter,\n\nhas also alleged that Board members violated\n\nnumerous provisions of its Code of Conduct. However, the Public Access Counselor's authority\nto resolve disputes is limited to alleged violations of OMA and the Freedom of Information Act\n\nFOIA) (5 ILCS 140/1 et seq. (West 2020)). See 15 ILCS 205/7(c)(3) (West 2020).\nAccordingly, this office is not authorized to review alleged violations of the Board' s rules\n\ngoverning members' conduct.\nOMA provides that it is the \"public policy of this State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\n\nbody is discussed or acted upon in anyway.\" 5 ILCS 120/1 (West 2020). Section 2.02(a) of\nOMA ( 5 ILCS 120/ 2.02( a) ( West 2020)) provides that \"[ p] ublic notice of any special meeting\n\nexcept a meeting held in the event of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\n\nEmphasis added.)\nOMA does not define the phrase \" bona fide emergency,\" and no Illinois appellate\ncourt has addressed the issue of what constitutes a bona fide emergency for purposes of section\n\n2.02(a). An \"emergency\" is defined as \" an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 ( Emphasis added.) Based on this definition, the\n\nPublic Access Bureau has previously determined that \"unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\n\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body' s\n\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \" bona fide emergency\" under section 2.02( a), partly because the \" situation\n\nthat precipitated\" the meeting \"was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass' n v. South Texas Sports, 720 S.W.2d 551,\n\n557 (Tex. App. 1986) (\" The mere necessity for quick action does not constitute an emergency\n1WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY, 741 (1993).\n\n\fMr. John E. Fester\n\nFebruary 14, 2022\nPage 3\n\nwhere the situation calling for such action is one which reasonably should have been\n\nanticipated.\").\nIn its response to this office, the Board explained the agenda for the October 8,\n2021, meeting identified the meeting as a special meeting without indicating that it was an\n\nemergency meeting. The Board acknowledged that less than 48 hours of advance notice was\nprovided for the meeting, but asserted that the underlying circumstances constituted a bona fide\n\nemergency because the Board faced an imminent deadline for approving an application to the\nIllinois State Board of Education ( ISBE) for a $ 50,000 matching grant for a tile floor abatement\n\nproject:\nThe Board of Education was first alerted to the need for\nBoard approval of the ISBE grant application less than 48 hours\n\nbefore the application needed to be submitted. The Board had no\nreason to know that its approval was required prior to being\n\nnotified late on October 6, as the Board of Education is not directly\ninvolved in preparing and filing grant applications. While it can be\n\nargued that CSBO Moore should have become more familiar with\nthe grant application requirements, his actions or inactions cannot\n\nbe imputed to the Board. The relevant question is, did the Board\nknow or should the Board have known of the requirement for\n\nBoard action in time to provide the standard 48 hours' advance\nnotice of a meeting? The answer to each question is no.\nAn \" emergency\" is defined as: \" an unforeseen combination\n\nof circumstances or the resulting state that calls for immediate\naction\" ( Merriam- Webster. com, accessed 12/ 07/ 21). This situation\n\nmeets this definition. The Board was unaware of a looming\ndeadline to take action to approve the grant application. Had the\n\nBoard been made aware in advance of the need to take formal\naction on the application, it could have done so at its September\n\n20th regular meeting or called a special meeting with 48 hours'\nnotice. However, the circumstances in this situation required\n\nimmediate action in order to secure $50,000 from ISBE that would\notherwise have to be paid by District 207 taxpayers and giving 48\n\nhours’ notice would have mooted the need for any meeting as the\napplication window would have closed hours before the Board\n\ncould meet.\n\n\fMr. John E. Fester\n\nFebruary 14, 2022\nPage 4\n\nThis was not an emergency of the Board' s making. The\n\nBoard was first alerted to the grant application problem at a\njuncture when giving 48 hours' notice of a meeting was not\n\npossible if the grant application was to be submitted on time. The\nBoard gave as much notice of the meeting as practicable and took\n\nextra steps to ensure the meeting was publicized as widely as\npossible and added a livestream of the meeting for people who\n\nmay not have been able to adjust their schedules to attend inperson. The local media was alerted to the meeting, which lasted\n\nall of five minutes and was limited to taking action to approve the\ngrant application.[ 2]\nAs an initial matter, it has not been disputed that the Board, upon learning of the\n\nimpending grant application deadline requiring Board approval, not only took the appropriate\nsteps to comply with the emergency notice provisions of section 2.02( a) of OMA3 but also took\n\nextra measures to notify the public of the upcoming meeting and provide access. For example,\nthe Board posted copies of the notice and agenda at its physical meeting space, on the District\n\nwebsite, and on the District's various social media pages. Additionally, the Board promptly\nnotified local news media and also provided a live stream of the meeting in question.\n\nAccordingly, the only issue under review is whether the Board held the October 8, 2021, special\nmeeting as a result of a bona fide emergency.\nIt is apparent that approval of the grant application in question required\n\nimmediate action\" because less than 48 hours remained between (1) the application's deadline\nfor submission and ( 2) the District business officer first alerting the Board of the circumstances\n\nat hand on October 6, 2021. Considering this narrow timeline, the Board did not unreasonably\nassert that it needed to convene an emergency meeting. Nothing in the record suggests that the\n\nneed for the Board to take action prior to the impending deadline for the grant application was\nclearly foreseeable\" to the Board. This office has received no evidence that the Board convened\n\nthe meeting on an emergency basis in an attempt to circumvent the transparency requirements of\nOMA. Nor has it been alleged that the District business officer was actually aware of the need\n\nfor Board action to approve the grant application and intentionally failed to notify the Board\nearlier, or that Board review of grant applications is so common that the District' s business\n2Letter from John E. Fester to Suzanne Dennis Borland, Assistant Attorney General, Public Access\nBureau, and Christopher Boggs, Assistant Attorney General, Public Access Bureau (December 7, 2021).\n3Section 2.02(a) of OMA provides, in pertinent part: \" Notice of an emergency meeting shall be\ngiven as soon as practicable, but in any event prior to the holding of such meeting, to any news medium which has\nfiled an annual request for notice under subsection ( b) of this Section.\n\n\fMr. John E. Fester\n\nFebruary 14, 2022\nPage 5\n\nofficer should have anticipated needing the Board' s involvement.\n\nUnder these specific\n\ncircumstances, where the Board's options were to hold an emergency meeting to approve the\ngrant application or forego pursuing the $ 50,000 matching grant from ISBE, this office is unable\n\nto conclude that the Board violated the advance notice requirements of OMA in connection with\nits October 8, 2021, special meeting. However, when exigent circumstances justify an\n\nemergency meeting, this office recommends that the public body holding the meeting indicate on\nthe meeting agenda that the meeting is a special meeting held in the event of a bona fide\n\nemergency. At the time they submitted their Requests for Review, it appears that\nand\n\nmay not have been aware that the Board held the October 6, 2021, meeting on an\n\nemergency basis.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. If you have any question, please contact me at\n\nChristopher.Boggs@ilag.gov. This letter serves to close these matters.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nSupervising Attorney\n\nPublic Access Bureau\nC-0509 68340 o 202 notice proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's emergency meeting for a grant application","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68340/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 14, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John E. Fester\nHimes Petrarca & Fester\n\nOBO Peotone Community Unit School District No. 207U\nBoard of Education\n\n[street address redacted for site publication -- see original PDF]\njfester@edlawyer.com\nRE: OMA Requests for Review – 2021 PAC C-0509; 68340\nDear\n\nand Mr. Fester:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/ 3.5(e) (West 2020)). This determination consolidates two Requests for\n\nReview concerning similar allegations. For the reasons that follow, the Public Access Bureau\nconcludes, under the specific circumstances in question, that the Peotone Community Unit\n\nSchool District No. 207U (District) Board of Education (Board) did not improperly hold an\nemergency meeting on October 8, 2021.\nOn October 14, 2021, the Public Access Bureau received a Request for Review\n\nfrom\n\nalleging that the Board failed to provide 48 hours' notice for its October\n\n8, 2021, special meeting. On November 1, 2021,\n\nsubmitted a Request for\n\nReview to the Public Access Bureau alleging, in relevant part, similar allegations concerning the\nBoard's October 8, 2021, special meeting. This office sent copies of the Requests for Review to\n\nthe Board and asked it to provide a written response to those allegations, together with copies of\n\nthe notice, agenda, minutes (both open and closed), and any recordings from the meeting in\nquestion. On December 7, 2021, the Board furnished copies of the requested documents,\n\ntogether with its written response. On December 13, 2021,\n\nsubmitted a reply\n\nreiterating his contention that the circumstances underlying the subject matter of the Board's\n\nOctober 8, 2021, special meeting did not constitute a bona fide emergency.\n\ndid not\n\nsubmit a reply.\nDETERMINATION\nAs an initial matter,\n\nhas also alleged that Board members violated\n\nnumerous provisions of its Code of Conduct. However, the Public Access Counselor's authority\nto resolve disputes is limited to alleged violations of OMA and the Freedom of Information Act\n\nFOIA) (5 ILCS 140/1 et seq. (West 2020)). See 15 ILCS 205/7(c)(3) (West 2020).\nAccordingly, this office is not authorized to review alleged violations of the Board's rules\n\ngoverning members' conduct.\nOMA provides that it is the \"public policy of this State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\n\nbody is discussed or acted upon in anyway.\" 5 ILCS 120/1 (West 2020). Section 2.02(a) of\nOMA (5 ILCS 120/ 2.02(a) (West 2020)) provides that \"[ p] ublic notice of any special meeting\n\nexcept a meeting held in the event of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\n\nEmphasis added.)\nOMA does not define the phrase \" bona fide emergency,\" and no Illinois appellate\ncourt has addressed the issue of what constitutes a bona fide emergency for purposes of section\n\n2.02(a). An \"emergency\" is defined as \" an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 (Emphasis added.) Based on this definition, the\n\nPublic Access Bureau has previously determined that \"unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\n\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body's\n\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \" bona fide emergency\" under section 2.02(a), partly because the \" situation\n\nthat precipitated\" the meeting \"was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass' n v. South Texas Sports, 720 S.W.2d 551,\n\n557 (Tex. App. 1986) (\" The mere necessity for quick action does not constitute an emergency\n\nwhere the situation calling for such action is one which reasonably should have been\n\nanticipated.\").\nIn its response to this office, the Board explained the agenda for the October 8,\n2021, meeting identified the meeting as a special meeting without indicating that it was an\n\nemergency meeting. The Board acknowledged that less than 48 hours of advance notice was\nprovided for the meeting, but asserted that the underlying circumstances constituted a bona fide\n\nemergency because the Board faced an imminent deadline for approving an application to the\nIllinois State Board of Education (ISBE) for a $ 50,000 matching grant for a tile floor abatement\n\nproject:\nThe Board of Education was first alerted to the need for\nBoard approval of the ISBE grant application less than 48 hours\n\nbefore the application needed to be submitted. The Board had no\nreason to know that its approval was required prior to being\n\nnotified late on October 6, as the Board of Education is not directly\ninvolved in preparing and filing grant applications. While it can be\n\nargued that CSBO Moore should have become more familiar with\nthe grant application requirements, his actions or inactions cannot\n\nbe imputed to the Board. The relevant question is, did the Board\nknow or should the Board have known of the requirement for\n\nBoard action in time to provide the standard 48 hours' advance\nnotice of a meeting? The answer to each question is no.\nAn \" emergency\" is defined as: \" an unforeseen combination\n\nof circumstances or the resulting state that calls for immediate\naction\" (Merriam- Webster. com, accessed 12/ 07/ 21). This situation\n\nmeets this definition. The Board was unaware of a looming\ndeadline to take action to approve the grant application. Had the\n\nBoard been made aware in advance of the need to take formal\naction on the application, it could have done so at its September\n\n20th regular meeting or called a special meeting with 48 hours'\nnotice. However, the circumstances in this situation required\n\nThis was not an emergency of the Board's making. The\n\nBoard was first alerted to the grant application problem at a\njuncture when giving 48 hours' notice of a meeting was not\n\npossible if the grant application was to be submitted on time. The\nBoard gave as much notice of the meeting as practicable and took\n\nextra steps to ensure the meeting was publicized as widely as\npossible and added a livestream of the meeting for people who\n\nmay not have been able to adjust their schedules to attend inperson. The local media was alerted to the meeting, which lasted\n\nall of five minutes and was limited to taking action to approve the\ngrant application.[ 2]\nAs an initial matter, it has not been disputed that the Board, upon learning of the\n\nimpending grant application deadline requiring Board approval, not only took the appropriate\nsteps to comply with the emergency notice provisions of section 2.02(a) of OMA3 but also took\n\nextra measures to notify the public of the upcoming meeting and provide access. For example,\nthe Board posted copies of the notice and agenda at its physical meeting space, on the District\n\nwebsite, and on the District's various social media pages. Additionally, the Board promptly\nnotified local news media and also provided a live stream of the meeting in question.\n\nAccordingly, the only issue under review is whether the Board held the October 8, 2021, special\nmeeting as a result of a bona fide emergency.\nIt is apparent that approval of the grant application in question required\n\nimmediate action\" because less than 48 hours remained between (1) the application's deadline\nfor submission and (2) the District business officer first alerting the Board of the circumstances\n\nat hand on October 6, 2021. Considering this narrow timeline, the Board did not unreasonably\nassert that it needed to convene an emergency meeting. Nothing in the record suggests that the\n\nneed for the Board to take action prior to the impending deadline for the grant application was\nclearly foreseeable\" to the Board. This office has received no evidence that the Board convened\n\nthe meeting on an emergency basis in an attempt to circumvent the transparency requirements of\nOMA. Nor has it been alleged that the District business officer was actually aware of the need\n\nfor Board action to approve the grant application and intentionally failed to notify the Board\nearlier, or that Board review of grant applications is so common that the District's business\n2 Letter from John E. Fester to Suzanne Dennis Borland, Assistant Attorney General, Public Access\nBureau, and Christopher Boggs, Assistant Attorney General, Public Access Bureau (December 7, 2021).\n3 Section 2.02(a) of OMA provides, in pertinent part: \" Notice of an emergency meeting shall be\ngiven as soon as practicable, but in any event prior to the holding of such meeting, to any news medium which has\n\nofficer should have anticipated needing the Board's involvement.\n\nUnder these specific\n\ncircumstances, where the Board's options were to hold an emergency meeting to approve the\ngrant application or forego pursuing the $ 50,000 matching grant from ISBE, this office is unable\n\nto conclude that the Board violated the advance notice requirements of OMA in connection with\nits October 8, 2021, special meeting. However, when exigent circumstances justify an\n\nemergency meeting, this office recommends that the public body holding the meeting indicate on\nthe meeting agenda that the meeting is a special meeting held in the event of a bona fide\n\nemergency. At the time they submitted their Requests for Review, it appears that\nand\n\nmay not have been aware that the Board held the October 6, 2021, meeting on an\n\nemergency basis.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. If you have any question, please contact me at\n\nChristopher.Boggs@ilag.gov. This letter serves to close these matters.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nSupervising Attorney\n\nPublic Access Bureau\nC-0509 68340 o 202 notice proper sd"}
{"id":1358,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-12-15","case_number":null,"request_numbers":["68344"],"title":"Cook County Board of Review commissioners' private amendment talks were subject to OMA","filename":"68344, issued December 15, 2022.pdf","rel_path":null,"word_count":2640,"summary":"The PAC investigated allegations that two Cook County Board of Review commissioners violated the Open Meetings Act by discussing proposed legislative amendments outside of a public meeting. The PAC concluded that these discussions constituted a violation of the Act.","plain_summary":"A complainant alleged that two Cook County Board of Review commissioners held private discussions about a proposed amendment to the Property Tax Code, arguing these should have been discussed in a public meeting. The Illinois Attorney General's Public Access Bureau issued a determination under the Open Meetings Act, concluding that the discussions pertained to public business and were subject to OMA's requirements. The document contains legal analysis but does not explicitly state a finding of a violation or issue a specific order.","holding":"The Attorney General determined that the discussions about the proposed amendment concerned public business and were subject to the Open Meetings Act, but the document does not state a specific finding of a violation or issue an order.","legal_question":"Whether discussions between two members of a public body regarding proposed legislative amendments constitute a 'meeting' under the Open Meetings Act that must be held in public.","disposition":"violation_found","primary_statute":["5 ILCS 120/1.02","5 ILCS 120/2(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Cook County Board of Review","requesting_party":"First Assistant to Commissioner Tammy Wendt","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The matter concerned whether discussions between commissioners regarding proposed legislative amendments to the Property Tax Code violated the Open Meetings Act.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/meaning-of-public-business/68344, issued December 15, 2022.pdf","sha256":"deb032545689efe832029c2660eaaab7483de796aa87548fb067c168612c75ca","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Open Meetings Act","public business","quorum","legislative amendments"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 15, 2022\nVia electronic mail\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink:\nA Professional Corporation\n[street address redacted for site publication -- see original PDF]\nkkrafthefer@ancelglink.com\nRE: OMA Request for Review-2021-PAC-C-0090/2021 PAC 68344\nand Ms. Krafthefer:\n\nDear\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2020)).\nOn April 22, 2021,\n, who at the time served as First Assistant\nto Cook County Board of Review (Board) Commissioner Tammy Wendt, submitted a Request\nfor Review alleging that Commissioner Larry Rogers, Jr., and Commissioner Michael Cabonargi\nviolated OMA by holding policy discussions outside of Board meetings held in compliance with\nthe Act.\nattached a copy of a memorandum on Board letterhead that expressed\nsupport for a proposed amendment to the Property Tax Code 1 which would require\ncommissioners to be licensed attorneys. He also attached an e-mail from the Civil Actions\nBureau of the Cook County State's Attorney's Office which opined that discussions of internal\n\"policy should be treated as subject to OMA. \" 2\n\n1\n\n35 ILCS 200/1-1 et seq. (West 2020).\n\nE-mail from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's Attorney's\nOffice, to Tammy Wendt, Commissioner, Cook County Board of Review (April 1, 2021).\n2\n\n500 South Second Street, Springfield, Illinois 62701 •(217) 782-1090 •TTY: (877) 844-5461 •Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 6060 I • (312) 814-3000 •TTY: (800) 964-3013 •Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 •(618) 529-6400 •TTY: (877) 675-9339 •Fax: (618) 529-6416\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15, 2022\nPage 2\n\nOn May 7, 2021, the Public Access Bureau sent a copy of the Request for Review\nto Commissioner Rogers and Commissioner Cabonargi (Board Majority) and asked for a\nresponse to the allegation that they engaged in communications about the proposed amendment\nthat constitute a \"meeting\" without complying with OMA. This office requested an explanation\nof how the memorandum was developed and asked for copies of any related electronic\ncommunications. On July 24, 2021, counsel for the Board Majority responded that the\nmemorandum did not pertain to any official business or policy of the Board and therefore any\ncommunications concerning the memorandum did not constitute meetings held in violation of\nOMA; no electronic communications were provided. On August 9, 2021,\nsubmitted a reply. The Board Majority supplemented its response on November 16, 2021, and\nreplied on November 29, 2021.\nOn January 5, 2022, this office asked counsel for the Board Majority to clarify\nwhether its argument that any discussions about the memorandum were not subject to OMA was\nan acknowledgment that such discussions occurred; if not, this office again requested an\nexplanation and documentation about how the memorandum was developed. On April 6, 2022,\ncounsel for the Board Majority submitted an additional response contending that \"these\nallegations, even if true, do not constitute a violation of the OMA, because the actions alleged\nwere taken by the Commissioners in their individual, rather than official capacities.\" 3 An\nAssistant Attorney General in the Public Access Bureau replied that this office would \"proceed\nwith the understanding that it is undisputed such discussion occurred but the two Board members\nare reiterating/[supplementing] the assertion that it didn't violate OMA because it didn't pertain\nto public business. Let me know if I'm missing something\" 4 We did not receive a response.\nDETERMINATION\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA (5 ILCS 120/1.02 (West 2020)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\n3\nLetter from Keri-Lyn Krafthefer, Ancel Glink, to Steven Silverman, Bureau Chief, Public Access\nBureau, Office of the Illinois Attorney General (April 6, 2022), at 1.\n4\n\nE-mail from [Steve] Silverman to Yevgeniy Bolotnikov and Keri-Lyn Krafthefer (April 7, 2022).\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15, 2022\nPage 3\n\npart by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\n\"Public body\" includes tourism boards and convention or civic\ncenter boards located in counties that are contiguous to the\nMississippi River with populations of more than 250,000 but less\nthan 300,000. \"Public body\" includes the Health Facilities and\nServices Review Board. \"Public body\" does not include a child\ndeath review team or the Illinois Child Death Review Teams\nExecutive Council established under the Child Death Review\nTeam Act, an ethics commission acting under the State Officials\nand Employees Ethics Act, a regional youth advisory board or the\nStatewide Youth Advisory Board established under the\nDepartment of Children and Family Services Statewide Youth\nAdvisory Board Act, or the Illinois Independent Tax Tribunal.\nIn its initial response to this office, the Board Majority argued that the public\nbusiness of the Board concerns receiving evidence, conducting hearings, and internal policy\nchanges. The response asserted that the memorandum discussing a proposed legislative change\npertains to the public business of the General Assembly rather than the Board, and that\nCommissioners Rogers and Cabonargi have a constitutional right to discuss and advocate for\nlegislation in their individual capacities. The Board Majority's supplemental response\nemphasized that the Board is a quasi-adjudicative body with limited statutory duties that do not\ninclude \"authority to lobby or support or oppose legislation. Because the Board of Review does\nnot have the legal ability to do such, it would be very odd to find that the Board of Review has to\nhold an open meeting to accomplish something it has no legal ability to do.\" 5 While the response\nacknowledged that using the Board's letterhead on the memorandum may have created an\ninference that the Board Majority had taken action on the legislation, it maintained the Board\nMajority couldn't have violated OMA in connection with that subject because it lacked statutory\nauthority to hold meetings on legislation or to endorse legislation.\nIn reply to that response,\nstated: \"Individually, Commissioners\nRogers and Carbonargi have every right to advocate for any legislation but when they do it\ncollectively, under their titles and submit memorandums on Cook County Board of Review\nletterhead it has every appearance of official business. \" 6 He also disputed legislative\namendments are not public business of the Board, adding that \"[t]he Board of Review has and\nwill continue to lobby for change when and where it sees fit. In fact, the Board of Review is\n5\nLetter from Keri-Lyn Krafthefer, Ancel Glink, to Steven Silverman, Bureau Chief, Public Access\nBureau, Office of the Illinois Attorney General (November 16, 2021), at 4.\n\nE-mail from\n\n6\n\nto [Steve] Silverman (November 29, 2021).\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15,2022\nPage 4\n\ncurrently working with legislators to change details of the Illinois Property Tax Code relating to\nthe Property Tax Appeal Board.\" 7\n\"Public business\" for purposes of OMA is not limited to items on which the Board\nnecessarily intends to vote. The Act defines \"meeting\" as \"any gathering of a majority of a\nquorum of the members of a public body held for the purpose of discussing public business.\"\n(Emphasis added.) 5 ILCS 120/1.02 (West 2020). OMA does not define \"public business.\" In\nCity of Champaign v. Madigan, 2013 IL App (4th) 120662,i-J31,992 N.E.2d 629,637 (2013),the\nIllinois Appellate Court examined the meaning of the term \"public business\" in the context of a\nFreedom oflnformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) request involving\ncommunications sent and received by members of a public body during an open meeting. The\ncourt found that the term \"public business\" has a plain and ordinary meaning: \"to qualify as a\npublic record a communication must first pertain to 'business or community interests as opposed\nto private affairs.\"' City of Champaign, 2013 IL App (4th) 120662,i-J31,992 N.E.2d at 637\n(quoting Merriam-Webster's Collegiate Dictionary 941 (10th ed. 2000)). The meaning in FOIA\nis relevant to the meaning in OMA because \"[b]oth statutes ensure the public's access to\ninformation concerning the conduct of public bodies,except in limited circumstances, and must\nbe construed together.\" Copley Press, Inc. v. Board of Education for Peoria School District No.\n150, 359 Ill. App. 3d 321,325,834 N.E.2d 558, 562 (3d Dist. 2005).\nA proposed amendment that would require commissioners to be licensed as\nattorneys to serve on the Board does not concern private affairs. The Board Majority's\nmemorandum states that the \"amendment acknowledges that as the courts have held a person\nmust be a licensed attorney to represent a party before the Cook County Board of Review because practice before the Board is the practice of law - then the Commissioners * * *\nthemselves should be attorneys.\" 8 The memorandum further asserts that the amendment \"would\nimprove the ethical safeguards of the Cook County Board of Review[ ]\" and that \"[t]he public\nagrees and the voters want this amendment. As a result of the November 2020 election,for the\nfirst time in its history the voters have elected attorneys for all three Commissioners[.]\" 9 The\nqualifications for eligibility to serve on the Board and the justifications for the proposed change\noutlined in the memorandum unequivocally pertain to community interests and the Board's\ninterests in conducting public business. This office's reasoning in 2021 PAC S-0135,which\n\n7E-mail from\n\nto [Steve] Silverman (November 29, 2021).\n\n8Memorandum by Hon. Larry Rogers, Jr., Commissioner, Cook County Board of Review and\nHon. Michael Cabonargi, Commissioner, Cook County Board of Review (undated), at 2.\n\nMemorandum by Hon. Larry Rogers, Jr., Commissioner, Cook County Board of Review and\nHon. Michael Cabonargi, Commissioner, Cook County Board of Review (undated), at 2.\n9\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15, 2022\nPage 5\n\nconcluded that the Board's discussions of policy changes were subject to the requirements of\nOMA, is equally applicable to this matter:\nTo construe OMA as permitting a public body to hold a\nprivate discussion of any matter pertaining to the public body's\ninterests or community interests as long as the discussion does not\ninvolve deliberations that culminate in a formal vote authorized by\na statute narrowly defines \"public business\" as limited to matters\nupon which a public body is expressly empowered to take \"final\naction.\" That interpretation is unsupported by case law, and\nadopting it would undermine the intent of the General Assembly\narticulated in section 1 of OMA: 10 \"The General Assembly * * *\ndeclares it to be the public policy of this State that its citizens shall\nbe given advance notice of and the right to attend all meetings at\nwhich any business of a public body is discussed or acted upon\nin any way.\" (Emphasis added to section 1 of OMA in original.).\nIll. Att'y Gen. PAC Req. Rev. Ltr. S-0135, issued January 19,\n2022, at 6-7.\nWith respect to the Board Majority's argument that the Board only is subject to\nOMA when it convenes as a quasi-adjudicative body to conduct particular property valuation\nfunctions prescribed under the Property Tax Code, we reiterate the conclusion in 2021 PAC S0135 that the requirements of OMA are not so limited and apply to the Board whenever at least\ntwo of its three members gather for the purpose of discussing public business:\nOMA defines \"'[q]uasi-adjudicative body\"' as \"an\nadministrative body charged by law or ordinance with the\nresponsibility to conduct hearings, receive evidence or testimony\nand make determinations based thereon, but does not include local\nelectoral boards when such bodies are considering petition\nchallenges.\" [Citation.] OMA permits quasi-adjudicative bodies\nto discuss evidence or testimony in closed session provided they\nmake publicly available written decisions setting forth the\ndeterminative reasoning. [Citation.] OMA does not contain any\nother provisions that address quasi-adjudicative bodies or limit the\nrequirements of OMA for quasi-adjudicative bodies compared to\n\n10\n\n5 ILCS 120/1 (West 2020).\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15,2022\nPage 6\n\nother public bodies subject to the Act. Ill. Att'y Gen. PAC Reg.\nRev. Ltr. S-0135,at 7-8.\nLastly,the Board Majority argued that \"the two Commissioners,as individuals,\nwere engaging in their protected First Amendment right to endorse legislation. This action was\nnot an action of the Cook County Board of Review. Had the Board held a meeting to discuss\nlegislation, it would have been inappropriate.\"11 The Board asserted that the two commissioners\nwere acting as individuals rather than in an official capacity. The memorandum that endorses the\nproposed amendment appears on a letterhead that identifies all three Board commissioners; it\nindicates that it is from \"Hon. Larry Rogers Jr.,Commissioner,Cook County Board of Review\"\nand \"Hon. Michael Cabonargi,Commissioner Cook County Board of Review\" and states,in\npertinent part: \"For the following reasons,we support the below amendment and respectfully\nrequest the Illinois Property Tax Code be amended to further professionalize the Cook County\nBoard of Review by adding the requirement that a Commissioner be a licensed attorney.\" 12\n(Emphasis in original.)\nAlthough the memorandum does not present itself as a recommendation by the\nfull Board,it plainly was submitted by the two Commissioners in their capacities as members of\nthe Board-not as private individuals. To be sure,OMA would not be implicated if an\nindividual Board member independently composed and submitted a recommendation about\nproposed legislation. But the memorandum at issue was submitted by two of the three members\nof the Board and it is undisputed that they discussed it. For the reasons explained above,such\ndiscussions constituted meetings subject to the requirements of OMA because they involved a\nquorum of the members of the Board and directly pertain to the public business of the Board and\ncommunity interests. OMA cannot be reasonably construed to permit members of public bodies\nto circumvent the requirements of the Act by characterizing their discussions of public business\nas discussions by individuals rather than discussions by public officials. People ex rel. Difanis v.\nBarr, 83 Ill. 2d 191,200 (1980) (General Assembly \"intended to include unofficial or informal\nmeetings within the coverage of the Act.\"); see also Acker v. Texas Water Commission, 790\nS.W.2d 299,300 (Tex. 1990) (\"When a majority of a public decisionmaking body is considering\na pending issue, there can be no 'informal' discussion. There is either formal consideration of a\nmatter in compliance with the Open Meetings Act or an illegal meeting.\"). Violations of OMA\nare not protected by the Constitution. See St. Cloud Newspaper, Inc., v. District 742 Community\nSchools, 332 N.W.2d 1,7 (Minn. 1983) (\"The Open Meeting Law does not violate the rights of\n11\nLetter from Keri-Lyn Krafthefer, Ancel Glink, to Steven Silverman, Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (April 6, 2022), at 1.\n\nMemorandum by Hon. Larry Rogers, Jr., Commissioner, Cook County Board of Review and\nHon. Michael Cabonargi, Commissioner, Cook County Board of Review (undated), at 1.\n12\n\n\fMs. Keri-Lyn J. Krafthefer\nDecember 15, 2022\nPage 7\n\nfree speech or free assembly under the First Amendment of the United States Constitution. These\nrights protect expression of ideas, not the right to conduct public business in closed meetings.\").\nFor the reasons stated above, this office concludes that two Commissioners'\ndiscussions related to the memorandum violated OMA and requests that members of the Board\nrefrain from discussing proposed legislative amendments and any other matters of public\nbusiness outside of a properly-noticed open meeting. The Public Access Counselor has\ndetermined that resolution of this matter does not require the issuance of a binding opinion. This\nletter shall serve to close this matter. If you have any questions, please contact me at (312) 8146756 or steven.silverman@ilag.gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n2021-PAC-S-0090 63844 o 2a meeting improper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Commissioners' discussions on property tax code amendments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68344/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 15, 2022\nVia electronic mail\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink:\nA Professional Corporation\n[street address redacted for site publication -- see original PDF]\nkkrafthefer@ancelglink.com\nRE: OMA Request for Review-2021-PAC-C-0090/2021 PAC 68344\nand Ms. Krafthefer:\n\nDear\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2020)).\nOn April 22, 2021,\n, who at the time served as First Assistant\nto Cook County Board of Review (Board) Commissioner Tammy Wendt, submitted a Request\nfor Review alleging that Commissioner Larry Rogers, Jr., and Commissioner Michael Cabonargi\nviolated OMA by holding policy discussions outside of Board meetings held in compliance with\nthe Act.\nattached a copy of a memorandum on Board letterhead that expressed\nsupport for a proposed amendment to the Property Tax Code 1 which would require\ncommissioners to be licensed attorneys. He also attached an e-mail from the Civil Actions\nBureau of the Cook County State's Attorney's Office which opined that discussions of internal\n\"policy should be treated as subject to OMA. \" 2\n\n1\n\n35 ILCS 200/1-1 et seq. (West 2020).\n\nE-mail from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's Attorney's\nOffice, to Tammy Wendt, Commissioner, Cook County Board of Review (April 1, 2021).\n2\n\nOn May 7, 2021, the Public Access Bureau sent a copy of the Request for Review\nto Commissioner Rogers and Commissioner Cabonargi (Board Majority) and asked for a\nresponse to the allegation that they engaged in communications about the proposed amendment\nthat constitute a \"meeting\" without complying with OMA. This office requested an explanation\nof how the memorandum was developed and asked for copies of any related electronic\ncommunications. On July 24, 2021, counsel for the Board Majority responded that the\nmemorandum did not pertain to any official business or policy of the Board and therefore any\ncommunications concerning the memorandum did not constitute meetings held in violation of\nOMA; no electronic communications were provided. On August 9, 2021,\nsubmitted a reply. The Board Majority supplemented its response on November 16, 2021, and\nreplied on November 29, 2021.\nOn January 5, 2022, this office asked counsel for the Board Majority to clarify\nwhether its argument that any discussions about the memorandum were not subject to OMA was\nan acknowledgment that such discussions occurred; if not, this office again requested an\nexplanation and documentation about how the memorandum was developed. On April 6, 2022,\ncounsel for the Board Majority submitted an additional response contending that \"these\nallegations, even if true, do not constitute a violation of the OMA, because the actions alleged\nwere taken by the Commissioners in their individual, rather than official capacities.\" 3 An\nAssistant Attorney General in the Public Access Bureau replied that this office would \"proceed\nwith the understanding that it is undisputed such discussion occurred but the two Board members\nare reiterating/[supplementing] the assertion that it didn't violate OMA because it didn't pertain\nto public business. Let me know if I'm missing something\" 4 We did not receive a response.\nDETERMINATION\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA (5 ILCS 120/1.02 (West 2020)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\n3\nLetter from Keri-Lyn Krafthefer, Ancel Glink, to Steven Silverman, Bureau Chief, Public Access\nBureau, Office of the Illinois Attorney General (April 6, 2022), at 1.\n4\n\nE-mail from [Steve] Silverman to Yevgeniy Bolotnikov and Keri-Lyn Krafthefer (April 7, 2022).\n\npart by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\n\"Public body\" includes tourism boards and convention or civic\ncenter boards located in counties that are contiguous to the\nMississippi River with populations of more than 250,000 but less\nthan 300,000. \"Public body\" includes the Health Facilities and\nServices Review Board. \"Public body\" does not include a child\ndeath review team or the Illinois Child Death Review Teams\nExecutive Council established under the Child Death Review\nTeam Act, an ethics commission acting under the State Officials\nand Employees Ethics Act, a regional youth advisory board or the\nStatewide Youth Advisory Board established under the\nDepartment of Children and Family Services Statewide Youth\nAdvisory Board Act, or the Illinois Independent Tax Tribunal.\nIn its initial response to this office, the Board Majority argued that the public\nbusiness of the Board concerns receiving evidence, conducting hearings, and internal policy\nchanges. The response asserted that the memorandum discussing a proposed legislative change\npertains to the public business of the General Assembly rather than the Board, and that\nCommissioners Rogers and Cabonargi have a constitutional right to discuss and advocate for\nlegislation in their individual capacities. The Board Majority's supplemental response\nemphasized that the Board is a quasi-adjudicative body with limited statutory duties that do not\ninclude \"authority to lobby or support or oppose legislation. Because the Board of Review does\nnot have the legal ability to do such, it would be very odd to find that the Board of Review has to\nhold an open meeting to accomplish something it has no legal ability to do.\" 5 While the response\nacknowledged that using the Board's letterhead on the memorandum may have created an\ninference that the Board Majority had taken action on the legislation, it maintained the Board\nMajority couldn't have violated OMA in connection with that subject because it lacked statutory\nauthority to hold meetings on legislation or to endorse legislation.\nIn reply to that response,\nstated: \"Individually, Commissioners\nRogers and Carbonargi have every right to advocate for any legislation but when they do it\ncollectively, under their titles and submit memorandums on Cook County Board of Review\nletterhead it has every appearance of official business. \" 6 He also disputed legislative\namendments are not public business of the Board, adding that \"[t]he Board of Review has and\nwill continue to lobby for change when and where it sees fit. In fact, the Board of Review is\n5\nLetter from Keri-Lyn Krafthefer, Ancel Glink, to Steven Silverman, Bureau Chief, Public Access\n\ncurrently working with legislators to change details of the Illinois Property Tax Code relating to\nthe Property Tax Appeal Board.\" 7\n\"Public business\" for purposes of OMA is not limited to items on which the Board\nnecessarily intends to vote. The Act defines \"meeting\" as \"any gathering of a majority of a\nquorum of the members of a public body held for the purpose of discussing public business.\"\n(Emphasis added.) 5 ILCS 120/1.02 (West 2020). OMA does not define \"public business.\" In\nCity of Champaign v. Madigan, 2013 IL App (4th) 120662,i-J31,992 N.E.2d 629,637 (2013),the\nIllinois Appellate Court examined the meaning of the term \"public business\" in the context of a\nFreedom oflnformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) request involving\ncommunications sent and received by members of a public body during an open meeting. The\ncourt found that the term \"public business\" has a plain and ordinary meaning: \"to qualify as a\npublic record a communication must first pertain to 'business or community interests as opposed\nto private affairs.\"' City of Champaign, 2013 IL App (4th) 120662,i-J31,992 N.E.2d at 637\n(quoting Merriam-Webster's Collegiate Dictionary 941 (10th ed. 2000)). The meaning in FOIA\nis relevant to the meaning in OMA because \"[b]oth statutes ensure the public's access to\ninformation concerning the conduct of public bodies,except in limited circumstances, and must\nbe construed together.\" Copley Press, Inc. v. Board of Education for Peoria School District No.\n150, 359 Ill. App. 3d 321,325,834 N.E.2d 558, 562 (3d Dist. 2005).\nA proposed amendment that would require commissioners to be licensed as\nattorneys to serve on the Board does not concern private affairs. The Board Majority's\nmemorandum states that the \"amendment acknowledges that as the courts have held a person\nmust be a licensed attorney to represent a party before the Cook County Board of Review because practice before the Board is the practice of law - then the Commissioners * * *\nthemselves should be attorneys.\" 8 The memorandum further asserts that the amendment \"would\nimprove the ethical safeguards of the Cook County Board of Review[ ]\" and that \"[t]he public\nagrees and the voters want this amendment. As a result of the November 2020 election,for the\nfirst time in its history the voters have elected attorneys for all three Commissioners[.]\" 9 The\nqualifications for eligibility to serve on the Board and the justifications for the proposed change\noutlined in the memorandum unequivocally pertain to community interests and the Board's\ninterests in conducting public business. This office's reasoning in 2021 PAC S-0135,which\n\n7E-mail from\n\nto [Steve] Silverman (November 29, 2021).\n\nconcluded that the Board's discussions of policy changes were subject to the requirements of\nOMA, is equally applicable to this matter:\nTo construe OMA as permitting a public body to hold a\nprivate discussion of any matter pertaining to the public body's\ninterests or community interests as long as the discussion does not\ninvolve deliberations that culminate in a formal vote authorized by\na statute narrowly defines \"public business\" as limited to matters\nupon which a public body is expressly empowered to take \"final\naction.\" That interpretation is unsupported by case law, and\nadopting it would undermine the intent of the General Assembly\narticulated in section 1 of OMA: 10 \"The General Assembly * * *\ndeclares it to be the public policy of this State that its citizens shall\nbe given advance notice of and the right to attend all meetings at\nwhich any business of a public body is discussed or acted upon\nin any way.\" (Emphasis added to section 1 of OMA in original.).\nIll. Att'y Gen. PAC Req. Rev. Ltr. S-0135, issued January 19,\n2022, at 6-7.\nWith respect to the Board Majority's argument that the Board only is subject to\nOMA when it convenes as a quasi-adjudicative body to conduct particular property valuation\nfunctions prescribed under the Property Tax Code, we reiterate the conclusion in 2021 PAC S0135 that the requirements of OMA are not so limited and apply to the Board whenever at least\ntwo of its three members gather for the purpose of discussing public business:\nOMA defines \"'[q]uasi-adjudicative body\"' as \"an\nadministrative body charged by law or ordinance with the\nresponsibility to conduct hearings, receive evidence or testimony\nand make determinations based thereon, but does not include local\nelectoral boards when such bodies are considering petition\nchallenges.\" [Citation.] OMA permits quasi-adjudicative bodies\nto discuss evidence or testimony in closed session provided they\nmake publicly available written decisions setting forth the\n\nother public bodies subject to the Act. Ill. Att'y Gen. PAC Reg.\nRev. Ltr. S-0135,at 7-8.\nLastly,the Board Majority argued that \"the two Commissioners,as individuals,\nwere engaging in their protected First Amendment right to endorse legislation. This action was\nnot an action of the Cook County Board of Review. Had the Board held a meeting to discuss\nlegislation, it would have been inappropriate.\"11 The Board asserted that the two commissioners\nwere acting as individuals rather than in an official capacity. The memorandum that endorses the\nproposed amendment appears on a letterhead that identifies all three Board commissioners; it\nindicates that it is from \"Hon. Larry Rogers Jr.,Commissioner,Cook County Board of Review\"\nand \"Hon. Michael Cabonargi,Commissioner Cook County Board of Review\" and states,in\npertinent part: \"For the following reasons,we support the below amendment and respectfully\nrequest the Illinois Property Tax Code be amended to further professionalize the Cook County\nBoard of Review by adding the requirement that a Commissioner be a licensed attorney.\" 12\n(Emphasis in original.)\nAlthough the memorandum does not present itself as a recommendation by the\nfull Board,it plainly was submitted by the two Commissioners in their capacities as members of\nthe Board-not as private individuals. To be sure,OMA would not be implicated if an\nindividual Board member independently composed and submitted a recommendation about\nproposed legislation. But the memorandum at issue was submitted by two of the three members\nof the Board and it is undisputed that they discussed it. For the reasons explained above,such\ndiscussions constituted meetings subject to the requirements of OMA because they involved a\nquorum of the members of the Board and directly pertain to the public business of the Board and\ncommunity interests. OMA cannot be reasonably construed to permit members of public bodies\nto circumvent the requirements of the Act by characterizing their discussions of public business\nas discussions by individuals rather than discussions by public officials. People ex rel. Difanis v.\nBarr, 83 Ill. 2d 191,200 (1980) (General Assembly \"intended to include unofficial or informal\nmeetings within the coverage of the Act.\"); see also Acker v. Texas Water Commission, 790\nS.W.2d 299,300 (Tex. 1990) (\"When a majority of a public decisionmaking body is considering\na pending issue, there can be no 'informal' discussion. There is either formal consideration of a\nmatter in compliance with the Open Meetings Act or an illegal meeting.\"). Violations of OMA\nare not protected by the Constitution. See St. Cloud Newspaper, Inc., v. District 742 Community\nSchools, 332 N.W.2d 1,7 (Minn. 1983) (\"The Open Meeting Law does not violate the rights of\n11\n\nfree speech or free assembly under the First Amendment of the United States Constitution. These\nrights protect expression of ideas, not the right to conduct public business in closed meetings.\").\nFor the reasons stated above, this office concludes that two Commissioners'\ndiscussions related to the memorandum violated OMA and requests that members of the Board\nrefrain from discussing proposed legislative amendments and any other matters of public\nbusiness outside of a properly-noticed open meeting. The Public Access Counselor has\ndetermined that resolution of this matter does not require the issuance of a binding opinion. This\nletter shall serve to close this matter. If you have any questions, please contact me at (312) 8146756 or steven.silverman@ilag.gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n2021-PAC-S-0090 63844 o 2a meeting improper co"}
{"id":1359,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-07-05","case_number":null,"request_numbers":["68363"],"title":"City of Elmhurst City Council violated OMA by discussing conditional use permit in closed session","filename":"68363, issued July 5, 2022.pdf","rel_path":null,"word_count":2895,"summary":"A requester alleged that the Elmhurst City Council discussed matters outside the scope of the cited closed session exception during a November 2020 meeting. The PAC determined that the Council improperly discussed the merits of a conditional use permit under the guise of litigation strategy.","plain_summary":"A citizen filed a request for review with the Illinois Attorney General's Public Access Bureau, alleging that the Elmhurst City Council discussed matters in closed session during its November 23, 2020, special meeting that went beyond the scope of the litigation exception it cited. The Attorney General's office determined that the Council violated the Open Meetings Act by discussing the merits of a conditional use permit under the guise of probable litigation, rather than limiting discussion to legal strategy. The determination does not state any order or remedy regarding the release of minutes or recordings.","holding":"The City of Elmhurst violated the Open Meetings Act by discussing matters in closed session that were not authorized by the cited litigation exception.","legal_question":"Whether the City of Elmhurst violated the Open Meetings Act by discussing the merits of a conditional use permit in a closed session purportedly held for the purpose of discussing probable or imminent litigation.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"City of Elmhurst City Council","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council discussed a conditional use permit and the Elmhurst Economic Control Commission (EECC) during a closed session.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_11/Meaning-of-probable-or-imminent/68363, issued July 5, 2022.pdf","sha256":"224ccb438e6e7fdbd446c0d6fc787d43e1cb14bb7a50c4d5ae14f65ae56018af","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","litigation exception","meeting minutes","zoning permit"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 5, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Scott M. Levin\nMayor\nCity of Elmhurst\nCity Hall\n209 North York Street\nElmhurst, Illinois 60126\nScott. levin@elmhurst. org\nRE:\nDear\n\nOMA Request for Review – 2021 PAC C-0014/ 2021 PAC 68363 1\n\nand Mr. Levin:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the City of Elmhurst ( City) City Council ( Council) violated OMA during\nits November 23, 2020, special meeting by discussing matters in closed session that were not\nauthorized by the exception that the Council relied on to close the meeting\nBACKGROUND\nOn April 18, 2021,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Council violated OMA during the closed session portion of its\nNovember 23, 2020, special meeting when it discussed matters beyond the scope of the closed\n1Because of the breach to the Attorney General' s Office' s computer network, this office initially\nopened this Request for Review under a temporary file number. Please note the permanent file number as indicated.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 2\n\nsession exception that the Council cited as its basis for closing the meeting. On May 11, 2021,\nthis office forwarded a copy of the Request for Review to the Council and asked it to respond to\nallegations and to provide copies of the meeting minutes and the verbatim recordings of\nthe closed special meeting. On May 20, 2021, this office received the Council' s written response\nand the requested materials, along with a redacted version of the written response suitable for\ndistribution to\nOn May 25, 2021, this office forwarded the redacted copy of the\nCouncil' s response to\nwith an opportunity to reply. On May 26, 2021, he submitted his\nreply.\nDETERMINATION\nTime Limit for Requests for Review\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) ( West 2020)) provides, in pertinent\npart:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If\nfacts concerning the violation are not discovered within the 60day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. ( Emphasis added.)\nasserted that his Request for Review was timely filed despite being\nsubmitted more than 60 days after the date of the alleged violation. He stated that he only\ndiscovered the violation after reading an article in the local paper, The Patch, published on April\n13, 2021. That article described a closed Council meeting in \"late November\" in which the\nCouncil discussed the terms of a conditional use permit issued to the Elmhurst Extended Care\nCenter ( EECC). 3 From that article,\nsurmised that the discussion occurred at the\nNovember 23, 2020, special meeting, the agenda for which stated the basis of the closed\n2\"\n\nUpon request, the public body may also furnish the Public Access Counselor with a redacted\ncopy of the answer excluding specific references to any matters at issue.\" 5 ILCS 120/ 3.5(c) ( West 2020).\n3David Giuliani, Elmhurst Nursing Home Project Questioned, THE PATCH, April 13, 2021,\nhttps:// patch.com/illinois/ elmhurst/ elmhurst- nursing- home- project- questioned\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 3\n\nmeeting: \" Executive Session for the Purpose of Discussing: Pending/ Probable Litigation\npursuant to the Open Meetings Act[.]\" 4 Because the alleged violation occurred in closed session,\nit does not appear that\ncould have learned material facts concerning the alleged violation\nat the November 23, 2020, meeting until information concerning that matter was reported in The\nPatch.\ninitially submitted this Request for Review on April 15, 2021, and then again on\nApril 18, 2021, both within 60 days of his discovery of information about the closed session. 5\nAccordingly, this Request for Review was filed within the time limits set out in section 3.5(a) of\nOMA, and this office has authority to review\nallegations concerning the November 23,\n2020, meeting.\nSection 2(c)(11) of OMA\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Section 2(a) of\nOMA ( 5 ILCS 120/ 2(a) ( West 2020)) provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2(c) of OMA ( 5 ILCS 120/ 2(c) (West 2020)) and the meeting is closed in accordance with\nsection 2a ( 5 ILCS 120/ 2a ( West 2020).\nSection 2(c)(11) provides an exception for:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds that\nan action is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\n5 ILCS 120/ 2(c)(11) ( West 2020). The section 2(c) exceptions \" are in derogation of the\nrequirement that public bodies meet in the open, and therefore, the exceptions are to be strictly\nconstrued, extending only to subjects clearly within their scope.\" ( Emphasis added.) 5 ILCS\n120/ 2(b) (West 2020).\n\n4Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General,\n\nApril 15, 2021).\ninitially attempted to file his Request for Review via electronic mail on April 15, 2021.\nHowever, due to the breach to the Attorney General' s Office computer network, his e-mail was rejected. Thereafter,\nhe submitted his Request for Review via U.S. Postal Service on April 18, 2021. This copy was received by this\noffice on April 29, 2021.\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 4\n\nalleges that the Council' s discussion at the closed session portion of the\nNovember 23, 2020, meeting exceeded the scope of section 2(c)(11): \"[ L]itigation may be\ndiscussed in closed session only when it is \" filed\" and \" pending\", or \" when the public body finds\nthat an action is probable or imminent[.]\" 6 In its response to the Request for Review, the\nCouncil did not assert that the discussion at the November 23, 2020, closed session concerned\nlitigation that was filed or pending at the time of the meeting.\nAlthough section 2(c)(11) of OMA permits public bodies to discuss \" probable or\nimminent\" litigation in closed session, \" there must be reasonable grounds to believe that a\nlawsuit is more likely than not to be instituted or that such an occurrence is close at hand[,]\" and\nsuch a determination must be made \" by examining the surrounding circumstances in light of\nlogic, experience, and reason.\" Ill. Att'y Gen. Op. No. 26, issued December 23, 1983, at 10. In\nHenry v. Anderson, 356 Ill. App. 3d at 956- 57, the Illinois Appellate Court strictly construed the\nsection 2(c)(11) exception, stating:\nIf the litigation has not yet been filed, the public body must ( 1) find\nthat the litigation is probable or imminent and ( 2) record and enter\ninto the minutes the basis for that finding. Evidently, the\nlegislature intended to prevent public bodies from using the distant\npossibility of litigation as pretext for closing their meetings to the\npublic.\nThe Attorney General analyzed the section 2(c)(11) exception at length in Ill. Att'y Gen. Pub.\nAcc. Op. No. 16-007, issued September 13, 2016, concluding:\nT]he section 2(c)( 11) exception does not permit a public body to\nenter closed session to discuss the possibility of litigation merely\nbecause it has taken action that generated public opposition, such as\na backdoor referendum effort. In the absence of reasonable,\nspecifically identified grounds to believe that litigation was close at\nhand or more likely than not to ensue, the mere possibility that a\nlawsuit might be filed does not constitute \" probable\" or \" imminent\"\nlitigation within the scope of section 2(c)(11) of OMA.[ 7]\nIn its response to this office, the Council argued that it properly invoked section\n2(c)(11) to hold its November 23, 2020, meeting because litigation concerning the permit for\n6Letter from\nApril 15, 2021) at 2.\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\n7Ill. Att'y Gen. Pub. Acc. Op. No. 16-007, at 8.\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 5\n\nEECC was probable or imminent. The Council explained that the City had previously granted\nEECC a conditional use permit for the expansion and improvement of an existing health care\nfacility and that on November 20, 2020, EECC' s attorney submitted a letter to the Council\nrequesting an extension of that permit. Under the terms of the conditional use permit, the\nCouncil could grant the extension if it made a determination that EECC' s project was\nsubstantially under way.\" EECC' s attorney informed the Council that a denial of the extension\nwould amount to a revocation of the permit. The Council asserted to this office that:\nSometime following the November 20, 2020, letter, the City\nattorney had a conversation with [ EECC] Attorney [ Scott] Day as\nto EECC' s intent to pursue litigation in the event that the City did\nnot determine that EECC' s monetary expenditures did not show\nthat EECC was \" substantially under way\" with the conditional use\npermit as provided by City ordinance. Attorney Day informed the\nCity attorney at the time that EECC would pursue litigation against\nthe City in the event that the City determined that EECC was not\nsubstantially underway\" as that would result in the City revoking\nEECC' s conditional use permit. Attorney Day indicated that\nAttorney Tom Geselbracht had been retained by EECC for\npurposes of litigation. Contemporaneous with these discussions,\nCity attorney Storino had discussions with City staff regarding\nwhether the City should pursue litigation against EECC related to\nEECC' s lack of performance of the conditional use.[ 8]\nThe Council provided a description of the discussion held during the closed\nsession meeting in the confidential portion of its response to this office. In his reply,\nargued that a discussion of the permit itself, rather than litigation, would be improper under\nsection 2(c)(11) of OMA, and quoted an e-mail he had attached to his Request for Review sent\nby the City Manager to a member of the Council in February 2021, purportedly describing the\nclosed session meeting at issue in this matter. The e-mail stated that the Council spoke of the\nEECC conditional use permit during its November 23, 2020, closed session, and noted that \"[ a]\nmajority of Aldermen concurred with the City Attorney that EECC met the standard of\nsubstantially under way[.]'\" 9\n\n8Letter from Storino Ramello and Durkin by Donald J. Storino to Grace Angelos, Assistant\nAttorney General, State of Illinois, Public Access Bureau ( May 20, 2021) at 2.\n9E-mail from James Grabowski, Elmhurst City Manager, to Alderman Bram ( February 16, 2021),\nattached to Letter from\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General ( April 15,\n2021).\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 6\n\nAttorney General Hartigan analyzed an earlier but substantially identical version\nof section 2(c)(11) of OMA in connection with a city council' s closed session discussion related\nto the possibility of litigation in the event that a proposed annexation was approved. Ill. Att'y\nGen. Op. No. 83-026, issued December 23, 1983. He found that the city council appeared to\nhave \" acted prematurely in closing the meeting on the basis of the litigation exception in that\nlitigation over the annexation could not have been probable or imminent until the * * * city\ncouncil voted to adopt the annexation ordinance.\" Ill. Att'y Gen. Op. No. 83-026 at 13.\nSimilarly, the Attorney General concluded that a closed session discussion concerning the merits\nof a landfill ordinance and hosting agreement was not proper under section 2(c)(11) of OMA\neven when the public body had previously received a letter discussing the possibility of litigation\nbrought against it relating to the landfill ordinance. Ill. Att'y Gen. Pub. Acc. Op. No. 12-013,\nissued November 5, 2012, at 4-5. In that matter, the corporation had written to the public body\nsuggesting that a lawsuit would be filed if the parties could not reach an agreement\" concerning\nthe legality of an amendment to a landfill ordinance, and the public body discussed in closed\nsession the corporation' s proposal for resolving the matter prior to filing suit. Ill. Att'y Gen. Pub.\nAcc. Op. No. 12-013, issued November 5, 2012, at 5. There, the Attorney General concluded\nthat \" even if there are reasonable grounds to believe that litigation is probable or imminent, it is\nnot permissible for a public body to use the closed session to discuss taking an action or to make\na decision on the underlying issue that is likely to be the subject of the litigation.\" Finally, even\nonce the litigation exception is properly invoked, the only matters which may lawfully be\ndiscussed at the closed meeting are the \" strategies, postures, theories, and consequences of the\nlitigation itself.\" Ill. Att'y Gen. Op. No. 83-026 at 14. See City of Bloomington v. Raoul, 2021\nIL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372 ( finding closed session discussion exceeded\nscope of section 2(c)(11) because \"[ a] bsent from the closed session was any discussion of legal\ntheories, defenses, claims, or possible approaches to litigation\").\nAlthough the conversation described by the Council between the City Attorney\nand EECC' s attorney signaled that a lawsuit could possibly be forthcoming, that litigation hinged\non the question of whether EECC' s project was \" substantially under way.\" Litigation could have\nbecome \" probable or imminent,\" but only in the event the City first determined that the project\nwas not \" substantially under way\" and revoked the permit. Similarly, although the Council\nstated that the City Attorney had \" discussions with City staff regarding whether the City should\npursue litigation against EECC,\" at the time of the November 23, 2020, meeting, there is no\nindication that the City had reached the conclusion that EECC' s project was not \" substantially\nunder way,\" which would have prompted a determination of what legal action the City should\ntake with respect to the EECC permit. As discussed above, this office has previously determined\nthat discussions on the merits of an underlying issue cannot be held in closed session pursuant to\nsection 2(c)(11) even if one of the possible conclusions of those discussions may result in\nlitigation. See also City of Bloomington, 2021 IL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372\nclosed session discussion of \"Option A, Option B, and other options to terminate the agreement\"\nwere not authorized under section 2(c)( 11) of OMA).\n\n\fThe Honorable Scott M. Levin\nJuly 5, 2022\nPage 7\n\nThis office's review of the verbatim recording confirms that the Council had to\nresolve an underlying issue before litigation, whether it be brought by EECC or the City, could\nbe imminent or probable. Although this office is not permitted to describe in detail the\ndiscussion that occurred at the November 23, 2020, closed session, it is apparent that the portion\nof the meeting pertaining to EECC centered on EECC and the conditional use permit rather than\nstrategies, posture, theories, and consequences\" of probable or imminent litigation. Because\nthere was no \" imminent\" or \" probable\" litigation at the time of that meeting and because the\nCouncil' s discussions during the November 23, 2020, closed meeting concerned the merits of an\nunderlying issue, this office concludes that the Council violated section 2(a) of OMA.\nTo remedy this violation, this office asks the Council to vote to disclose the\nclosed session minutes and verbatim recording of the portion of the November 23, 2020, special\nmeeting relating to EECC and then provide\nwith copies of those materials.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. Please contact me at (773)\n590- 7071 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n68363 C-0014 o 2c11 improper mun\ncc:\n\nVia electronic mail\nMr. Donald J. Storino\nStorino Ramello and Durkin\n9501 West Devon Avenue\nRosemont, Illinois 60018\nDon@srd- law.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's closed-session discussion of a conditional use permit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68363/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 5, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Scott M. Levin\nMayor\nCity of Elmhurst\nCity Hall\n209 North York Street\nElmhurst, Illinois 60126\nScott. levin@elmhurst. org\nRE:\nDear\n\nOMA Request for Review – 2021 PAC C-0014/ 2021 PAC 68363 1\n\nand Mr. Levin:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the City of Elmhurst (City) City Council (Council) violated OMA during\nits November 23, 2020, special meeting by discussing matters in closed session that were not\nauthorized by the exception that the Council relied on to close the meeting\nBACKGROUND\nOn April 18, 2021,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Council violated OMA during the closed session portion of its\nNovember 23, 2020, special meeting when it discussed matters beyond the scope of the closed\n1 Because of the breach to the Attorney General's Office's computer network, this office initially\nopened this Request for Review under a temporary file number. Please note the permanent file number as indicated.\n\nsession exception that the Council cited as its basis for closing the meeting. On May 11, 2021,\nthis office forwarded a copy of the Request for Review to the Council and asked it to respond to\nallegations and to provide copies of the meeting minutes and the verbatim recordings of\nthe closed special meeting. On May 20, 2021, this office received the Council's written response\nand the requested materials, along with a redacted version of the written response suitable for\ndistribution to\nOn May 25, 2021, this office forwarded the redacted copy of the\nCouncil's response to\nwith an opportunity to reply. On May 26, 2021, he submitted his\nreply.\nDETERMINATION\nTime Limit for Requests for Review\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides, in pertinent\npart:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later 60 days after the alleged OMA violation. If\nfacts concerning the violation are not discovered within the 60day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\nasserted that his Request for Review was timely filed despite being\nsubmitted more than 60 days after the date of the alleged violation. He stated that he only\ndiscovered the violation after reading an article in the local paper, The Patch, published on April\n13, 2021. That article described a closed Council meeting in \"late November\" in which the\nCouncil discussed the terms of a conditional use permit issued to the Elmhurst Extended Care\nCenter (EECC). 3 From that article,\nsurmised that the discussion occurred at the\nNovember 23, 2020, special meeting, the agenda for which stated the basis of the closed\n2\"\n\nUpon request, the public body may also furnish the Public Access Counselor with a redacted\ncopy of the answer excluding specific references to any matters at issue.\" 5 ILCS 120/ 3.5(c) (West 2020).\n\nmeeting: \" Executive Session for the Purpose of Discussing: Pending/ Probable Litigation\npursuant to the Open Meetings Act[.]\" 4 Because the alleged violation occurred in closed session,\nit does not appear that\ncould have learned material facts concerning the alleged violation\nat the November 23, 2020, meeting until information concerning that matter was reported in The\nPatch.\ninitially submitted this Request for Review on April 15, 2021, and then again on\nApril 18, 2021, both within 60 days of his discovery of information about the closed session. 5\nAccordingly, this Request for Review was filed within the time limits set out in section 3.5(a) of\nOMA, and this office has authority to review\nallegations concerning the November 23,\n2020, meeting.\nSection 2(c)(11) of OMA\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Section 2(a) of\nOMA (5 ILCS 120/ 2(a) (West 2020)) provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2(c) of OMA (5 ILCS 120/ 2(c) (West 2020)) and the meeting is closed in accordance with\nsection 2a (5 ILCS 120/ 2a (West 2020).\nSection 2(c)(11) provides an exception for:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds that\nan action is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\n5 ILCS 120/ 2(c)(11) (West 2020). The section 2(c) exceptions \" are in derogation of the\nrequirement that public bodies meet in the open, and therefore, the exceptions are to be strictly\nconstrued, extending only to subjects clearly within their scope.\" (Emphasis added.) 5 ILCS\n120/ 2(b) (West 2020).\n\n4 Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney General,\n\nApril 15, 2021).\ninitially attempted to file his Request for Review via electronic mail on April 15, 2021.\nHowever, due to the breach to the Attorney General's Office computer network, his e-mail was rejected. Thereafter,\nhe submitted his Request for Review via U.S. Postal Service on April 18, 2021. This copy was received by this\n\nalleges that the Council's discussion at the closed session portion of the\nNovember 23, 2020, meeting exceeded the scope of section 2(c)(11): \"[ L]itigation may be\ndiscussed in closed session only when it is \" filed\" and \" pending\", or \" when the public body finds\nthat an action is probable or imminent[.]\" 6 In its response to the Request for Review, the\nCouncil did not assert that the discussion at the November 23, 2020, closed session concerned\nlitigation that was filed or pending at the time of the meeting.\nAlthough section 2(c)(11) of OMA permits public bodies to discuss \" probable or\nimminent\" litigation in closed session, \" there must be reasonable grounds to believe that a\nlawsuit is more likely than not to be instituted or that such an occurrence is close at hand[,]\" and\nsuch a determination must be made \" by examining the surrounding circumstances in light of\nlogic, experience, and reason.\" Ill. Att'y Gen. Op. No. 26, issued December 23, 1983, at 10. In\nHenry v. Anderson, 356 Ill. App. 3d at 956- 57, the Illinois Appellate Court strictly construed the\nsection 2(c)(11) exception, stating:\nIf the litigation has not yet been filed, the public body must (1) find\nthat the litigation is probable or imminent and (2) record and enter\ninto the minutes the basis for that finding. Evidently, the\nlegislature intended to prevent public bodies from using the distant\npossibility of litigation as pretext for closing their meetings to the\npublic.\nThe Attorney General analyzed the section 2(c)(11) exception at length in Ill. Att'y Gen. Pub.\nAcc. Op. No. 16-007, issued September 13, 2016, concluding:\nT]he section 2(c)(11) exception does not permit a public body to\nenter closed session to discuss the possibility of litigation merely\nbecause it has taken action that generated public opposition, such as\na backdoor referendum effort. In the absence of reasonable,\nspecifically identified grounds to believe that litigation was close at\nhand or more likely than not to ensue, the mere possibility that a\nlawsuit might be filed does not constitute \" probable\" or \" imminent\"\nlitigation within the scope of section 2(c)(11) of OMA.[ 7]\nIn its response to this office, the Council argued that it properly invoked section\n2(c)(11) to hold its November 23, 2020, meeting because litigation concerning the permit for\n\nEECC was probable or imminent. The Council explained that the City had previously granted\nEECC a conditional use permit for the expansion and improvement of an existing health care\nfacility and that on November 20, 2020, EECC's attorney submitted a letter to the Council\nrequesting an extension of that permit. Under the terms of the conditional use permit, the\nCouncil could grant the extension if it made a determination that EECC's project was\nsubstantially under way.\" EECC's attorney informed the Council that a denial of the extension\nwould amount to a revocation of the permit. The Council asserted to this office that:\nSometime following the November 20, 2020, letter, the City\nattorney had a conversation with [ EECC] Attorney [ Scott] Day as\nto EECC's intent to pursue litigation in the event that the City did\nnot determine that EECC's monetary expenditures did not show\nthat EECC was \" substantially under way\" with the conditional use\npermit as provided by City ordinance. Attorney Day informed the\nCity attorney at the time that EECC would pursue litigation against\nthe City in the event that the City determined that EECC was not\nsubstantially underway\" as that would result in the City revoking\nEECC's conditional use permit. Attorney Day indicated that\nAttorney Tom Geselbracht had been retained by EECC for\npurposes of litigation. Contemporaneous with these discussions,\nCity attorney Storino had discussions with City staff regarding\nwhether the City should pursue litigation against EECC related to\nEECC's lack of performance of the conditional use.[ 8]\nThe Council provided a description of the discussion held during the closed\nsession meeting in the confidential portion of its response to this office. In his reply,\nargued that a discussion of the permit itself, rather than litigation, would be improper under\nsection 2(c)(11) of OMA, and quoted an e-mail he had attached to his Request for Review sent\nby the City Manager to a member of the Council in February 2021, purportedly describing the\nclosed session meeting at issue in this matter. The e-mail stated that the Council spoke of the\nEECC conditional use permit during its November 23, 2020, closed session, and noted that \"[ a]\nmajority of Aldermen concurred with the City Attorney that EECC met the standard of\nsubstantially under way[.]'\" 9\n\n8 Letter from Storino Ramello and Durkin by Donald J. Storino to Grace Angelos, Assistant\n\nAttorney General Hartigan analyzed an earlier but substantially identical version\nof section 2(c)(11) of OMA in connection with a city council's closed session discussion related\nto the possibility of litigation in the event that a proposed annexation was approved. Ill. Att'y\nGen. Op. No. 83-026, issued December 23, 1983. He found that the city council appeared to\nhave \" acted prematurely in closing the meeting on the basis of the litigation exception in that\nlitigation over the annexation could not have been probable or imminent until the * * * city\ncouncil voted to adopt the annexation ordinance.\" Ill. Att'y Gen. Op. No. 83-026 at 13.\nSimilarly, the Attorney General concluded that a closed session discussion concerning the merits\nof a landfill ordinance and hosting agreement was not proper under section 2(c)(11) of OMA\neven when the public body had previously received a letter discussing the possibility of litigation\nbrought against it relating to the landfill ordinance. Ill. Att'y Gen. Pub. Acc. Op. No. 12-013,\nissued November 5, 2012, at 4-5. In that matter, the corporation had written to the public body\nsuggesting that a lawsuit would be filed if the parties could not reach an agreement\" concerning\nthe legality of an amendment to a landfill ordinance, and the public body discussed in closed\nsession the corporation's proposal for resolving the matter prior to filing suit. Ill. Att'y Gen. Pub.\nAcc. Op. No. 12-013, issued November 5, 2012, at 5. There, the Attorney General concluded\nthat \" even if there are reasonable grounds to believe that litigation is probable or imminent, it is\nnot permissible for a public body to use the closed session to discuss taking an action or to make\na decision on the underlying issue that is likely to be the subject of the litigation.\" Finally, even\nonce the litigation exception is properly invoked, the only matters which may lawfully be\ndiscussed at the closed meeting are the \" strategies, postures, theories, and consequences of the\nlitigation itself.\" Ill. Att'y Gen. Op. No. 83-026 at 14. See City of Bloomington v. Raoul, 2021\nIL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372 (finding closed session discussion exceeded\nscope of section 2(c)(11) because \"[ a] bsent from the closed session was any discussion of legal\ntheories, defenses, claims, or possible approaches to litigation\").\nAlthough the conversation described by the Council between the City Attorney\nand EECC's attorney signaled that a lawsuit could possibly be forthcoming, that litigation hinged\non the question of whether EECC's project was \" substantially under way.\" Litigation could have\nbecome \" probable or imminent,\" but only in the event the City first determined that the project\nwas not \" substantially under way\" and revoked the permit. Similarly, although the Council\nstated that the City Attorney had \" discussions with City staff regarding whether the City should\npursue litigation against EECC,\" at the time of the November 23, 2020, meeting, there is no\nindication that the City had reached the conclusion that EECC's project was not \" substantially\nunder way,\" which would have prompted a determination of what legal action the City should\ntake with respect to the EECC permit. As discussed above, this office has previously determined\nthat discussions on the merits of an underlying issue cannot be held in closed session pursuant to\nsection 2(c)(11) even if one of the possible conclusions of those discussions may result in\nlitigation. See also City of Bloomington, 2021 IL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372\nclosed session discussion of \"Option A, Option B, and other options to terminate the agreement\"\n\nThis office's review of the verbatim recording confirms that the Council had to\nresolve an underlying issue before litigation, whether it be brought by EECC or the City, could\nbe imminent or probable. Although this office is not permitted to describe in detail the\ndiscussion that occurred at the November 23, 2020, closed session, it is apparent that the portion\nof the meeting pertaining to EECC centered on EECC and the conditional use permit rather than\nstrategies, posture, theories, and consequences\" of probable or imminent litigation. Because\nthere was no \" imminent\" or \" probable\" litigation at the time of that meeting and because the\nCouncil's discussions during the November 23, 2020, closed meeting concerned the merits of an\nunderlying issue, this office concludes that the Council violated section 2(a) of OMA.\nTo remedy this violation, this office asks the Council to vote to disclose the\nclosed session minutes and verbatim recording of the portion of the November 23, 2020, special\nmeeting relating to EECC and then provide\nwith copies of those materials.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. Please contact me at (773)\n590- 7071 or the Chicago address listed on the first page if you have any questions.\nVery truly yours,\n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n68363 C-0014 o 2c11 improper mun\ncc:\n\nVia electronic mail\nMr. Donald J. Storino\nStorino Ramello and Durkin\n9501 West Devon Avenue\nRosemont, Illinois 60018\nDon@srd- law.com"}
{"id":1361,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-01-19","case_number":null,"request_numbers":["68599"],"title":"Cook County Board of Review held improper closed meeting in violation of Open Meetings Act","filename":"68599, issued January 19, 2022__1.pdf","rel_path":null,"word_count":3285,"summary":"The PAC investigated a complaint that the Cook County Board of Review held an improper closed meeting to discuss policy recommendations from the Inspector General's Office. The PAC determined that the Board violated the Open Meetings Act by deliberating on public business in a private session.","plain_summary":"A staff member alleged that the Cook County Board of Review held a private meeting that should have been open to the public. The Illinois Attorney General's Public Access Bureau determined that the Board held an improper closed meeting on March 10, 2021, in violation of the Open Meetings Act.","holding":"The Cook County Board of Review held an improper closed meeting on March 10, 2021, in violation of the Open Meetings Act.","legal_question":"Whether the Cook County Board of Review violated the Open Meetings Act by discussing policy recommendations and public business in a closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2a"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Cook County Board of Review","requesting_party":"Mr. Todd Thielmann","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a private meeting to discuss policy recommendations from the Inspector General's Office, including hiring outside counsel and employee job descriptions.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_d/quasi-adjudicative-body/68599, issued January 19, 2022.pdf","sha256":"6d61b61e7bc5e3f6e3e4080d0e61ccfd076a27b6b0a29f48dc4fbc8d2acb8941","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","open meetings act","public business","board of review"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 19, 2022\n\nVia electronic mail\nMr. Todd Thielmann, CIAO\n\nChief of Staff – Commissioner Tammy Wendt\nCook County Board of Review\n118 North Clark Street, Room 601\n\n[street address redacted for site publication -- see original PDF]\ntodd. thielmann@cookcountyil. gov\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink, A Professional Corporation\n\n140 South Dearborn Street, Suite 600\nChicago, Illinois 60603\n\nkkrafthefer@ancelglink.com\nRE: OMA Request for Review – 2021-PAC-S-0135\nDear Mr. Thielmann and Ms. Krafthefer:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Cook County Board of Review (Board) held an improper closed meeting on\nMarch 10, 2021.\nIn his Request for Review, submitted May 10, 2021, Mr. Todd Thielmann alleged\n\nthat the Board held an improper private meeting on March 10, 2021, to discuss recommendations\nmade by the Cook County Office of the Independent Inspector General ( Inspector General' s\n\nOffice). Mr. Thielmann submitted the complaint as Chief of Staff for Tammy Wendt, one of the\nthree Commissioners on the Board. He stated that in addition to Ms. Wendt and the other two\n\nCommissioners— Larry Rogers, Jr. and Michael Cabonargi— the meeting included three named\nfirst assistants, Mr. Rogers' chief of staff, the Board secretary, and two Cook County Assistant\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 2\n\nState's Attorneys. Mr. Thielmann provided meeting scheduling documentation reflecting the\nmeeting timing and participants.\nOn May 13, 2021, this office forwarded a copy of the Request for Review to\n\nCommissioners Rogers and Cabonargi and asked that the Board provide this office with copies\nof any notices, agendas, minutes, and recordings from its March 10, 2021, gathering for this\n\noffice's confidential review. This office also asked the Board to respond in writing to the\nallegation that the gathering constituted an improper private meeting, explaining the extent to\n\nwhich the Board discussed the transaction of public business. On July 24, 2021, an attorney for a\nlaw firm appointed as Special Assistant State' s Attorneys for Commissioners Rogers and\n\nCabonargi (Board Majority), Ms. Keri-Lyn J. Krafthefer, provided a written response. On\nAugust 4, 2021, Mr. Thielmann submitted a reply. On September 6, 2021, Ms. Krafthefer stated\n\nthat the Board Majority wished to provide this office with new information about this matter.\nMs. Krafthefer provided that supplemental argument on November 16, 2021. On November 23,\n\n2021, Mr. Thielmann submitted a supplemental reply to that supplemental submission.\nDETERMINATION\n\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA ( 5 ILCS 120/ 1.02 ( West 2020)) defines \" public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\n\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\n\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue, except the\n\nGeneral Assembly and committees or commissions thereof.\nPublic body\" includes tourism boards and convention or civic\n\ncenter boards located in counties that are contiguous to the\nMississippi River with populations of more than 250, 000 but less\n\nthan 300,000. \"Public body\" includes the Health Facilities and\nServices Review Board. \" Public body\" does not include a child\n\ndeath review team or the Illinois Child Death Review Teams\nExecutive Council established under the Child Death Review\n\nTeam Act, an ethics commission acting under the State Officials\nand Employees Ethics Act, a regional youth advisory board or the\n\nStatewide Youth Advisory Board established under the\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 3\n\nDepartment of Children and Family Services Statewide Youth\nAdvisory Board Act, or the Illinois Independent Tax Tribunal.\nIn its initial response to this office, the Board Majority argued that the \" meeting\n\nheld on March 10, 2021 was not an improperly closed meeting in violation of the OMA because\nthe meeting was held to discuss purely administrative matters unrelated to the transaction of\n\npublic business by the Board.\" 1 Acknowledging that the Board \"is a public body entrusted with\nperforming certain public duties, including receiving evidence, conducting hearings, and issuing\n\ndecisions concerning residential and commercial tax assessment appeals, tax exemptions and the\nproperty rights of others in Cook County[,]\" the Board Majority claimed that \"[ a] t the March 10,\n\n2021 meeting at issue, the Board did not discuss any of those matters pertaining to its public\nbusiness.\" 2 The Board Majority' s attorney continued:\nInstead of discussing public business pertaining to the Board, the\n\nmeeting at issue was held to discuss matters purely administrative\nin nature, such as establishing job descriptions for Board of\n\nReview employees, discussions concerning whether certain staff\nmembers should be allowed to go home, and whether the Board of\n\nReview needed to hire outside counsel for certain labor matters.\nAll of these conversations took place with the attorneys for the\nBoard of Review, which were the designated Assistant State' s\n\nAttorneys. There are many administrative matters that the Board\nmembers provide direction to staff about that do not require a vote\n\nof the Board of Review. Conversations occur regularly about\nwhether the Board should order more pencils, or whether staff\n\nshould be allowed to go home early on a holiday weekend, and all\nsorts of related issues. These daily administrative decisions do not\n\nconstitute public business of the Board of Review because they are\nunrelated to the Board' s ultimate functions.[ 3]\nIn his reply, Mr. Thielmann disputed the Board Majority' s depiction of the\n\nsubstance of the March 10, 2021, meeting, which he attended. He argued:\n\n1Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General ( July 24, 2021), at 1.\n2Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 24, 2021), at 2.\n3Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 24, 2021), at 2.\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 4\n\nThe meeting was requested to address recommendations\noutlined by the Cook County Inspector General concerning many\n\npolicies at the Cook County Board of Review. Most of these\npolicies are public business and not purely administrative as\n\ndefended by counsel. How the Cook County Board of Review\ndescribes the jobs that public employees engage in, is public\n\nbusiness. It defines their role and delegates their responsibilities\nwithin the Cook County Board of Review.[ 4]\nAddressing the Board Majority' s argument that ordering pencils is purely administrative, Mr.\n\nThielmann argued that as a public body the Board \"needs to be transparent about who the pencils\nare ordered from, how much they cost and if a request for bid was submitted, if required.\" 5\nIn its supplemental response, the Board Majority argued that \"[ t]wo issues are\n\ncritical to the resolution of this matter.\" 6 Addressing the first issue— discussion of public\nbusiness— Ms. Krafthefer asserted:\nIt is the position of Commissioners Rogers and Cabonargi that\n\npublic business\" would mean anything that the Board of Review\nwould be called upon to ultimately vote on at a public meeting.\nThe matters that were discussed at the March 10, 2021 staff\n\nmeeting were not matters that the Board of Review would ever\nvote on.[ 7]\nThe second critical issue, according to the Board Majority, is that \" the Board of Review is a\n\nquasi-adjudicative body that only comes in existence to consider property tax complaints. Unlike\nmost public bodies which are not quasi- adjudicative in nature, it does not have the ability or\n\npower to hold a 'meeting' for any other purpose.\" 8 Stating that the Board's powers are set forth in\n4Letter from Todd Thielmann to Deputy Bureau Chief Jones (August 4, 2021).\n5Letter from Todd Thielmann to Deputy Bureau Chief Jones (August 4, 2021).\n6Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General ( November 16, 2021), at 1.\n7Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 1.\n8Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 1.\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 5\n\nsection 16-95 of the Property Tax Code (35 ILCS 200/16-95 (West 2020)), the Board Majority\nargued that:\nAs this section of the Property Tax Code shows, boards of\n\nreview are statutory creatures with very narrow functions. While\nthe hearings they hold must be open and are subject to the Open\n\nMeetings Act, the Board has no statutory power to decide it is\ngoing to hold a general \" meeting\" to discuss how its office will\n\noperate, just like judges do not have open meetings to discuss\nstaffing issues behind courtroom doors.[ 9]\nMs. Krafthefer additionally quoted sections 16- 105, 16- 110, and 16- 125 of the Property Tax\n\nCode, (35 ILCS 200/16-105, 16-110, 16-125 (West 2020)), which concern the Board's \" Time of\nmeeting,\" \" Notice of meetings,\" and \" Hearings,\" respectively.\n\nShe further argued:\n\nIf one reviews the entirety of the Illinois Property Tax\n\nCode, one would find that there the Board of Review does not\npossess authority to have meetings for any other purpose other than\n\nits statutory functions. This is unlike, for example, Illinois\nmunicipalities which have power conferred upon them by the\nIllinois Municipal Code to call and hold public meetings. There is\n\nno requirement that the Board of Review meet in open session to\ndiscuss the administrative operations of its office; it has no\n\nstatutory authority to have such meetings. It has an opening session\nand a closing session for each tax year; and then hearings on\n\ncomplaints.\nIf there is going to be a requirement that the Board meet in\nopen session to discuss its office operations unrelated to the public\n\nbusiness of the Board, the Property Tax Code will need to be\namended to allow the Board of Review to meet for that purpose. It\n\nwas not the intention of the Open Meetings Act for adjudicative\nbodies to have public meetings for purposes that do not related\n\nsic] to the public business those bodies transact.[10]\n\n9Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 2.\n10Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 4.\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 6\n\nIn his supplemental reply, Mr. Thielmann stated: \" I won't bore you with citation\nof the property tax statute as the other 101 Boards of Review within Illinois do operate within the\n\nframework of the Open Meetings Act.\" 11 He enclosed an opinion from the Cook County State's\nAttorney' s Office concluding that the Board is a public body subject to OMA. 12 Mr. Thielmann\n\nadditionally argued that it is immaterial that the Board did not conduct public business in the\nform of taking final action during the gathering on March 10, 2021, because deliberation about\n\npublic business is within the scope of the Act.\nAddressing the critical issues Ms. Krafthefer raises in turn, the meaning of \"public\nbusiness\" for purposes of OMA is not limited to items on which the Board necessarily intends to\n\nvote. Under the Open Meetings Act, \"meeting\" is defined as \" any gathering of a majority of a\nquorum of the members of a public body held for the purpose of discussing public business.\"\n\nEmphasis added.) 5 ILCS 120/1.02 (West 2020). OMA does not define \"public business.\" In\nCity of Champaign v. Madigan, 2013 IL App ( 4th) 120662, ¶ 31, 992 N.E.2d 629, 637 ( 2013), the\n\nIllinois Appellate Court examined the meaning of the term \"public business\" in the context of a\nFreedom of Information Act ( FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2020)) request involving\n\ncommunications sent and received by members of a public body during an open meeting. The\ncourt found that the term \" public business\" has a plain and ordinary meaning: \" to qualify as a\n\npublic record a communication must first pertain to 'business or community interests as opposed\nto private affairs.'\" City of Champaign, 2013 IL App (4th) 120662, ¶31, 992 N.E.2d at 637\nquoting Merriam– Webster' s Collegiate Dictionary 941 ( 10th ed. 2000)). The meaning in FOIA\n\nis relevant to the meaning in OMA because \"[ b]oth statutes ensure the public's access to\ninformation concerning the conduct of public bodies, except in limited circumstances, and must\n\nbe construed together.\" Copley Press, Inc. v. Board of Education for Peoria School District No.\n150, 359 Ill. App. 3d 321, 325, 834 N.E.2d 558, 562 ( 3d Dist. 2005). Whether formal policy\n\nchanges are a matter of public business is not a close call. Mr. Thielmann described his firsthand\nknowledge of the substantive policy discussion the commissioners engaged in on March 10,\n\n2021.\nTo construe OMA as permitting a public body to hold a private discussion of any\nmatter pertaining to the public body' s interests or community interests as long as the discussion\n\ndoes not involve deliberations that culminate in a formal vote authorized by a statute is to\nnarrowly define \" public business\" as limited to matters upon which a public body is expressly\n\nempowered to take \"final action.\" That interpretation is unsupported by case law, and adopting it\n\n11Letter from Todd Thielmann to Deputy Bureau Chief Jones ( November 23, 2021), at [1].\n12Letter from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's Attorney's\nOffice, to Commissioner Wendt (March 31, 2021).\n\n\fMr. Todd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 7\n\nwould undermine the intent of the General Assembly articulated in section 1 of OMA:13 \" The\nGeneral Assembly * * *\n\ndeclares it to be the public policy of this State that its citizens shall be\n\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" ( Emphasis added.) As the Deputy Chief of the\n\nCivil Actions Bureau for the Cook County State's Attorney's Office, Amy Crawford, stated in her\nwritten legal opinion to Commissioner Wendt:\nAlthough the term \" public business\" is not defined in OMA, case\n\nlaw indicates that OMA's provisions are to be construed in favor of\nopenness. We are unaware of any case law that would support an\n\ninterpretation that OMA only applies to certain \"core\" decisions of\nthe public body, but not to discussions and decisions about the\n\nbody's policies. Moreover, whether a gathering of Board of\nReview members is formal or informal is irrelevant to the OMA\n\nanalysis. [Citation.][14]\nMs. Crawford cited People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 200 (1980), in which the\nIllinois Supreme Court explained that the General Assembly \" intended to include unofficial or\n\ninformal meetings within the coverage of the Act.\" Ms. Crawford's legal opinion concluded that\nmeetings to discuss Board of Review policy should be treated as subject to OMA.\"15\nWith respect to the Board Majority's argument that the Board only is subject to\nOMA when it convenes as a quasi- adjudicative body to conduct particular property valuation\n\nfunctions prescribed under the Property Tax Code, OMA defines \"'[ q]uasi-adjudicative body'\" as\nan administrative body charged by law or ordinance with the responsibility to conduct hearings,\n\nreceive evidence or testimony and make determinations based thereon, but does not include local\nelectoral boards when such bodies are considering petition challenges.\"\n\n5 ILCS 120/ 2(d) ( West\n\n2020), as amended by Public Acts 102-558, effective August 20, 2021; 102-237, effective\nJanuary 1, 2022. OMA permits quasi- adjudicative bodies to discuss evidence or testimony in\n\nclosed session provided they make publicly available written decisions setting forth the\ndeterminative reasoning. 5 ILCS 120/ 2(c)( 4) ( West 2020), as amended by Public Acts 102- 558,\n\neffective August 20, 2021; 102-237, effective January 1, 2022. OMA does not contain any other\nprovisions that address quasi- adjudicative bodies or limit the requirements of OMA for quasi-\n\n135 ILCS 120/1 (West 2020).\n14E- mail from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's\nAttorney's Office, to Commissioner Wendt (March 31, 2021).\n15E- mail from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's\nAttorney's Office, to Commissioner Wendt (March 31, 2021).\n\n\fr.\nTodd Thielmann\nMs. Keri- Lyn J. Krafthefer\n\nJanuary 19, 2022\nPage 8\n\nadjudicative bodies compared to other public bodies subject to the Act. Notably, section 2(c)(1)\nof OMA ( 5 ILCS 120/ 2(c)( 1) ( West 2020), as amended by Public Acts 102- 558, effective August\n\n20, 2021; 102-237, effective January 1, 2022) authorizes public bodies to discuss the hiring of an\nattorney in closed session, but such discussions are permissible only if the public body complies\n\nwith the statutory procedure for entering closed session16 and the other requirements of the Act.\nIt is undisputed that the Board did not comply with those requirements in connection with the\n\nMarch 10, 2021, private discussion concerning the hiring of outside counsel and other matters of\npublic business.\nLastly, this office notes that the Board' s June 29, 2021, meeting agenda contained\n\nan item for an \" Amendment to Cook County Board of Review Ethics Policy.\"17 The Board\nMajority' s argument about the restrictions of the Property Tax Code does not reconcile why the\n\nBoard was able to conduct that open meeting discussion if it was not authorized to hold an open\nmeeting discussion concerning the recommended policy changes outlined by the Inspector\n\nGeneral's Office.\nUnder the circumstances at issue here— all three commissioners gathering to\ndiscuss matters of public business such as hiring outside counsel and job descriptions for\n\nemployees related to the Inspector General's Office's recommended policy changes— the Public\nAccess Bureau concludes that the Board held an improper private meeting on March 10, 2021.\nThis office asks the Board to refrain from deliberating about Board policy changes and any other\n\nmatters of public business outside of a properly-noticed open meeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n2021-PAC-S-0135 o 2a meeting improper co\n165 ILCS 120/2a (West 2020).\n17Cook County Board of Review, Agenda Item V, Motion 2, New Business, Motion 2:\nAmendment to Cook County Board of Review Ethics Policy (June 29, 2021).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's closed-session discussion of policy recommendations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68599/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 19, 2022\n\nVia electronic mail\nMr. Todd Thielmann, CIAO\n\nChief of Staff – Commissioner Tammy Wendt\nCook County Board of Review\n118 North Clark Street, Room 601\n\n[street address redacted for site publication -- see original PDF]\ntodd. thielmann@cookcountyil. gov\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink, A Professional Corporation\n\n140 South Dearborn Street, Suite 600\nChicago, Illinois 60603\n\nkkrafthefer@ancelglink.com\nRE: OMA Request for Review – 2021-PAC-S-0135\nDear Mr. Thielmann and Ms. Krafthefer:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Cook County Board of Review (Board) held an improper closed meeting on\nMarch 10, 2021.\nIn his Request for Review, submitted May 10, 2021, Mr. Todd Thielmann alleged\n\nthat the Board held an improper private meeting on March 10, 2021, to discuss recommendations\nmade by the Cook County Office of the Independent Inspector General (Inspector General's\n\nOffice). Mr. Thielmann submitted the complaint as Chief of Staff for Tammy Wendt, one of the\nthree Commissioners on the Board. He stated that in addition to Ms. Wendt and the other two\n\nCommissioners— Larry Rogers, Jr. and Michael Cabonargi— the meeting included three named\nfirst assistants, Mr. Rogers' chief of staff, the Board secretary, and two Cook County Assistant\n\nState's Attorneys. Mr. Thielmann provided meeting scheduling documentation reflecting the\nmeeting timing and participants.\nOn May 13, 2021, this office forwarded a copy of the Request for Review to\n\nCommissioners Rogers and Cabonargi and asked that the Board provide this office with copies\nof any notices, agendas, minutes, and recordings from its March 10, 2021, gathering for this\n\noffice's confidential review. This office also asked the Board to respond in writing to the\nallegation that the gathering constituted an improper private meeting, explaining the extent to\n\nwhich the Board discussed the transaction of public business. On July 24, 2021, an attorney for a\nlaw firm appointed as Special Assistant State's Attorneys for Commissioners Rogers and\n\nCabonargi (Board Majority), Ms. Keri-Lyn J. Krafthefer, provided a written response. On\nAugust 4, 2021, Mr. Thielmann submitted a reply. On September 6, 2021, Ms. Krafthefer stated\n\nthat the Board Majority wished to provide this office with new information about this matter.\nMs. Krafthefer provided that supplemental argument on November 16, 2021. On November 23,\n\n2021, Mr. Thielmann submitted a supplemental reply to that supplemental submission.\nDETERMINATION\n\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA (5 ILCS 120/ 1.02 (West 2020)) defines \" public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\n\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\n\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue, except the\n\nGeneral Assembly and committees or commissions thereof.\nPublic body\" includes tourism boards and convention or civic\n\ncenter boards located in counties that are contiguous to the\nMississippi River with populations of more than 250, 000 but less\n\nthan 300,000. \"Public body\" includes the Health Facilities and\nServices Review Board. \" Public body\" does not include a child\n\ndeath review team or the Illinois Child Death Review Teams\n\nDepartment of Children and Family Services Statewide Youth\nAdvisory Board Act, or the Illinois Independent Tax Tribunal.\nIn its initial response to this office, the Board Majority argued that the \" meeting\n\nheld on March 10, 2021 was not an improperly closed meeting in violation of the OMA because\nthe meeting was held to discuss purely administrative matters unrelated to the transaction of\n\npublic business by the Board.\" 1 Acknowledging that the Board \"is a public body entrusted with\nperforming certain public duties, including receiving evidence, conducting hearings, and issuing\n\ndecisions concerning residential and commercial tax assessment appeals, tax exemptions and the\nproperty rights of others in Cook County[,]\" the Board Majority claimed that \"[ a] t the March 10,\n\n2021 meeting at issue, the Board did not discuss any of those matters pertaining to its public\nbusiness.\" 2 The Board Majority's attorney continued:\nInstead of discussing public business pertaining to the Board, the\n\nmeeting at issue was held to discuss matters purely administrative\nin nature, such as establishing job descriptions for Board of\n\nReview employees, discussions concerning whether certain staff\nmembers should be allowed to go home, and whether the Board of\n\nReview needed to hire outside counsel for certain labor matters.\nAll of these conversations took place with the attorneys for the\nBoard of Review, which were the designated Assistant State's\n\nAttorneys. There are many administrative matters that the Board\nmembers provide direction to staff about that do not require a vote\n\nof the Board of Review. Conversations occur regularly about\nwhether the Board should order more pencils, or whether staff\n\nshould be allowed to go home early on a holiday weekend, and all\nsorts of related issues. These daily administrative decisions do not\n\nconstitute public business of the Board of Review because they are\nunrelated to the Board's ultimate functions.[ 3]\nIn his reply, Mr. Thielmann disputed the Board Majority's depiction of the\n\nsubstance of the March 10, 2021, meeting, which he attended. He argued:\n\n1 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 24, 2021), at 1.\n2 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 24, 2021), at 2.\n3 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\n\nThe meeting was requested to address recommendations\noutlined by the Cook County Inspector General concerning many\n\npolicies at the Cook County Board of Review. Most of these\npolicies are public business and not purely administrative as\n\ndefended by counsel. How the Cook County Board of Review\ndescribes the jobs that public employees engage in, is public\n\nbusiness. It defines their role and delegates their responsibilities\nwithin the Cook County Board of Review.[ 4]\nAddressing the Board Majority's argument that ordering pencils is purely administrative, Mr.\n\nThielmann argued that as a public body the Board \"needs to be transparent about who the pencils\nare ordered from, how much they cost and if a request for bid was submitted, if required.\" 5\nIn its supplemental response, the Board Majority argued that \"[ t]wo issues are\n\ncritical to the resolution of this matter.\" 6 Addressing the first issue— discussion of public\nbusiness— Ms. Krafthefer asserted:\nIt is the position of Commissioners Rogers and Cabonargi that\n\npublic business\" would mean anything that the Board of Review\nwould be called upon to ultimately vote on at a public meeting.\nThe matters that were discussed at the March 10, 2021 staff\n\nmeeting were not matters that the Board of Review would ever\nvote on.[ 7]\nThe second critical issue, according to the Board Majority, is that \" the Board of Review is a\n\nquasi-adjudicative body that only comes in existence to consider property tax complaints. Unlike\nmost public bodies which are not quasi- adjudicative in nature, it does not have the ability or\n\npower to hold a 'meeting' for any other purpose.\" 8 Stating that the Board's powers are set forth in\n4 Letter from Todd Thielmann to Deputy Bureau Chief Jones (August 4, 2021).\n5 Letter from Todd Thielmann to Deputy Bureau Chief Jones (August 4, 2021).\n6 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 1.\n7 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 1.\n8 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\n\nsection 16-95 of the Property Tax Code (35 ILCS 200/16-95 (West 2020)), the Board Majority\nargued that:\nAs this section of the Property Tax Code shows, boards of\n\nreview are statutory creatures with very narrow functions. While\nthe hearings they hold must be open and are subject to the Open\n\nMeetings Act, the Board has no statutory power to decide it is\ngoing to hold a general \" meeting\" to discuss how its office will\n\noperate, just like judges do not have open meetings to discuss\nstaffing issues behind courtroom doors.[ 9]\nMs. Krafthefer additionally quoted sections 16- 105, 16- 110, and 16- 125 of the Property Tax\n\nCode, (35 ILCS 200/16-105, 16-110, 16-125 (West 2020)), which concern the Board's \" Time of\nmeeting,\" \" Notice of meetings,\" and \" Hearings,\" respectively.\n\nShe further argued:\n\nIf one reviews the entirety of the Illinois Property Tax\n\nCode, one would find that there the Board of Review does not\npossess authority to have meetings for any other purpose other than\n\nits statutory functions. This is unlike, for example, Illinois\nmunicipalities which have power conferred upon them by the\nIllinois Municipal Code to call and hold public meetings. There is\n\nno requirement that the Board of Review meet in open session to\ndiscuss the administrative operations of its office; it has no\n\nstatutory authority to have such meetings. It has an opening session\nand a closing session for each tax year; and then hearings on\n\ncomplaints.\nIf there is going to be a requirement that the Board meet in\nopen session to discuss its office operations unrelated to the public\n\nbusiness of the Board, the Property Tax Code will need to be\namended to allow the Board of Review to meet for that purpose. It\n\nwas not the intention of the Open Meetings Act for adjudicative\nbodies to have public meetings for purposes that do not related\n\nsic] to the public business those bodies transact.[10]\n\n9 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (November 16, 2021), at 2.\n10 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Joshua Jones, Deputy Bureau Chief, Public\n\nIn his supplemental reply, Mr. Thielmann stated: \" I won't bore you with citation\nof the property tax statute as the other 101 Boards of Review within Illinois do operate within the\n\nframework of the Open Meetings Act.\" 11 He enclosed an opinion from the Cook County State's\nAttorney's Office concluding that the Board is a public body subject to OMA. 12 Mr. Thielmann\n\nadditionally argued that it is immaterial that the Board did not conduct public business in the\nform of taking final action during the gathering on March 10, 2021, because deliberation about\n\npublic business is within the scope of the Act.\nAddressing the critical issues Ms. Krafthefer raises in turn, the meaning of \"public\nbusiness\" for purposes of OMA is not limited to items on which the Board necessarily intends to\n\nvote. Under the Open Meetings Act, \"meeting\" is defined as \" any gathering of a majority of a\nquorum of the members of a public body held for the purpose of discussing public business.\"\n\nEmphasis added.) 5 ILCS 120/1.02 (West 2020). OMA does not define \"public business.\" In\nCity of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 31, 992 N.E.2d 629, 637 (2013), the\n\nIllinois Appellate Court examined the meaning of the term \"public business\" in the context of a\nFreedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. (West 2020)) request involving\n\ncommunications sent and received by members of a public body during an open meeting. The\ncourt found that the term \" public business\" has a plain and ordinary meaning: \" to qualify as a\n\npublic record a communication must first pertain to 'business or community interests as opposed\nto private affairs.'\" City of Champaign, 2013 IL App (4th) 120662, ¶31, 992 N.E.2d at 637\nquoting Merriam– Webster's Collegiate Dictionary 941 (10th ed. 2000)). The meaning in FOIA\n\nis relevant to the meaning in OMA because \"[ b]oth statutes ensure the public's access to\ninformation concerning the conduct of public bodies, except in limited circumstances, and must\n\nbe construed together.\" Copley Press, Inc. v. Board of Education for Peoria School District No.\n150, 359 Ill. App. 3d 321, 325, 834 N.E.2d 558, 562 (3d Dist. 2005). Whether formal policy\n\nchanges are a matter of public business is not a close call. Mr. Thielmann described his firsthand\nknowledge of the substantive policy discussion the commissioners engaged in on March 10,\n\n2021.\nTo construe OMA as permitting a public body to hold a private discussion of any\nmatter pertaining to the public body's interests or community interests as long as the discussion\n\ndoes not involve deliberations that culminate in a formal vote authorized by a statute is to\nnarrowly define \" public business\" as limited to matters upon which a public body is expressly\n\nempowered to take \"final action.\" That interpretation is unsupported by case law, and adopting it\n\n11 Letter from Todd Thielmann to Deputy Bureau Chief Jones (November 23, 2021), at [1].\n12 Letter from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's Attorney's\n\nwould undermine the intent of the General Assembly articulated in section 1 of OMA:13 \" The\nGeneral Assembly * * *\n\ndeclares it to be the public policy of this State that its citizens shall be\n\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" (Emphasis added.) As the Deputy Chief of the\n\nCivil Actions Bureau for the Cook County State's Attorney's Office, Amy Crawford, stated in her\nwritten legal opinion to Commissioner Wendt:\nAlthough the term \" public business\" is not defined in OMA, case\n\nlaw indicates that OMA's provisions are to be construed in favor of\nopenness. We are unaware of any case law that would support an\n\ninterpretation that OMA only applies to certain \"core\" decisions of\nthe public body, but not to discussions and decisions about the\n\nbody's policies. Moreover, whether a gathering of Board of\nReview members is formal or informal is irrelevant to the OMA\n\nanalysis. [Citation.][14]\nMs. Crawford cited People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 200 (1980), in which the\nIllinois Supreme Court explained that the General Assembly \" intended to include unofficial or\n\ninformal meetings within the coverage of the Act.\" Ms. Crawford's legal opinion concluded that\nmeetings to discuss Board of Review policy should be treated as subject to OMA.\"15\nWith respect to the Board Majority's argument that the Board only is subject to\nOMA when it convenes as a quasi- adjudicative body to conduct particular property valuation\n\nfunctions prescribed under the Property Tax Code, OMA defines \"'[ q]uasi-adjudicative body'\" as\nan administrative body charged by law or ordinance with the responsibility to conduct hearings,\n\nreceive evidence or testimony and make determinations based thereon, but does not include local\nelectoral boards when such bodies are considering petition challenges.\"\n\n5 ILCS 120/ 2(d) (West\n\n2020), as amended by Public Acts 102-558, effective August 20, 2021; 102-237, effective\nJanuary 1, 2022. OMA permits quasi- adjudicative bodies to discuss evidence or testimony in\n\nclosed session provided they make publicly available written decisions setting forth the\ndeterminative reasoning. 5 ILCS 120/ 2(c)(4) (West 2020), as amended by Public Acts 102- 558,\n\neffective August 20, 2021; 102-237, effective January 1, 2022. OMA does not contain any other\nprovisions that address quasi- adjudicative bodies or limit the requirements of OMA for quasi-\n\n135 ILCS 120/1 (West 2020).\n14E- mail from Amy Crawford, Deputy Chief, Civil Actions Bureau, Cook County State's\n\nadjudicative bodies compared to other public bodies subject to the Act. Notably, section 2(c)(1)\nof OMA (5 ILCS 120/ 2(c)(1) (West 2020), as amended by Public Acts 102- 558, effective August\n\n20, 2021; 102-237, effective January 1, 2022) authorizes public bodies to discuss the hiring of an\nattorney in closed session, but such discussions are permissible only if the public body complies\n\nwith the statutory procedure for entering closed session16 and the other requirements of the Act.\nIt is undisputed that the Board did not comply with those requirements in connection with the\n\nMarch 10, 2021, private discussion concerning the hiring of outside counsel and other matters of\npublic business.\nLastly, this office notes that the Board's June 29, 2021, meeting agenda contained\n\nan item for an \" Amendment to Cook County Board of Review Ethics Policy.\"17 The Board\nMajority's argument about the restrictions of the Property Tax Code does not reconcile why the\n\nBoard was able to conduct that open meeting discussion if it was not authorized to hold an open\nmeeting discussion concerning the recommended policy changes outlined by the Inspector\n\nGeneral's Office.\nUnder the circumstances at issue here— all three commissioners gathering to\ndiscuss matters of public business such as hiring outside counsel and job descriptions for\n\nemployees related to the Inspector General's Office's recommended policy changes— the Public\nAccess Bureau concludes that the Board held an improper private meeting on March 10, 2021.\nThis office asks the Board to refrain from deliberating about Board policy changes and any other\n\nmatters of public business outside of a properly-noticed open meeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n2021-PAC-S-0135 o 2a meeting improper co\n165 ILCS 120/2a (West 2020).\n17 Cook County Board of Review, Agenda Item V, Motion 2, New Business, Motion 2:\nAmendment to Cook County Board of Review Ethics Policy (June 29, 2021)."}
{"id":1362,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-01-18","case_number":null,"request_numbers":["68606"],"title":"Housing Authority of DeKalb County no violation for buzzer access and brief delay at board meeting","filename":"68606, issued January 18, 2022.pdf","rel_path":null,"word_count":2266,"summary":"A requester alleged that the Housing Authority of the County of DeKalb violated the Open Meetings Act by delaying public entry to a meeting and holding it behind locked doors, but the PAC determined the meeting was reasonably accessible.","plain_summary":"This determination addresses whether the Board of Commissioners of the Housing Authority of the County of DeKalb violated OMA sections 2(a) and 2.01 by restricting public access to its November 16, 2021 meeting. The Public Access Bureau concluded there was no violation, finding the meeting was reasonably accessible even though the public had to be buzzed into a locked lobby and escorted to the meeting room, and even though members were briefly delayed before entry. The reasoning relies on Gerwin v. Livingston County Board's 'reasonable accessibility' (not 'absolute accessibility') standard, and prior PAC determinations holding that security-related buzzing/escorting procedures do not violate OMA absent evidence that public business was discussed before the public was admitted. No evidence showed the Board deliberated public business before the meeting was called to order, so no 2(a) violation was sustained either.","holding":"A public body's meeting is not rendered inaccessible under OMA sections 2(a) and 2.01 merely because the public must be buzzed into a locked area and escorted to the meeting room for security reasons, so long as no public business is discussed before the public is admitted and reasonable, not absolute, accessibility is provided.","legal_question":"Whether a public body violates the Open Meetings Act by requiring members of the public to wait briefly to enter a meeting room or by holding meetings during standard business hours behind locked office doors.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Housing Authority of the County of DeKalb","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting access","subject_description":"The requester alleged that the public body failed to provide reasonable access to a public meeting by delaying entry and utilizing a locked meeting room.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/68606, issued January 18, 2022.pdf","sha256":"074e70a9d6afa1f9e310567891f820e0b455414d6613710e314a0d4d3ce97980","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting access","public meeting","open meetings act","meeting location"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 18, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Timothy F. Horning\nMeyer & Horning, P.C.\n\n3400 North Rockton Avenue\nRockford, Illinois 61103\n\nthmeyerhorning@aol.com\nRE: OMA Request for Review – 2021 PAC 68606\nDear\n\nand Mr. Horning:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the Board of Commissioners (Board) of the Housing Authority of the\nCounty of DeKalb ( Authority) made its full November 16, 2021, meeting reasonably accessible\n\nto the public.\nIn his Request for Review, submitted November 17, 2021,\nalleged that the Board did not provide the public with sufficient access to its meeting the day\n\nbefore. He claimed that he arrived at the meeting room for the Board's November 16, 2021,\nmeeting by the start time of 2:30 p.m., but was not allowed in until five minutes later. He\n\nalleged that it appeared that a quorum of the Board was discussing public business before the\nmembers of the public in attendance ( he and his friend) were let in.\n\nalso alleged that\n\nthe meeting was not convenient and open to the public because the meeting room was behind\nlocked doors and he had to explain his reason for being there to the receptionist.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Timothy F. Horning\n\nJanuary 18, 2022\nPage 2\n\nargued that this matter is similar to a March 23, 2020, remote meeting of the Urbana City\nCouncil, providing a link to a blog post about the meeting. 1\nOn November 22, 2021, this office sent a copy of the Request for Review to the\n\nBoard and asked for a copy of the minutes (in draft form if necessary, for this office's\nconfidential review) and any recordings of the open session of its November 16, 2021, meeting.\n\nThis office also asked the Board to address in writing\n\nallegations that the Board\n\nimproperly prohibited the public from entering the meeting room while it was discussing public\n\nbusiness and held the meeting in a manner that was not convenient and open to the public. On\nDecember 2, 2021, the Board' s outside counsel provided those materials, except a recording of\n\nthe open meeting because the Board did not make one. The Board's counsel also furnished a\ndrawing of the Authority' s offices, a statement by the Authority' s receptionist concerning her\n\ninteractions with\n\nwhen he arrived for the meeting, and video footage from two\n\ncameras in the lobby of the building. On December 12, 2021,\n\nsubmitted a reply.\n\nDETERMINATION\nSection 1 of OMA ( 5 ILCS 120/ 1 et seq. ( West 2020)) provides that members of\n\nthe public have \" the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\"\nclaim that the Board improperly discussed\npublic business before he was allowed into the meeting room alleges a violation of section 2(a)\n\nof OMA (5 ILCS 120/2(a) ( West 2020), as amended by Public Act 102-558, effective August 20,\n2021), which provides that \"[ a] ll meetings of public bodies shall be open to the public unless\n\nexcepted in subsection (c) and closed in accordance with Section 2a.\" This office also construed\nRequest for Review as alleging a violation of section 2.01 of OMA ( 5 ILCS\n\n120/2.01 (West 2020)), which provides that \"[ a]ll meetings required by this Act to be public shall\nbe held at specified times and places which are convenient and open to the public.\"\nBy its plain terms, section 2.01 requires a venue that is not only ' open,' but\n\nconvenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 (4th\nDist. 2003).\n\nIn addressing the meaning of \" convenient\" for purposes of section 2.01 of OMA,\n\nthe Gerwin court stated that \"[ a] meeting can be open in the sense that no one is prohibited from\nattending it, but it can be held in such an ill-suited, unaccommodating, unadvantageous place that\n\nmembers of the public, as a practical matter, would be deterred from attending it.\" Gerwin, 345\nIll. App. 3d at 361. The court, however, construed section 2.01 as requiring \" not ' absolute\n\naccessibility' but 'reasonable accessibility.'\" Gerwin, 345 Ill. App. 3d at 362 (quoting State ex\n\n1Urbana City Council Locks Out Citizens, Violates Open Meetings Act, C-U Underground\nundated), https:// cu-underground.com/urbana-city-council-locks-out-citizens-violates-open-meetings-act/.\n\n\fMr. Timothy F. Horning\n\nJanuary 18, 2022\nPage 3\n\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408,\n418 ( Wis. 1993)).\nIn its response to this office, the Board denied the allegation that it discussed\n\npublic business before it allowed\n\ninto the meeting room, which is within the\n\nAuthority' s offices. Using video footage from the Authority' s lobby, the Board provided a\n\ntimeline of\n\narrival at the office and entrance to the meeting room. The Board\n\nasserted that it did not begin discussing public business until\n\nand the other member\n\nof the public entered the meeting room and the meeting was called to order. The Board noted\nthat\n\ndid not indicate what public business he believed the Board was discussing\n\nprior to his entry.\nThe Board also argued that the meeting was convenient and open to the public,\ndespite the public' s inability to enter the Authority' s lobby and proceed to the meeting room\n\nwithout being buzzed in and escorted. According to the Board's counsel:\nDue to the layout of the building, there are certain areas of the\noffice building that cannot for security purposes have members of\n\nthe general public present. The doors to the office area are\ntherefore locked, not for purposes of keeping the public from\nattending a board meeting, rather for purposes of providing\n\nsecurity to employees of the [Authority] and confidentiality to\nclient files contained within the office areas. Reasonable\n\naccessibility can include the public being escorted through the\noffice area to the board room for a public meeting.[ 2]\nAdditionally, addressing\n\nallegation that the receptionist improperly questioned his\n\nreason for being there, the Board's counsel asserted that the receptionist recalls simply asking\nhim how she could help him. In her statement, the receptionist described letting\n\ninto the lobby and his subsequent complaints about wanting to enter the meeting room promptly;\nthe receptionist stated that the Authority' s Operations Director, Vivian Wright, informed her that\n\nthe meeting had not yet started when Ms. Wright came to escort\n\nand the other\n\nmember of the public to the meeting room. The Board further argued that the March 23, 2020,\n\nmeeting of the Urbana City Council, which\n\nanalogized the Board's November 16,\n\n2021, meeting, is dissimilar with respect to meeting accessibility, because the issue with the\n\nUrbana meeting was the public's inability to access the remote meeting electronically.\n\n2Letter from Timothy F. Horning, Meyer and Horning P.C., to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (December 2, 2021), at 3.\n\n\fMr. Timothy F. Horning\n\nJanuary 18, 2022\nPage 4\n\nIn his reply,\n\nargued that this office should be skeptical of the Board's\n\nresponse because, he claimed, the Board has a pattern of OMA violations under the guidance of\n\nits attorney, who provided the Board's response in this matter.\n\ndisputed the\n\naccuracy of the office diagram provided by the Board, alleging that the office has a second door\n\nnot depicted. He also disputed the Board's mention of confidential files by claiming that neither\nhe nor the other member of the public who attended the meeting viewed any file cabinets while\n\nwalking to the meeting room. Additionally,\n\ndisputed the veracity of the\n\nreceptionist' s statement as to peripheral details such as his tone when he asked to access the\n\nmeeting room. He emphasized that \"[ i]t seems like it is [the Authority's] policy not to allow\nmembers to the meeting room until after the public meeting has started.\" 3 ( Emphasis omitted.)\n\nAs to any evidence that the Board held an improper discussion concerning public business before\nhe was allowed in,\n\nstated: \" We don' t know if the quorum of the public body\n\ndiscussed any public body business as there were no member[ s] of the public allowed in the\nmeeting room nor was the meeting being video taped.\" 4 Citing two binding opinions issued by\n\nthis office concerning section 2.01 of OMA, which concern a meeting held in a private\nresidence5 and a meeting held approximately 26 miles away from the public body' s regular\nmeeting location,6\nargued:\nBeing buzzed into the lobby area in another locked room.\nBeing denied access to the meeting room until after the published\nstarting time of the meeting. Being escorted to the meeting room.\n\nBeing escorted from the meeting. All of these items deter citizens\nfrom attending the meeting. Also, the time of the meeting at 2:30\n\np.m. clearly deters citizens from attending.[7]\n\n3Letter from\n\nto Joshua M. Jones, Deputy Bureau Chief, PAC (December 12, 2021),\nat 3.\n5Ill. Att'y Gen. Pub. Acc. Op. No. 12-008, issued April 4, 2012.\n6Ill. Att'y Gen. Pub. Acc. Op. No. 13-014, issued September 5, 2013.\n7Letter from\nat 5.\n\nto Joshua M. Jones, Deputy Bureau Chief, PAC (December 12, 2021),\n\n\fMr. Timothy F. Horning\n\nJanuary 18, 2022\nPage 5\n\ndid not raise the allegation concerning the meeting time in his Request for Review,\ntherefore it is outside the scope of this matter. 8\nHaving carefully reviewed and considered all of the information submitted by the\n\nparties, the facts presented do not sustain the allegation that the Board violated OMA in\nconnection with its November 16, 2021, meeting. The Board' s attorney confirmed that the Board\n\ndid not begin discussing public business until the public entered the meeting room and the\nmeeting was called to order. This office received no information undermining that assertion. It\n\nis immaterial that members of the Board were seated in the meeting room before the public was\nallowed in, as no provision of OMA prohibits that practice absent improper deliberation about\n\npublic business during that time. Members of the public body may appropriately make small talk\nand compose themselves for the meeting. Similarly, OMA does not prohibit a public body from\n\nwaiting to usher the public into the meeting room until it is ready to call the meeting to order.\nOMA did not require the Board to welcome the public into the meeting room at the exact time\n\nlisted on the agenda given that the Board had yet to begin the meeting.\nMoreover, the Public Access Bureau has previously determined that a public body\ndoes not violate OMA by holding public meetings within its offices even if the public must be\n\nbuzzed in and escorted to and from the meeting room. See e.g., Ill. Att'y Gen. PAC Req. Rev.\nLtr. 17711, issued March 27, 2012, at 3 (meeting not inaccessible to members of the public\nbecause they had to ask receptionist to grant them access to a locked area of police station and be\n\nescorted to the meeting).\n\nset forth no facts suggesting that the Board misused\n\nstandard security procedures to prevent reasonable access to the meeting. No right of access was\n\nrestricted when the receptionist asked\n\nif she could help him or his reason for\n\nwanting to enter the Authority' s offices and then buzzed him in upon confirmation that he was\n\nthere for an open meeting. Further, regardless of whether\n\nviewed file cabinets on\n\nhis way to the meeting room, a public body is not obligated to let the public roam freely with\n\nunfettered access to all of its offices and files in order to host an open meeting. Rather, a public\nbody may properly guide the public to and from the meeting room to uphold the purpose of\n\naccessing the meeting while maintaining appropriate security and confidentiality. In addition,\nthe Urbana meeting\n\ncited is inapposite because\n\nattended the Board' s\n\nfull, in-person meeting, unlike the Urbana meeting where members of the public had difficulty\naccessing the remote meeting remotely and a member of the public was barred from entering the\n\nbuilding because the public body was not meeting in person. Under these circumstances, the\nBoard made the meeting reasonably accessible.\n\n8In addition, the Public Access Bureau has consistently determined that a public body does not\nviolate OMA by holding a meeting during the workday. See e.g., Ill. Att'y Gen. Req. Rev. Ltrs. 41771 and 41807,\nissued June 30, 2016, at 5 (\"A public meeting held during regular business hours is not inherently inconvenient to\nthe public[.]\").\n\n\fMr. Timothy F. Horning\n\nJanuary 18, 2022\nPage 6\n\nFor the reasons set out above, this office concludes that the Board did not violate\nOMA in connection with its November 16, 2021, meeting.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\njoshua. jones@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n68606 o 2a meeting proper 201 location proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A housing authority's locked meeting room and delayed entry","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68606/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 18, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Timothy F. Horning\nMeyer & Horning, P.C.\n\n3400 North Rockton Avenue\nRockford, Illinois 61103\n\nthmeyerhorning@aol.com\nRE: OMA Request for Review – 2021 PAC 68606\nDear\n\nand Mr. Horning:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the Board of Commissioners (Board) of the Housing Authority of the\nCounty of DeKalb (Authority) made its full November 16, 2021, meeting reasonably accessible\n\nto the public.\nIn his Request for Review, submitted November 17, 2021,\nalleged that the Board did not provide the public with sufficient access to its meeting the day\n\nbefore. He claimed that he arrived at the meeting room for the Board's November 16, 2021,\nmeeting by the start time of 2:30 p.m., but was not allowed in until five minutes later. He\n\nalleged that it appeared that a quorum of the Board was discussing public business before the\nmembers of the public in attendance (he and his friend) were let in.\n\nalso alleged that\n\nthe meeting was not convenient and open to the public because the meeting room was behind\nlocked doors and he had to explain his reason for being there to the receptionist.\n\nargued that this matter is similar to a March 23, 2020, remote meeting of the Urbana City\nCouncil, providing a link to a blog post about the meeting. 1\nOn November 22, 2021, this office sent a copy of the Request for Review to the\n\nBoard and asked for a copy of the minutes (in draft form if necessary, for this office's\nconfidential review) and any recordings of the open session of its November 16, 2021, meeting.\n\nThis office also asked the Board to address in writing\n\nallegations that the Board\n\nimproperly prohibited the public from entering the meeting room while it was discussing public\n\nbusiness and held the meeting in a manner that was not convenient and open to the public. On\nDecember 2, 2021, the Board's outside counsel provided those materials, except a recording of\n\nthe open meeting because the Board did not make one. The Board's counsel also furnished a\ndrawing of the Authority's offices, a statement by the Authority's receptionist concerning her\n\ninteractions with\n\nwhen he arrived for the meeting, and video footage from two\n\ncameras in the lobby of the building. On December 12, 2021,\n\nsubmitted a reply.\n\nDETERMINATION\nSection 1 of OMA (5 ILCS 120/ 1 et seq. (West 2020)) provides that members of\n\nthe public have \" the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\"\nclaim that the Board improperly discussed\npublic business before he was allowed into the meeting room alleges a violation of section 2(a)\n\nof OMA (5 ILCS 120/2(a) (West 2020), as amended by Public Act 102-558, effective August 20,\n2021), which provides that \"[ a] ll meetings of public bodies shall be open to the public unless\n\nexcepted in subsection (c) and closed in accordance with Section 2a.\" This office also construed\nRequest for Review as alleging a violation of section 2.01 of OMA (5 ILCS\n\n120/2.01 (West 2020)), which provides that \"[ a]ll meetings required by this Act to be public shall\nbe held at specified times and places which are convenient and open to the public.\"\nBy its plain terms, section 2.01 requires a venue that is not only ' open,' but\n\nconvenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 (4th\nDist. 2003).\n\nIn addressing the meaning of \" convenient\" for purposes of section 2.01 of OMA,\n\nthe Gerwin court stated that \"[ a] meeting can be open in the sense that no one is prohibited from\nattending it, but it can be held in such an ill-suited, unaccommodating, unadvantageous place that\n\nmembers of the public, as a practical matter, would be deterred from attending it.\" Gerwin, 345\nIll. App. 3d at 361. The court, however, construed section 2.01 as requiring \" not ' absolute\n\naccessibility' but 'reasonable accessibility.'\" Gerwin, 345 Ill. App. 3d at 362 (quoting State ex\n\n1 Urbana City Council Locks Out Citizens, Violates Open Meetings Act, C-U Underground\nundated), https:// cu-underground.com/urbana-city-council-locks-out-citizens-violates-open-meetings-act/.\n\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408,\n418 (Wis. 1993)).\nIn its response to this office, the Board denied the allegation that it discussed\n\npublic business before it allowed\n\ninto the meeting room, which is within the\n\nAuthority's offices. Using video footage from the Authority's lobby, the Board provided a\n\ntimeline of\n\narrival at the office and entrance to the meeting room. The Board\n\nasserted that it did not begin discussing public business until\n\nand the other member\n\nof the public entered the meeting room and the meeting was called to order. The Board noted\nthat\n\ndid not indicate what public business he believed the Board was discussing\n\nprior to his entry.\nThe Board also argued that the meeting was convenient and open to the public,\ndespite the public's inability to enter the Authority's lobby and proceed to the meeting room\n\nwithout being buzzed in and escorted. According to the Board's counsel:\nDue to the layout of the building, there are certain areas of the\noffice building that cannot for security purposes have members of\n\nthe general public present. The doors to the office area are\ntherefore locked, not for purposes of keeping the public from\nattending a board meeting, rather for purposes of providing\n\nsecurity to employees of the [Authority] and confidentiality to\nclient files contained within the office areas. Reasonable\n\naccessibility can include the public being escorted through the\noffice area to the board room for a public meeting.[ 2]\nAdditionally, addressing\n\nallegation that the receptionist improperly questioned his\n\nreason for being there, the Board's counsel asserted that the receptionist recalls simply asking\nhim how she could help him. In her statement, the receptionist described letting\n\ninto the lobby and his subsequent complaints about wanting to enter the meeting room promptly;\nthe receptionist stated that the Authority's Operations Director, Vivian Wright, informed her that\n\nthe meeting had not yet started when Ms. Wright came to escort\n\nand the other\n\nmember of the public to the meeting room. The Board further argued that the March 23, 2020,\n\nmeeting of the Urbana City Council, which\n\nanalogized the Board's November 16,\n\n2021, meeting, is dissimilar with respect to meeting accessibility, because the issue with the\n\nUrbana meeting was the public's inability to access the remote meeting electronically.\n\n2 Letter from Timothy F. Horning, Meyer and Horning P.C., to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (December 2, 2021), at 3.\n\nIn his reply,\n\nargued that this office should be skeptical of the Board's\n\nresponse because, he claimed, the Board has a pattern of OMA violations under the guidance of\n\nits attorney, who provided the Board's response in this matter.\n\ndisputed the\n\naccuracy of the office diagram provided by the Board, alleging that the office has a second door\n\nnot depicted. He also disputed the Board's mention of confidential files by claiming that neither\nhe nor the other member of the public who attended the meeting viewed any file cabinets while\n\nwalking to the meeting room. Additionally,\n\ndisputed the veracity of the\n\nreceptionist's statement as to peripheral details such as his tone when he asked to access the\n\nmeeting room. He emphasized that \"[ i]t seems like it is [the Authority's] policy not to allow\nmembers to the meeting room until after the public meeting has started.\" 3 (Emphasis omitted.)\n\nAs to any evidence that the Board held an improper discussion concerning public business before\nhe was allowed in,\n\nstated: \" We don' t know if the quorum of the public body\n\ndiscussed any public body business as there were no member[ s] of the public allowed in the\nmeeting room nor was the meeting being video taped.\" 4 Citing two binding opinions issued by\n\nthis office concerning section 2.01 of OMA, which concern a meeting held in a private\nresidence5 and a meeting held approximately 26 miles away from the public body's regular\nmeeting location,6\nargued:\nBeing buzzed into the lobby area in another locked room.\nBeing denied access to the meeting room until after the published\nstarting time of the meeting. Being escorted to the meeting room.\n\nBeing escorted from the meeting. All of these items deter citizens\nfrom attending the meeting. Also, the time of the meeting at 2:30\n\np.m. clearly deters citizens from attending.[7]\n\n3 Letter from\n\nto Joshua M. Jones, Deputy Bureau Chief, PAC (December 12, 2021),\nat 3.\n\ndid not raise the allegation concerning the meeting time in his Request for Review,\ntherefore it is outside the scope of this matter. 8\nHaving carefully reviewed and considered all of the information submitted by the\n\nparties, the facts presented do not sustain the allegation that the Board violated OMA in\nconnection with its November 16, 2021, meeting. The Board's attorney confirmed that the Board\n\ndid not begin discussing public business until the public entered the meeting room and the\nmeeting was called to order. This office received no information undermining that assertion. It\n\nis immaterial that members of the Board were seated in the meeting room before the public was\nallowed in, as no provision of OMA prohibits that practice absent improper deliberation about\n\npublic business during that time. Members of the public body may appropriately make small talk\nand compose themselves for the meeting. Similarly, OMA does not prohibit a public body from\n\nwaiting to usher the public into the meeting room until it is ready to call the meeting to order.\nOMA did not require the Board to welcome the public into the meeting room at the exact time\n\nlisted on the agenda given that the Board had yet to begin the meeting.\nMoreover, the Public Access Bureau has previously determined that a public body\ndoes not violate OMA by holding public meetings within its offices even if the public must be\n\nbuzzed in and escorted to and from the meeting room. See e.g., Ill. Att'y Gen. PAC Req. Rev.\nLtr. 17711, issued March 27, 2012, at 3 (meeting not inaccessible to members of the public\nbecause they had to ask receptionist to grant them access to a locked area of police station and be\n\nescorted to the meeting).\n\nset forth no facts suggesting that the Board misused\n\nstandard security procedures to prevent reasonable access to the meeting. No right of access was\n\nrestricted when the receptionist asked\n\nif she could help him or his reason for\n\nwanting to enter the Authority's offices and then buzzed him in upon confirmation that he was\n\nthere for an open meeting. Further, regardless of whether\n\nviewed file cabinets on\n\nhis way to the meeting room, a public body is not obligated to let the public roam freely with\n\nunfettered access to all of its offices and files in order to host an open meeting. Rather, a public\nbody may properly guide the public to and from the meeting room to uphold the purpose of\n\naccessing the meeting while maintaining appropriate security and confidentiality. In addition,\nthe Urbana meeting\n\ncited is inapposite because\n\nattended the Board's\n\nfull, in-person meeting, unlike the Urbana meeting where members of the public had difficulty\naccessing the remote meeting remotely and a member of the public was barred from entering the\n\nbuilding because the public body was not meeting in person. Under these circumstances, the\nBoard made the meeting reasonably accessible.\n\n8 In addition, the Public Access Bureau has consistently determined that a public body does not\nviolate OMA by holding a meeting during the workday. See e.g., Ill. Att'y Gen. Req. Rev. Ltrs. 41771 and 41807,\nissued June 30, 2016, at 5 (\"A public meeting held during regular business hours is not inherently inconvenient to\n\nFor the reasons set out above, this office concludes that the Board did not violate\nOMA in connection with its November 16, 2021, meeting.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\njoshua. jones@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n68606 o 2a meeting proper 201 location proper co"}
{"id":1363,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-06-03","case_number":null,"request_numbers":["69094"],"title":"Elmhurst Park District violated OMA by discussing property sale in closed session","filename":"69094, issued June 3, 2022.pdf","rel_path":null,"word_count":1643,"summary":"Mr. Pal alleged that the Elmhurst Park District Board improperly discussed the sale of District property during a closed session meeting held on August 12, 2019. The PAC determined that the Board's discussion was permissible under the Open Meetings Act.","plain_summary":"A citizen alleged that a park district board discussed the sale of one park district property during a closed session that had been authorized only to discuss the purchase of a different property. The PAC determined that discussing whether to sell a separate property to help fund an unrelated purchase went beyond the closed-session exception for purchasing or leasing property, and did not fall within the narrower exception for setting a sale price either. The PAC concluded the board violated the Open Meetings Act by discussing the sale in closed session.","holding":"The PAC determined that the Elmhurst Park District Board violated the Open Meetings Act by discussing the sale of the Abbey property in closed session, as that discussion was not authorized by any exception to the Act.","legal_question":"Whether the Elmhurst Park District Board violated the Open Meetings Act by discussing the sale of property during a closed session meeting held under the exception for the purchase or lease of real property.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(5)","5 ILCS 120/2(c)(6)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)","5 ILCS 120/2(c)(6)"],"public_body":"Elmhurst Park District","requesting_party":"Mr. Edgar Pal","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board discussed the sale of property and lease agreements during a closed session meeting.","ocr_status":"ok","ocr_quality":97.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_5/69094, issued June 3, 2022.pdf","sha256":"418d3b85f7694880eba3408b6b188605dc707cf036c317b847cf81dfb50c16c5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","park district","real estate","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 3, 2022\n\nVia electronic mail\nMr. Edgar Pal\n\n[street address redacted for site publication -- see original PDF]\nEpa1183@gmail. com\nVia electronic mail\nThe Honorable Vince Spaeth\nPresident\n\nBoard of Park Commissioners\nElmhurst Park District\n375 West First Street\nElmhurst, Illinois 60126\n\nvspaeth@epd. org\nRE:\n\nOMA Request for Review — 2021 PAC 69094/2021 PAC C- 00341\n\nDear Mr. Pal and Mr. Spaeth:\n\nThis determination letter is issued pursuant to section 3. 5( e) of the Open Meetings\nAct ( OMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2020)).\n\nOn May 20, 2021, Mr. Pal submitted the above -captioned Request for Review\nalleging that during the Board' s August 12, 2019, closed session meeting, it improperly discussed\nmatters\n\nbeyond\n\nthe scope\n\nof section 2( c)( 5) of OMA ( 5 ILCS 120/ 2( c)( 5) ( West 2020)), which\n\nthe Board cited as the basis for entering the closed session. Specifically, Mr. Pal alleged that the\nBoard discussed matters relating to the sale of a property owned by the District rather than the\n\nBecause of the breach to the Attorney General' s Office' s computer network, this office initially\nopened this Request for Review under a temporary file number. Please note the permanent file number as indicated.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph\n601 South\n\nUniversity\n\nStreet, Chicago,\nAve., Carbondale,\n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fr.\nEdgar Pal\nThe Honorable Vincent Spaeth\nJune 3, 2022\nPage 2\n\npurchase or lease of real property\n\nfor the\n\nuse\n\nof the District,\" which is the subject matter\n\nauthorized by section 2( c)( 5) of OMA. 2\nOn May 26, 2021, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond to Mr. Pal' s allegations and to provide copies of the minutes and\nthe verbatim recording of the closed session in question. On June 7, 2021, the Board provided\nthis office with a written response and copies of relevant meeting minutes. On June 8, 2021, this\n\noffice sent a copy of the Board' s response to Mr. Pal with an opportunity to reply; he did not\nreply.\n\nDETERMINATION\n\nTime Limits for Requests for Review\nSection\n\n3. 5( a) of OMA ( 5 ILCS\n\n120/ 3. 5( a) ( West 2020))\n\nprovides, in pertinent\n\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\n\nGeneral not later 60 days after the alleged OMA violation. If\n\nfacts concerning the violation are not discovered within the 60day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\n\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (\n\nEmphasis added.)\n\nIn his Request for Review, which was postmarked on May 2, 2021, Mr. Pal asks\nthat this office review the discussions held at an August 12, 2019, closed session meeting.\n\nAlthough this meeting was held more than 60 days before Mr. Pal submitted his Request for\nReview, because the alleged violations occurred during closed session, it does not appear that\nMr. Pal could have learned material facts concerning the alleged violations until the District\nvoted to release\n\nthe\n\nmeeting minutes\n\nfrom that closed\n\nsession\n\non\n\nApril 12, 2021.\n\nMr. Pal\n\n2Letter from Edgar Pal to Sarah Pratt, Public Access Counselor, Office of the Attorney General,\nMay\n\n2, 2021)\n\nat\n\n1.\n\n\fr.Edgar Pal\nThe Honorable Vincent Spaeth\nJune 3, 2022\nPage 3\n\nsubmitted this Request for Review to this office within 60 days after the discovery of facts\n\nconcerning the alleged violations, and less than two years after the alleged violations.\n\nAccordingly, this Request for Review was filed within the time limits set out in section 3. 5( a) of\nOMA, and this office has authority to review Mr. Pal' s allegations concerning the August 12,\n2019, meeting.\nClosed\n\nSession\n\nDiscussions\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\ndeliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2020). Section 2( a) of OMA\n5 ILCS 120/ 2( a) ( West 2020)) provides that all meetings of a public body shall be open to the\n\nthat their\n\npublic unless the subject of the meeting falls within one of the exceptions set out in section 2( c)\nof OMA.\n\nIn its response to this office, the Board' s explained that at the closed session of the\n\nAugust 12, 2019, meeting, it discussed the District' s potential purchase of real estate located at\n123 East St. Charles, Road, commonly referred to as the Redeemer Lutheran Church Center\nRedeemer property). The Board entered closed session pursuant to section 2( c)( 5) of OMA,\nwhich permits closed session discussion of:\n\nThe purchase or lease of real property for the use of the\npublic body, including meetings held for the purpose of discussing\n5)\n\nwhether a particular parcel should be acquired.\n\nIn Galena Gazette Publications Inc., v. County ofJo Daviess, 375 Ill. App. 3d 338\n2d Dist. 2007), the Illinois Appellate Court considered a closed session meeting held to discuss\n\nthe possibility of leasing a specific property for its use. There, the plaintiff conceded that the\npublic body could permissibly discuss the material terms of the lease in closed session, but\nargued that the scope of section 2( c)( 5) did not extend to \" peripheral matters\" that were raised,\nsuch as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at\n344. The court disagreed, finding that nothing in the language of section 2( c)( 5) distinguishes\nmaterial\" matters from peripheral ones. Galena Gazette, 375 Ill. App. 3d at 344. Specifically,\nthe court noted that one of the topics the public body discussed was the racking of promotional\nbrochures within the leased property, and concluded:\n\nEven when participants discussed the racking of promotional\nbrochures\n\nat the\n\nOld Train Depot — past, present,\n\nor\n\nfuture — they\n\ndid so only because it was pertinent to the terms, effects, or\n\ndesirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature\n\n\f\fr.\nEdgar Pal\nThe Honorable Vincent Spaeth\nJune 3, 2022\nPage 5\n\nnot be divorced from the remainder of the discussion regarding the\nBoard] s decision on whether to finalize its agreement to purchase\n\nthe Redeemer property without the potential for jeopardizing the\nDistrict's] negotiating position. So before committing to the\npurchase of the Redeemer property, the [ Board] briefly discussed a\nwillingness to sell the Abbey and reached an informal consensus to\nmove forward with the concept. l41\n\nThe Board was unable to furnish a copy of the verbatim recording of the August\n12, 2019, meeting for this office' s review, as the Board destroyed the recording prior to this\noffice requesting a copy. The Board explained that it voted on April 12, 2021, to approve the\nrelease of the minutes of the August 12, 2019, closed session meeting and to approve the\n\ndestruction of the verbatim recording of that meeting, along with several other meeting\nrecordings. 5\n\nThe August 12, 2019, closed session meeting minutes indicate that the sale of the\n\nAbbey was discussed in the context of how the District would pay for the purchase of the\nRedeemer\n\nproperty: \"\n\nbe acquired,\n\nAs a component of the determination whether the Redeemer parcel should\n\nBoard provided\n\nthe\n\nconsensus\n\nto\n\nsell the property known\n\nas\n\nThe Abbey[.] i6\n\nAs\n\nexplained by the Galena Gazette court, section 2( c)( 5) of OMA permits closed session\ndiscussion of deliberations concerning whether to purchase or lease a property along with related\ndetails necessary to put the purchase or lease terms in context. However, the peripheral matter\ndiscussed in Galena Gazette — authority over the racking of promotional\nproperty\n\nthat was the subject\n\nmaterials on the\n\nof a proposed lease agreement — is readily distinguishable from a\n\ndiscussion of whether to sell one property to help fund the purchase of another property. The\narrangement for the racking of promotional materials was part of the lease agreement under\nconsideration,\n\nnot a separate but related agreement.\n\n2( c)( 6) of OMA,\n\n7\n\nIn addition, another exception, section\n\npertains to property sales and only permits closed session discussions of \"[t]he\n\nsetting of a price for sale\n\nor\n\nlease of property owned\n\nby the public body.\"\n\nThe narrow scope of\n\nsection 2( c)( 6) indicates that the General Assembly intended for public bodies to openly discuss\nLetter from Andrew S. Paine to Grace Angelos, Assistant Attorney General, Public Access\nBureau ( June 7, 2021) at 3.\n\nSection 2. 06( c) of OMA ( 5 ILCS 120/ 2. 06( c) ( West 2020)) permits a public body to destroy the\n\nverbatim record of a meeting \" no less than 18 months after the completion of the meeting recorded but only after:\n1) the public body approves the destruction of a particular recording; and ( 2) the public body approves minutes of\nthe closed meeting that meet the written minutes requirements of subsection ( a) of this Section.\"\n6Elmhurst Park District Board of Commissioners, Closed Session, August 12, 2019, Minutes 1.\nS ILCS\n\n120/ 2( c)( 6) ( West 2020).\n\n\f\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that the Elmhurst Park District Board discussed selling a property (the Abbey) during a closed session meeting that was only authorized for discussing the purchase or lease of another property (the Redeemer property). The Illinois Attorney General's Public Access Counselor reviewed the meeting minutes and determined that the Board's discussion of selling the Abbey was not permitted under the cited exception (section 2(c)(5) of the Open Meetings Act) or any other exception. The PAC found that the Board violated the Open Meetings Act by discussing the sale of the Abbey in closed session.","card_headline":"Closed-session discussion of a property sale","full_text_pre_backfill":null,"disposition_pre_fix":"no_violation","human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69094/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nOF ILLINOIS\n\nWAME RAOUL\nATTORNEY\n\nGENERAL\n\nJune 3, 2022\n\nVia electronic mail\nMr. Edgar Pal\n\n[street address redacted for site publication -- see original PDF]\nEpa1183@gmail. com\nVia electronic mail\nThe Honorable Vince Spaeth\nPresident\n\nBoard of Park Commissioners\nElmhurst Park District\n375 West First Street\nElmhurst, Illinois 60126\n\nvspaeth@epd. org\nRE:\n\nOMA Request for Review — 2021 PAC 69094/2021 PAC C- 00341\n\nDear Mr. Pal and Mr. Spaeth:\n\nThis determination letter is issued pursuant to section 3. 5(e) of the Open Meetings\nAct (OMA) (5 ILCS\n\n120/ 3. 5(e) (West 2020)).\n\nOn May 20, 2021, Mr. Pal submitted the above -captioned Request for Review\nalleging that during the Board's August 12, 2019, closed session meeting, it improperly discussed\nmatters\n\nbeyond\n\nthe scope\n\nof section 2(c)(5) of OMA (5 ILCS 120/ 2(c)(5) (West 2020)), which\n\nthe Board cited as the basis for entering the closed session. Specifically, Mr. Pal alleged that the\nBoard discussed matters relating to the sale of a property owned by the District rather than the\n\nBecause of the breach to the Attorney General's Office's computer network, this office initially\nopened this Request for Review under a temporary file number. Please note the permanent file number as indicated.\n\npurchase or lease of real property\n\nfor the\n\nuse\n\nof the District,\" which is the subject matter\n\nauthorized by section 2(c)(5) of OMA. 2\nOn May 26, 2021, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond to Mr. Pal's allegations and to provide copies of the minutes and\nthe verbatim recording of the closed session in question. On June 7, 2021, the Board provided\nthis office with a written response and copies of relevant meeting minutes. On June 8, 2021, this\n\noffice sent a copy of the Board's response to Mr. Pal with an opportunity to reply; he did not\nreply.\n\nDETERMINATION\n\nTime Limits for Requests for Review\nSection\n\n3. 5(a) of OMA (5 ILCS\n\n120/ 3. 5(a) (West 2020))\n\nprovides, in pertinent\n\npart:\n\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\n\nGeneral not later 60 days after the alleged OMA violation. If\n\nfacts concerning the violation are not discovered within the 60day period, but are discovered at a later date, not exceeding 2\nyears after the alleged violation, by a person utilizing\nreasonable diligence, the request for review may be made\n\nwithin 60 days of the discovery of the alleged violation. The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\n\nIn his Request for Review, which was postmarked on May 2, 2021, Mr. Pal asks\nthat this office review the discussions held at an August 12, 2019, closed session meeting.\n\nAlthough this meeting was held more than 60 days before Mr. Pal submitted his Request for\nReview, because the alleged violations occurred during closed session, it does not appear that\nMr. Pal could have learned material facts concerning the alleged violations until the District\nvoted to release\n\nthe\n\nmeeting minutes\n\nfrom that closed\n\nsession\n\non\n\nApril 12, 2021.\n\nMr. Pal\n\n2 Letter from Edgar Pal to Sarah Pratt, Public Access Counselor, Office of the Attorney General,\n\nsubmitted this Request for Review to this office within 60 days after the discovery of facts\n\nconcerning the alleged violations, and less than two years after the alleged violations.\n\nAccordingly, this Request for Review was filed within the time limits set out in section 3. 5(a) of\nOMA, and this office has authority to review Mr. Pal's allegations concerning the August 12,\n2019, meeting.\nClosed\n\nSession\n\nDiscussions\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\ndeliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Section 2(a) of OMA\n5 ILCS 120/ 2(a) (West 2020)) provides that all meetings of a public body shall be open to the\n\nthat their\n\npublic unless the subject of the meeting falls within one of the exceptions set out in section 2(c)\nof OMA.\n\nIn its response to this office, the Board's explained that at the closed session of the\n\nAugust 12, 2019, meeting, it discussed the District's potential purchase of real estate located at\n123 East St. Charles, Road, commonly referred to as the Redeemer Lutheran Church Center\nRedeemer property). The Board entered closed session pursuant to section 2(c)(5) of OMA,\nwhich permits closed session discussion of:\n\nThe purchase or lease of real property for the use of the\npublic body, including meetings held for the purpose of discussing\n5)\n\nwhether a particular parcel should be acquired.\n\nIn Galena Gazette Publications Inc., v. County ofJo Daviess, 375 Ill. App. 3d 338\n2d Dist. 2007), the Illinois Appellate Court considered a closed session meeting held to discuss\n\nthe possibility of leasing a specific property for its use. There, the plaintiff conceded that the\npublic body could permissibly discuss the material terms of the lease in closed session, but\nargued that the scope of section 2(c)(5) did not extend to \" peripheral matters\" that were raised,\nsuch as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at\n344. The court disagreed, finding that nothing in the language of section 2(c)(5) distinguishes\nmaterial\" matters from peripheral ones. Galena Gazette, 375 Ill. App. 3d at 344. Specifically,\nthe court noted that one of the topics the public body discussed was the racking of promotional\nbrochures within the leased property, and concluded:\n\nEven when participants discussed the racking of promotional\nbrochures\n\nat the\n\nOld Train Depot — past, present,\n\nor\n\nfuture — they\n\nnot be divorced from the remainder of the discussion regarding the\nBoard] s decision on whether to finalize its agreement to purchase\n\nthe Redeemer property without the potential for jeopardizing the\nDistrict's] negotiating position. So before committing to the\npurchase of the Redeemer property, the [ Board] briefly discussed a\nwillingness to sell the Abbey and reached an informal consensus to\nmove forward with the concept. l41\n\nThe Board was unable to furnish a copy of the verbatim recording of the August\n12, 2019, meeting for this office's review, as the Board destroyed the recording prior to this\noffice requesting a copy. The Board explained that it voted on April 12, 2021, to approve the\nrelease of the minutes of the August 12, 2019, closed session meeting and to approve the\n\ndestruction of the verbatim recording of that meeting, along with several other meeting\nrecordings. 5\n\nThe August 12, 2019, closed session meeting minutes indicate that the sale of the\n\nAbbey was discussed in the context of how the District would pay for the purchase of the\nRedeemer\n\nproperty: \"\n\nbe acquired,\n\nAs a component of the determination whether the Redeemer parcel should\n\nBoard provided\n\nthe\n\nconsensus\n\nto\n\nsell the property known\n\nas\n\nThe Abbey[.] i6\n\nAs\n\nexplained by the Galena Gazette court, section 2(c)(5) of OMA permits closed session\ndiscussion of deliberations concerning whether to purchase or lease a property along with related\ndetails necessary to put the purchase or lease terms in context. However, the peripheral matter\ndiscussed in Galena Gazette — authority over the racking of promotional\nproperty\n\nthat was the subject\n\nmaterials on the\n\nof a proposed lease agreement — is readily distinguishable from a\n\ndiscussion of whether to sell one property to help fund the purchase of another property. The\narrangement for the racking of promotional materials was part of the lease agreement under\nconsideration,\n\nnot a separate but related agreement.\n\n2(c)(6) of OMA,\n\n7\n\nIn addition, another exception, section\n\npertains to property sales and only permits closed session discussions of \"[t]he\n\nsetting of a price for sale\n\nor\n\nlease of property owned\n\nby the public body.\"\n\nThe narrow scope of\n\nsection 2(c)(6) indicates that the General Assembly intended for public bodies to openly discuss\nLetter from Andrew S. Paine to Grace Angelos, Assistant Attorney General, Public Access\nBureau (June 7, 2021) at 3.\n\nSection 2. 06(c) of OMA (5 ILCS 120/ 2. 06(c) (West 2020)) permits a public body to destroy the\n\nverbatim record of a meeting \" no less than 18 months after the completion of the meeting recorded but only after:\n1) the public body approves the destruction of a particular recording; and (2) the public body approves minutes of\nthe closed meeting that meet the written minutes requirements of subsection (a) of this Section.\"\n6 Elmhurst Park District Board of Commissioners, Closed Session, August 12, 2019, Minutes 1.\nS ILCS\n\n120/ 2(c)(6) (West 2020)."}
{"id":1364,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-16","case_number":null,"request_numbers":["69228"],"title":"City of Evanston Public Safety Civil Service Commission violated OMA by failing to keep closed session minutes and provide remote meeting notice","filename":"69228, issued March 16, 2022.pdf","rel_path":null,"word_count":2049,"summary":"The requester alleged that the City of Evanston Public Safety Civil Service Commission failed to follow OMA requirements for remote meetings and failed to maintain minutes for closed sessions. The PAC determined the Commission violated OMA by failing to properly document closed session minutes and failing to comply with remote meeting notice requirements.","plain_summary":"A citizen complained that a city commission held a remote meeting without proper public notice and failed to keep required written records of their closed-door meetings. The Attorney General's office agreed, finding that the commission broke the law by not keeping minutes for closed sessions and by failing to provide the public with necessary information to access their remote meeting. The commission was asked to start keeping proper minutes for all future closed sessions.","holding":"The City of Evanston Public Safety Civil Service Commission violated the Open Meetings Act by failing to keep minutes of closed sessions and failing to adhere to remote meeting notice requirements.","legal_question":"Whether the Commission violated OMA by failing to provide proper notice for a remote meeting under section 7(e) and failing to keep minutes of closed sessions as required by section 2.06(a).","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06","5 ILCS 120/7(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Evanston Public Safety Civil Service Commission","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The matter concerns the procedural requirements for conducting remote public meetings and the mandatory obligation to maintain minutes for closed session meetings.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_e/69228, issued March 16, 2022.pdf","sha256":"4993556baaf04428d55c5d075db92ada762c0f906c3a7d2bee5ef23116ab2fa8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting minutes","remote meeting","public notice"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 16, 2022\n\nVia electronic mail\n\nVia electronic mail\nMs. Alexandra B. Ruggie\nAssistant City Attorney\nLaw Department\nCity of Evanston\n2100 Ridge Avenue\nEvanston, Illinois 60201\naruggie@cityofevanston. org\nRE: OMA Request for Review – 2022 PAC 69228\nDear\n\nand Ms. Ruggie:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the City of Evanston Public Safety Civil Service Commission\nCommission) violated OMA in connection with its November 11, 2021, meeting.\nBACKGROUND\nIn a Request for Review received by this office on January 3, 2022,\nalleged that the head of the Commission did not make a determination that an inperson open meeting on November 11, 2021, was not practical or prudent, as required by section\n7(e)( 2) of OMA (5 ILCS 120/ 7(e)( 2) (West 2020)) and that the meeting agenda did not provide\nnotice of the alternative meeting arrangements in a manner to allow any interested member of the\npublic access, such as by offering a telephone number or a web- based link, as required by section\n7(e)( 4) of OMA (5 ILCS 120/ 7(e)( 4) (West 2020)). Further,\nalleged that the\nminutes for the Commission' s November 11, 2021, meeting did not reflect the votes of each\nCommission member on the question of holding a meeting closed to the public or citations to the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMs. Alexandra B. Ruggie\nMarch 16, 2022\nPage 2\n\nspecific exception( s) contained in section 2 of OMA (5 ILCS 120/ 2 (West 2020)) authorizing the\nclosing of that meeting, in violation of section 2a of OMA ( 5 ILCS 120/ 2a ( West 2020)).\nOn January 7, 2022, this office sent a copy of the Request for Review to legal\ncounsel for the Commission and requested that it provide a written response to\nallegations concerning the November 11, 2021, meeting. This office also\nrequested copies of the November 11, 2021, meeting agenda, open and closed session minutes,\nand verbatim recording of the open session. On January 27, 2022, City of Evanston legal\ncounsel provided a written response on behalf of the Commission and the meeting agenda and\nminutes. On January 31, 2022, this office forwarded the Commission' s written response to\nhe replied on February 7, 2022. On February 22, 2022, the Commission provided\nthis office with recordings of the open and closed sessions of the November 11, 2021, meeting,\nand stated that there were no closed session minutes.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nRemote Meeting Procedures\nSection 7(e) of OMA permits public bodies to conduct meetings remotely when\nthe Governor or the Director of the Illinois Department of Public Health has issued a disaster\ndeclaration related to public health concerns, as long as certain conditions are met. 1 Section\n7(e)( 2) of OMA states:\ne) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or video\nconference, without the physical presence of a quorum of the\nmembers, so long as the following conditions are met:\n\n1Gubernatorial Disaster Proclamation issued October 15, 2022 was in effect at the time of the\nNovember 11, 2021, meeting.\n\n\fMs. Alexandra B. Ruggie\nMarch 16, 2022\nPage 3\n\n2) the head of the public body as defined in subsection ( e)\nof Section 2 of the Freedom of Information Act determines\nthat an in-person meeting or a meeting conducted under\nthis Act is not practical or prudent because of a disaster[.]\nThe Commission' s response to this office confirmed that the Commission\nconducted its November 11, 2021, meeting remotely. The Commission stated that there was no\nindication that the head of the Commission made a determination that an in-person meeting was\nnot practical or prudent. Therefore, this office concludes that the Commission violated section\n7(e)( 2) of OMA.\nalso alleged that the Commission did not include a link on the\nmeeting agenda to permit members of the public to access its virtual meeting. Section 7(e)( 4) of\nOMA contains specific notice requirements that a public body must meet to conduct a remote\nmeeting pursuant to section 7(e), as follows:\n4) for open meetings, members of the public present at the regular\nmeeting location of the body can hear all discussion and testimony\nand all votes of the members of the body, unless attendance at the\nregular meeting location is not feasible due to the disaster,\nincluding the issued disaster declaration, in which case the public\nbody must make alternative arrangements and provide notice\npursuant to this Section of such alternative arrangements in a\nmanner to allow any interested member of the public access to\ncontemporaneously hear all discussion, testimony, and roll call\nvotes, such as by offering a telephone number or a web- based\nlink[.] (Emphasis added.)\nThe Commission acknowledged that its November 11, 2021, meeting notice did\nnot include a weblink or other instructions for how the public could access the videoconference.\nAccordingly, this office concludes that the Commission violated section 7(e)( 4) of OMA.\nThis office reminds the Commission that if it chooses to hold a meeting remotely,\nit must adhere to all of the requirements listed in section 7(e) of OMA, including the\nrequirements that the head of the Commission make a determination that an in-person meeting is\nnot practical or prudent and that the meeting notice and agenda describe the Commission' s\nalternative arrangements in a manner to allow any interested member of the public to access the\nmeeting.\n\n\fMs. Alexandra B. Ruggie\nMarch 16, 2022\nPage 4\n\nClosed Session Procedure\nSection 2a of OMA sets forth the procedure for a public body to enter closed\nsession, including the requirement that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. ( Emphasis added.)\nIn its response to this office, the Commission stated that the November 11, 2021,\nmeeting minutes reflect the votes on the motion to hold a meeting closed to the public, but the\nCommission acknowledged that the minutes did not include a citation to the exception contained\nin section 2 of OMA authorizing it to close the meeting. This office' s review of the recording of\nthe open session of the meeting confirmed that the Commission did not publicly disclose the\napplicable citation to section 2 of OMA at the time of the vote.\nTo remedy these violations of section 2a of OMA, this office requests that the\nCommission vote to amend its November 11, 2021, meeting minutes to reflect the specific\nexception( s) that authorized its closed session. This office also reminds the Commission that if it\nwishes to close a portion of a meeting in the future, it must in open session either announce that\nit intends to close the meeting pursuant to the specific subsection in section 2 of OMA or recite\nlanguage from section 2 that sufficiently identifies the relevant exception( s). Ill. Att'y Gen. Pub.\nAcc. Op. No. 15-007, issued September 16, 2015, at 4-5.\ncontended that the minutes should have reflected a roll call vote\non the question of whether to go into closed session. This office has previously determined that\nsection 2a of OMA does not set forth a specific procedure, such as a roll call vote, for entering\nclosed session. Ill. Att'y Gen. PAC Req. Rev. Ltr. 59813, issued September 26, 2019, at 2. It\nonly requires a citation to the exception that is the basis for closing the meeting and that the vote\nof each member be publicly disclosed. However, section 7(e)( 6) of OMA ( 5 ILCS 120/ 7(e)( 6)\nWest 2020)) requires that for remote meetings, \" all votes are conducted by roll call, so each\nmember' s vote on each issue can be identified and recorded.\" This office' s review of the\nNovember 11, 2021, open session recording revealed that the Commission Chairman moved to\nadjourn to closed session, another Commission member stated, \" so move,\" and a third\nCommission member seconded the motion. The Commissioner then asked all members in favor\nto state \" aye,\" which it appears that all members did almost simultaneously. Because the\nCommission members responded at the same time, it is impossible to hear or see each\n\n\fMs. Alexandra B. Ruggie\nMarch 16, 2022\nPage 5\n\nindividual' s affirmative vote, though there is no indication that anyone voted against going into\nclosed session. Accordingly, although the Commission' s vote did not violate the requirements of\nsection 2a, it did violate the requirements of section 7(e)( 6) because it was not a roll call vote. 2\nThis office reminds the Commission to take roll call votes whenever it conducts remote\nmeetings.\nThe meeting minutes reflect that the votes to go into closed session were 4-0 in\nfavor. Because the vote was unanimous and the minutes listed each member of the Commission\nwho was present at the meeting, the vote tally information in the minutes complied with section\n2a of OMA. There is no other provision of OMA that would require the meeting minutes of a\nremote meeting to contain any additional detail of the vote to enter closed session.\nClosed Session Meeting Minutes\nSection 2.06(a) of OMA ( 5 ILCS 120/ 2.06(a) ( West 2020)) requires that:\na) All public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\ntheir closed meetings in the form of an audio or video recording.\nMinutes shall include, but need not be limited to:\n1) the date, time and place of the meeting;\n2) the members of the public body recorded as either present\nor absent and whether the members were physically present or\npresent by means of video or audio conference; and\n3) a summary of discussion on all matters proposed,\ndeliberated, or decided, and a record of any votes taken.\nIn a February 22, 2022, e-mail to this office, the Commission stated that it did not\ntake minutes of its closed session meetings. In response to a previous Request for Review with\nthis office, the Commission stated that it did not keep minutes of its closed sessions because the\nclosed sessions consist of candidate interviews in a question and answer format. 3\nThe language of section 2.06(a) clearly states that public bodies are required to\nkeep written minutes and verbatim recordings of their closed session meetings. There are no\nexceptions for closed sessions in which interviews are conducted. This office requests that the\n\n2This office also notes that the Commission failed to take a roll call vote when it approved the\nOctober 4, 2021, meeting minutes.\n32021 PAC 67096.\n\n\fMs. Alexandra B. Ruggie\nMarch 16, 2022\nPage 6\n\nCommission prepare minutes for the November 11, 2021, closed session and keep meeting\nminutes for all future closed sessions.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n69228 o 2a improper 206a improper 7e improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session minutes and remote meeting notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69228/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 16, 2022\n\nVia electronic mail\n\nVia electronic mail\nMs. Alexandra B. Ruggie\nAssistant City Attorney\nLaw Department\nCity of Evanston\n2100 Ridge Avenue\nEvanston, Illinois 60201\naruggie@cityofevanston. org\nRE: OMA Request for Review – 2022 PAC 69228\nDear\n\nand Ms. Ruggie:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the City of Evanston Public Safety Civil Service Commission\nCommission) violated OMA in connection with its November 11, 2021, meeting.\nBACKGROUND\nIn a Request for Review received by this office on January 3, 2022,\nalleged that the head of the Commission did not make a determination that an inperson open meeting on November 11, 2021, was not practical or prudent, as required by section\n7(e)(2) of OMA (5 ILCS 120/ 7(e)(2) (West 2020)) and that the meeting agenda did not provide\nnotice of the alternative meeting arrangements in a manner to allow any interested member of the\npublic access, such as by offering a telephone number or a web- based link, as required by section\n7(e)(4) of OMA (5 ILCS 120/ 7(e)(4) (West 2020)). Further,\nalleged that the\nminutes for the Commission's November 11, 2021, meeting did not reflect the votes of each\nCommission member on the question of holding a meeting closed to the public or citations to the\n\nspecific exception(s) contained in section 2 of OMA (5 ILCS 120/ 2 (West 2020)) authorizing the\nclosing of that meeting, in violation of section 2a of OMA (5 ILCS 120/ 2a (West 2020)).\nOn January 7, 2022, this office sent a copy of the Request for Review to legal\ncounsel for the Commission and requested that it provide a written response to\nallegations concerning the November 11, 2021, meeting. This office also\nrequested copies of the November 11, 2021, meeting agenda, open and closed session minutes,\nand verbatim recording of the open session. On January 27, 2022, City of Evanston legal\ncounsel provided a written response on behalf of the Commission and the meeting agenda and\nminutes. On January 31, 2022, this office forwarded the Commission's written response to\nhe replied on February 7, 2022. On February 22, 2022, the Commission provided\nthis office with recordings of the open and closed sessions of the November 11, 2021, meeting,\nand stated that there were no closed session minutes.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nRemote Meeting Procedures\nSection 7(e) of OMA permits public bodies to conduct meetings remotely when\nthe Governor or the Director of the Illinois Department of Public Health has issued a disaster\ndeclaration related to public health concerns, as long as certain conditions are met. 1 Section\n7(e)(2) of OMA states:\ne) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or video\nconference, without the physical presence of a quorum of the\nmembers, so long as the following conditions are met:\n\n1 Gubernatorial Disaster Proclamation issued October 15, 2022 was in effect at the time of the\n\n2) the head of the public body as defined in subsection (e)\nof Section 2 of the Freedom of Information Act determines\nthat an in-person meeting or a meeting conducted under\nthis Act is not practical or prudent because of a disaster[.]\nThe Commission's response to this office confirmed that the Commission\nconducted its November 11, 2021, meeting remotely. The Commission stated that there was no\nindication that the head of the Commission made a determination that an in-person meeting was\nnot practical or prudent. Therefore, this office concludes that the Commission violated section\n7(e)(2) of OMA.\nalso alleged that the Commission did not include a link on the\nmeeting agenda to permit members of the public to access its virtual meeting. Section 7(e)(4) of\nOMA contains specific notice requirements that a public body must meet to conduct a remote\nmeeting pursuant to section 7(e), as follows:\n4) for open meetings, members of the public present at the regular\nmeeting location of the body can hear all discussion and testimony\nand all votes of the members of the body, unless attendance at the\nregular meeting location is not feasible due to the disaster,\nincluding the issued disaster declaration, in which case the public\nbody must make alternative arrangements and provide notice\npursuant to this Section of such alternative arrangements in a\nmanner to allow any interested member of the public access to\ncontemporaneously hear all discussion, testimony, and roll call\nvotes, such as by offering a telephone number or a web- based\nlink[.] (Emphasis added.)\nThe Commission acknowledged that its November 11, 2021, meeting notice did\nnot include a weblink or other instructions for how the public could access the videoconference.\nAccordingly, this office concludes that the Commission violated section 7(e)(4) of OMA.\nThis office reminds the Commission that if it chooses to hold a meeting remotely,\nit must adhere to all of the requirements listed in section 7(e) of OMA, including the\nrequirements that the head of the Commission make a determination that an in-person meeting is\nnot practical or prudent and that the meeting notice and agenda describe the Commission's\nalternative arrangements in a manner to allow any interested member of the public to access the\n\nClosed Session Procedure\nSection 2a of OMA sets forth the procedure for a public body to enter closed\nsession, including the requirement that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nIn its response to this office, the Commission stated that the November 11, 2021,\nmeeting minutes reflect the votes on the motion to hold a meeting closed to the public, but the\nCommission acknowledged that the minutes did not include a citation to the exception contained\nin section 2 of OMA authorizing it to close the meeting. This office's review of the recording of\nthe open session of the meeting confirmed that the Commission did not publicly disclose the\napplicable citation to section 2 of OMA at the time of the vote.\nTo remedy these violations of section 2a of OMA, this office requests that the\nCommission vote to amend its November 11, 2021, meeting minutes to reflect the specific\nexception(s) that authorized its closed session. This office also reminds the Commission that if it\nwishes to close a portion of a meeting in the future, it must in open session either announce that\nit intends to close the meeting pursuant to the specific subsection in section 2 of OMA or recite\nlanguage from section 2 that sufficiently identifies the relevant exception(s). Ill. Att'y Gen. Pub.\nAcc. Op. No. 15-007, issued September 16, 2015, at 4-5.\ncontended that the minutes should have reflected a roll call vote\non the question of whether to go into closed session. This office has previously determined that\nsection 2a of OMA does not set forth a specific procedure, such as a roll call vote, for entering\nclosed session. Ill. Att'y Gen. PAC Req. Rev. Ltr. 59813, issued September 26, 2019, at 2. It\nonly requires a citation to the exception that is the basis for closing the meeting and that the vote\nof each member be publicly disclosed. However, section 7(e)(6) of OMA (5 ILCS 120/ 7(e)(6)\nWest 2020)) requires that for remote meetings, \" all votes are conducted by roll call, so each\nmember's vote on each issue can be identified and recorded.\" This office's review of the\n\nindividual's affirmative vote, though there is no indication that anyone voted against going into\nclosed session. Accordingly, although the Commission's vote did not violate the requirements of\nsection 2a, it did violate the requirements of section 7(e)(6) because it was not a roll call vote. 2\nThis office reminds the Commission to take roll call votes whenever it conducts remote\nmeetings.\nThe meeting minutes reflect that the votes to go into closed session were 4-0 in\nfavor. Because the vote was unanimous and the minutes listed each member of the Commission\nwho was present at the meeting, the vote tally information in the minutes complied with section\n2a of OMA. There is no other provision of OMA that would require the meeting minutes of a\nremote meeting to contain any additional detail of the vote to enter closed session.\nClosed Session Meeting Minutes\nSection 2.06(a) of OMA (5 ILCS 120/ 2.06(a) (West 2020)) requires that:\na) All public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\ntheir closed meetings in the form of an audio or video recording.\nMinutes shall include, but need not be limited to:\n1) the date, time and place of the meeting;\n2) the members of the public body recorded as either present\nor absent and whether the members were physically present or\npresent by means of video or audio conference; and\n3) a summary of discussion on all matters proposed,\ndeliberated, or decided, and a record of any votes taken.\nIn a February 22, 2022, e-mail to this office, the Commission stated that it did not\ntake minutes of its closed session meetings. In response to a previous Request for Review with\nthis office, the Commission stated that it did not keep minutes of its closed sessions because the\nclosed sessions consist of candidate interviews in a question and answer format. 3\nThe language of section 2.06(a) clearly states that public bodies are required to\nkeep written minutes and verbatim recordings of their closed session meetings. There are no\nexceptions for closed sessions in which interviews are conducted. This office requests that the\n\n2 This office also notes that the Commission failed to take a roll call vote when it approved the\n\nCommission prepare minutes for the November 11, 2021, closed session and keep meeting\nminutes for all future closed sessions.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n69228 o 2a improper 206a improper 7e improper mun"}
{"id":1365,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-02-04","case_number":null,"request_numbers":["69366"],"title":"Western Illinois University Board of Trustees did not violate OMA during public comment period","filename":"69366, issued February 4, 2022.pdf","rel_path":null,"word_count":940,"summary":"A requester alleged that a Western Illinois University Board of Trustees member violated the Open Meetings Act by interrupting and pivoting away from public comments made by students. The PAC determined that the board member's actions did not infringe upon the right to public comment and closed the matter.","plain_summary":"A student group complained that a university board member acted improperly by interrupting and changing the subject during a public comment session. The Attorney General's office reviewed the meeting recording and concluded that the board member's actions did not violate the Open Meetings Act. Consequently, the office closed the case without taking further action.","holding":"The PAC determined that no violation of the Open Meetings Act occurred because the board member's conduct during the public comment period did not infringe upon the public's right to comment.","legal_question":"Whether a member of a public body violates the Open Meetings Act by interrupting or pivoting away from topics raised by members of the public during a public comment period.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Western Illinois University Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The conduct of a board member during the public comment portion of a university board meeting.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/interruptions/69366, issued February 4, 2022.pdf","sha256":"d908e02b43bcd4d24f9be209626e0a8957b8f8f496206771e6734bc316b71f16","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","board of trustees","university","meeting conduct"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 4, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 69366\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\nhas determined that no further action is warranted in this matter.\nOn January 11, 2022, you submitted a Request for Review alleging that during the\n\nWestern Illinois University (WIU) Board of Trustees (Board) meeting on December 2, 2021,\nTrustee Polly Radosh may have violated OMA by interrupting and pivoting away from the topics\n\nof concern of several Black Student Association (BSA) members. You included hyperlinks to\nthe WIU audio recording of the December 2, 2021, Board meeting, 1 a petition filed by the BSA\n\nto remove Trustee Radosh,2 and an online news article published by Tri States Public Radio.3\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) ( West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.]\nThe request for review * * *\n\nmust include a summary of the facts supporting the\n\nallegation.\" (Emphasis added.)\n1WIU Board of Trustees Meeting: 12/2/2021, YouTube (streamed live on Dec 2, 2021),\nhttps:// www.youtube. com/watch?v=pRl19Rh8l38.\n2Petition to Remove Board of Trustee Member Polly Radosh, available at\nhttps://www.change.org/p/western-illinois-university-remove-board-of-trustee-member-polly-radosh.\n3Rich Egger, Black students say WIU not supporting them; administration responds, Tri States\nPublic Radio (Dec. 7, 2021, 9:59 a.m.), https:// www.tspr.org/tspr-local/2021-12-07/black-students-say-wiu-notsupporting-them-administration-responds\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: ( 217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fFebruary 4, 2022\n\nPage 2\n\nAs a threshold matter, the requirements of OMA apply to each \" public body\" as a\n\nwhole. 5 ILCS 120/1 (West 2020). Your allegation that Trustee Radosh interrupted the public\ncomments of several BSA members during the meeting does not allege that the Board itself\n\nviolated OMA. Moreover, no provision of OMA restricts a public official from responding to a\npublic comment. Rather, section 2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) ( West 2020)) simply\n\nprovides that \"[ a]ny person shall be permitted an opportunity to address public officials under the\nrules established and recorded by the public body.\" A public body violates section 2.06( g) when\n\nit improperly restricts the right to public comment. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-009,\nissued September 4, 2014, at 5-7. This office has previously determined that a brief interruption\n\nthat does not preclude a speaker from completing his or her public comment does not constitute\nan improper restriction on public comment. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n\n61123, issued January 13, 2020, at 3.\nThis office's review of the audio recording of the December 2, 2021, Board\nmeeting found that the public comment period began with at least four members of the BSA\n\naddressing the Board for approximately three to six minutes, each sharply criticizing how WIU\nhas handled Black students' concerns. The Board did not interrupt the public comments of any\n\nBSA member in a manner that would violate OMA. The Board interrupted three of the BSA\nmembers to note that their allocated time had concluded; however, the Board allowed each\n\nmember to continue speaking. Regarding the fourth BSA member, two of the trustees spoke\nduring her time because this individual asked them several questions about specific Board policy\nchanges. 4 Once the trustees gave their answers, this individual continued to speak for an\n\nadditional minute.5\nThe audio recording also shows that Trustee Radosh addressed the audience\nduring the public comment period. 6 After confirming that there was enough time for the last\n\nspeaker, she spoke for approximately three minutes and addressed the comments made by the\nBSA members. As she spoke, one of the BSA members who had just addressed the Board\n\ninterjected from the audience, and Trustee Radosh engaged in a dialogue with her before finally\nasking the student not to interrupt her. The Board was not obligated to allow the student to\n\ncontinue the back-and-forth exchange given that the student's public comment had concluded.\nOnce Trustee Radosh stopped speaking, the last speaker addressed the Board without\n\n4WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 20:05 (streamed live on Dec 2, 2021),\nhttps:// www.youtube. com/watch?v=pRl19Rh8l38.\n5WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 23:30 (streamed live on Dec 2, 2021),\nhttps://www.youtube.com/watch?v=pRl19Rh8l38.\n6WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 27:23-31:33 (streamed live on Dec 2,\n2021), https://www.youtube.com/watch?v=pRl19Rh8l38.\n\n\fFebruary 4, 2022\n\nPage 3\n\ninterruption. OMA does not prohibit a member of a public body from addressing the audience\n\nduring the public comment period.\nUnder these circumstances, the Board did not infringe upon any person's right to\npublic comment. Therefore, this office has determined that no further action is warranted in this\n\nmatter.\nThis file is closed. Please contact me at the Chicago address listed on the first\npage of this letter or by e- mail at c.lucentemccullough@ilag. gov if you have questions.\nVery truly yours,\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\n\nPublic Access Bureau\n69366 o no fi war univ\ncc:\n\nVia electronic mail\nThe Honorable Doug Shaw\n\nChairman, Board of Trustees\nWestern Illinois University\n\n1 University Circle\nMacomb, Illinois 61455\n\nDW-Shaw@wiu.edu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board member's conduct during public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69366/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 4, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 69366\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\nhas determined that no further action is warranted in this matter.\nOn January 11, 2022, you submitted a Request for Review alleging that during the\n\nWestern Illinois University (WIU) Board of Trustees (Board) meeting on December 2, 2021,\nTrustee Polly Radosh may have violated OMA by interrupting and pivoting away from the topics\n\nof concern of several Black Student Association (BSA) members. You included hyperlinks to\nthe WIU audio recording of the December 2, 2021, Board meeting, 1 a petition filed by the BSA\n\nto remove Trustee Radosh,2 and an online news article published by Tri States Public Radio.3\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.]\nThe request for review * * *\n\nmust include a summary of the facts supporting the\n\nallegation.\" (Emphasis added.)\n1WIU Board of Trustees Meeting: 12/2/2021, YouTube (streamed live on Dec 2, 2021),\nhttps:// www.youtube. com/watch?v=pRl19Rh8l38.\n2 Petition to Remove Board of Trustee Member Polly Radosh, available at\nhttps://www.change.org/p/western-illinois-university-remove-board-of-trustee-member-polly-radosh.\n3 Rich Egger, Black students say WIU not supporting them; administration responds, Tri States\nPublic Radio (Dec. 7, 2021, 9:59 a.m.), https:// www.tspr.org/tspr-local/2021-12-07/black-students-say-wiu-notsupporting-them-administration-responds\n\nAs a threshold matter, the requirements of OMA apply to each \" public body\" as a\n\nwhole. 5 ILCS 120/1 (West 2020). Your allegation that Trustee Radosh interrupted the public\ncomments of several BSA members during the meeting does not allege that the Board itself\n\nviolated OMA. Moreover, no provision of OMA restricts a public official from responding to a\npublic comment. Rather, section 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2020)) simply\n\nprovides that \"[ a]ny person shall be permitted an opportunity to address public officials under the\nrules established and recorded by the public body.\" A public body violates section 2.06(g) when\n\nit improperly restricts the right to public comment. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-009,\nissued September 4, 2014, at 5-7. This office has previously determined that a brief interruption\n\nthat does not preclude a speaker from completing his or her public comment does not constitute\nan improper restriction on public comment. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n\n61123, issued January 13, 2020, at 3.\nThis office's review of the audio recording of the December 2, 2021, Board\nmeeting found that the public comment period began with at least four members of the BSA\n\naddressing the Board for approximately three to six minutes, each sharply criticizing how WIU\nhas handled Black students' concerns. The Board did not interrupt the public comments of any\n\nBSA member in a manner that would violate OMA. The Board interrupted three of the BSA\nmembers to note that their allocated time had concluded; however, the Board allowed each\n\nmember to continue speaking. Regarding the fourth BSA member, two of the trustees spoke\nduring her time because this individual asked them several questions about specific Board policy\nchanges. 4 Once the trustees gave their answers, this individual continued to speak for an\n\nadditional minute.5\nThe audio recording also shows that Trustee Radosh addressed the audience\nduring the public comment period. 6 After confirming that there was enough time for the last\n\nspeaker, she spoke for approximately three minutes and addressed the comments made by the\nBSA members. As she spoke, one of the BSA members who had just addressed the Board\n\ninterjected from the audience, and Trustee Radosh engaged in a dialogue with her before finally\nasking the student not to interrupt her. The Board was not obligated to allow the student to\n\ncontinue the back-and-forth exchange given that the student's public comment had concluded.\nOnce Trustee Radosh stopped speaking, the last speaker addressed the Board without\n\n4WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 20:05 (streamed live on Dec 2, 2021),\nhttps:// www.youtube. com/watch?v=pRl19Rh8l38.\n5WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 23:30 (streamed live on Dec 2, 2021),\nhttps://www.youtube.com/watch?v=pRl19Rh8l38.\n6WIU Board of Trustees Meeting: 12/2/2021, YouTube, at 27:23-31:33 (streamed live on Dec 2,\n\ninterruption. OMA does not prohibit a member of a public body from addressing the audience\n\nduring the public comment period.\nUnder these circumstances, the Board did not infringe upon any person's right to\npublic comment. Therefore, this office has determined that no further action is warranted in this\n\nmatter.\nThis file is closed. Please contact me at the Chicago address listed on the first\npage of this letter or by e- mail at c.lucentemccullough@ilag. gov if you have questions.\nVery truly yours,\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\n\nPublic Access Bureau\n69366 o no fi war univ\ncc:\n\nVia electronic mail\nThe Honorable Doug Shaw\n\nChairman, Board of Trustees\nWestern Illinois University\n\n1 University Circle\nMacomb, Illinois 61455\n\nDW-Shaw@wiu.edu"}
{"id":1366,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-02-09","case_number":null,"request_numbers":["69534"],"title":"Madison County Board did not violate OMA in closed session minutes review","filename":"69534, issued February 9, 2022.pdf","rel_path":null,"word_count":1235,"summary":"A requester alleged that the Madison County Board failed to conduct a sufficient review of its closed session minutes during a December 2021 meeting. The PAC determined that the Board complied with its obligations and that no further action was warranted.","plain_summary":"A citizen complained that the Madison County Board did not properly review its closed-door meeting minutes. The Attorney General's office found that the Board followed the law by reviewing the minutes and explaining why they needed to remain private. Because the law gives public bodies discretion in these reviews, the PAC closed the case without finding a violation.","holding":"The PAC concluded that the Madison County Board did not violate the Open Meetings Act because it reviewed its closed session minutes and provided a general explanation for maintaining confidentiality.","legal_question":"Whether the Madison County Board violated the Open Meetings Act by conducting an allegedly insufficient review of its closed session minutes.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Madison County Board","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"The review of closed session minutes and verbatim recordings for continued confidentiality.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_d/69534, issued February 9, 2022.pdf","sha256":"687b618f8f7d27454ba8b634897b1e892af4e41d42974e9842f86a836a7a05b6","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting minutes","confidentiality","public body"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 9, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 69534\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). On January 21, 2022, the Public Access Bureau\nreceived your correspondence alleging that the Madison County Board ( Board) violated OMA in\nconnection with its December 15, 2021, review of closed session minutes. For the reasons set\nforth below, the Public Access Bureau concludes that no further action is warranted as to this\nmatter.\nAt the time of the Board' s December 15, 2021, meeting, section 2.06(d) of OMA\n5 ILCS 120/ 2.06(d) (West 2020)) provided, 1 in pertinent part:\nEach public body shall periodically, but no less than semiannually, meet to review minutes of all closed meetings. At such\nmeetings a determination shall be made, and reported in an open\nsession that ( 1) the need for confidentiality still exists as to all or\npart of those minutes or (2) that the minutes or portions thereof no\n\n1Public Act 102-653, effective January 1, 2022, amended section 2.06(d) as follows:\nEach public body shall periodically meet to review minutes of all\nclosed meetings. Meetings to review minutes shall occur every 6 months, or as\nsoon thereafter as is practicable, taking into account the nature and meeting\nschedule of the public body. Committees which are ad hoc in nature shall review\nclosed session minutes at the later of (1) 6 months from the date of the last\nreview of closed session minutes or ( 2) at the next scheduled meeting of the ad\nhoc committee.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fFebruary 9, 2022\nPage 2\n\nlonger require confidential treatment and are available for public\ninspection.\nYour Request for Review challenges the sufficiency of the Board' s review of its\nclosed session minutes at the December 15, 2021, meeting. Specifically, you contend that\nthere was no review by the County Board, there was only [ a] vote\nwhere it was claimed the minutes were reviewed. I can attest to\nthis because I was present at the meeting before they went into\nexecutive session purportedly to review them and watched through\nthe window. Common sense dictates it would have been\nimpossible for them to review all of the meetings in the short\namount of time they were sequestered, but facts don't lie, and the\nschedule of what they were reviewing that was reported to be part\nof the agenda wasn' t created until two days later. * * * [ W] hat is\nimportant is that a binding opinion be issued that describes mere\nvoting to conceal what happened during a closed session does not\nconstitute, especially when the board has turned over and then\nmembers have not listened to a closed session and so are not\nfulfilling their duty of reviewing closed sessions so that they can\nmake an informed determination whether or not the need exists for\nthem to remain closed instead of abdicating that responsibility to\ntheir legal counsel and there [ sic] compliance with the act be\nreduced to merely voting.[ 2]\nYour Request for Review included a copy of the Board' s December 15, 2021,\nmeeting minutes, which included the resolution the Board passed concerning its review of the\nclosed session minutes for all periods prior to October 31, 2021. That resolution stated, in\nrelevant part, that\na review of closed session minutes by the Office of the Madison\nCounty State's Attorney, in conjunction with the review by the\nCounty Board recommends that the closed session minutes listed\non Schedule B, and the verbatim recordings for the meetings listed\non Schedule C, require continued confidentiality due to ongoing\nexemptions under the Illinois Open Meetings Act, 5 ILCS 120 and/\nor the Illinois Freedom of Information Act, 5 ILCS 140, including\nbut not limited to one or more of the following reasons, attorney2E- mail from\nJanuary 21, 2022).\n\nto [ Public Access Bureau, Office of the Attorney General]\n\n\fFebruary 9, 2022\nPage 3\n\nclient privilege communications between members of the County\nBoard and its attorney( s) in which legal advice, communication\nand opinions were given which would not be subject to discovery\nin litigation, the Tort Immunity Act, ongoing pending litigation,\nsecurity, real estate negotiations, or confidential personnel or\nmedical information[.][ 3]\nSchedule B and Schedule C list, by individual meeting, the general reasons why the Board\ndetermined that the closed session minutes and verbatim recordings from those meetings\ncontinue to require confidential treatment.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) ( West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\" and that the submission \" must include a summary\nof the facts supporting the allegation.\" ( Emphasis added.)\nAs this office has previously stated, OMA does not set forth any guidelines about\nthe need for closed session minutes' confidentiality or otherwise limit a public body's discretion\nto determine whether its closed session minutes require confidential treatment. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. S-0184, issued July 2, 2021, at 3 (noting that the OMA does not\nprovide a basis on which the Public Access Counselor may review the Madison County Board' s\ndeterminations about the need for confidentiality of closed session meeting minutes). Similarly,\nOMA does not describe the manner by which a public body must conduct its semi- annual\nreview, such as how long a public body must take to review its minutes or whether it may seek\nthe advice of counsel. Based on the information in your Request for Review, it appears that the\nMadison County State's Attorney' s Office, which serves as legal counsel to the Board, reviewed\nthe relevant closed session minutes, and in conjunction with its counsel' s review, the Board\ndetermined whether the need for confidentiality still exists for its closed session minutes and\nverbatim recordings. Further, the Board provided a general explanation for why certain minutes\nrequired continued confidential treatment. In light of the discretion that OMA affords public\nbodies to determine whether closed session minutes require confidential treatment and in the\nabsence of any procedural requirements for reviewing closed session minutes, your allegation\nthat the Board conducted an insufficient review does not provide a basis upon which this office\ncan conclude that the Board violated OMA. Accordingly, this office will take no further action\nin this matter.\n\n3Madison County Board, Meeting, December 15, 2021, Minutes 86.\n\n\fFebruary 9, 2022\nPage 4\n\nThis letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n69534 o no fi war co\ncc:\n\nVia electronic mail\nThe Honorable Kurt Prenzler\nChairman\nMadison County Board\n157 North Main Street, Suite 165\nEdwardsville, Illinois 62025\ncoboard@co. madison. il.us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A county board's review of closed session minutes and recordings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69534/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 9, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 69534\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). On January 21, 2022, the Public Access Bureau\nreceived your correspondence alleging that the Madison County Board (Board) violated OMA in\nconnection with its December 15, 2021, review of closed session minutes. For the reasons set\nforth below, the Public Access Bureau concludes that no further action is warranted as to this\nmatter.\nAt the time of the Board's December 15, 2021, meeting, section 2.06(d) of OMA\n5 ILCS 120/ 2.06(d) (West 2020)) provided, 1 in pertinent part:\nEach public body shall periodically, but no less than semiannually, meet to review minutes of all closed meetings. At such\nmeetings a determination shall be made, and reported in an open\nsession that (1) the need for confidentiality still exists as to all or\npart of those minutes or (2) that the minutes or portions thereof no\n\n1 Public Act 102-653, effective January 1, 2022, amended section 2.06(d) as follows:\nEach public body shall periodically meet to review minutes of all\nclosed meetings. Meetings to review minutes shall occur every 6 months, or as\nsoon thereafter as is practicable, taking into account the nature and meeting\nschedule of the public body. Committees which are ad hoc in nature shall review\nclosed session minutes at the later of (1) 6 months from the date of the last\nreview of closed session minutes or (2) at the next scheduled meeting of the ad\nhoc committee.\n\nlonger require confidential treatment and are available for public\ninspection.\nYour Request for Review challenges the sufficiency of the Board's review of its\nclosed session minutes at the December 15, 2021, meeting. Specifically, you contend that\nthere was no review by the County Board, there was only [ a] vote\nwhere it was claimed the minutes were reviewed. I can attest to\nthis because I was present at the meeting before they went into\nexecutive session purportedly to review them and watched through\nthe window. Common sense dictates it would have been\nimpossible for them to review all of the meetings in the short\namount of time they were sequestered, but facts don't lie, and the\nschedule of what they were reviewing that was reported to be part\nof the agenda wasn' t created until two days later. * * * [ W] hat is\nimportant is that a binding opinion be issued that describes mere\nvoting to conceal what happened during a closed session does not\nconstitute, especially when the board has turned over and then\nmembers have not listened to a closed session and so are not\nfulfilling their duty of reviewing closed sessions so that they can\nmake an informed determination whether or not the need exists for\nthem to remain closed instead of abdicating that responsibility to\ntheir legal counsel and there [ sic] compliance with the act be\nreduced to merely voting.[ 2]\nYour Request for Review included a copy of the Board's December 15, 2021,\nmeeting minutes, which included the resolution the Board passed concerning its review of the\nclosed session minutes for all periods prior to October 31, 2021. That resolution stated, in\nrelevant part, that\na review of closed session minutes by the Office of the Madison\nCounty State's Attorney, in conjunction with the review by the\nCounty Board recommends that the closed session minutes listed\non Schedule B, and the verbatim recordings for the meetings listed\n\nclient privilege communications between members of the County\nBoard and its attorney(s) in which legal advice, communication\nand opinions were given which would not be subject to discovery\nin litigation, the Tort Immunity Act, ongoing pending litigation,\nsecurity, real estate negotiations, or confidential personnel or\nmedical information[.][ 3]\nSchedule B and Schedule C list, by individual meeting, the general reasons why the Board\ndetermined that the closed session minutes and verbatim recordings from those meetings\ncontinue to require confidential treatment.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\" and that the submission \" must include a summary\nof the facts supporting the allegation.\" (Emphasis added.)\nAs this office has previously stated, OMA does not set forth any guidelines about\nthe need for closed session minutes' confidentiality or otherwise limit a public body's discretion\nto determine whether its closed session minutes require confidential treatment. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. S-0184, issued July 2, 2021, at 3 (noting that the OMA does not\nprovide a basis on which the Public Access Counselor may review the Madison County Board's\ndeterminations about the need for confidentiality of closed session meeting minutes). Similarly,\nOMA does not describe the manner by which a public body must conduct its semi- annual\nreview, such as how long a public body must take to review its minutes or whether it may seek\nthe advice of counsel. Based on the information in your Request for Review, it appears that the\nMadison County State's Attorney's Office, which serves as legal counsel to the Board, reviewed\nthe relevant closed session minutes, and in conjunction with its counsel's review, the Board\ndetermined whether the need for confidentiality still exists for its closed session minutes and\nverbatim recordings. Further, the Board provided a general explanation for why certain minutes\nrequired continued confidential treatment. In light of the discretion that OMA affords public\nbodies to determine whether closed session minutes require confidential treatment and in the\nabsence of any procedural requirements for reviewing closed session minutes, your allegation\nthat the Board conducted an insufficient review does not provide a basis upon which this office\ncan conclude that the Board violated OMA. Accordingly, this office will take no further action\n\nThis letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n69534 o no fi war co\ncc:\n\nVia electronic mail\nThe Honorable Kurt Prenzler\nChairman\nMadison County Board\n157 North Main Street, Suite 165\nEdwardsville, Illinois 62025\ncoboard@co. madison. il.us"}
{"id":1367,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-05-12","case_number":null,"request_numbers":["69573"],"title":"Brookfield LaGrange Park School Dist. 95 Board did not violate OMA in closed session","filename":"69573, issued May 12, 2022.pdf","rel_path":null,"word_count":1692,"summary":"A requester alleged that the Brookfield LaGrange Park School District 95 Board of Education discussed topics outside of the permitted exceptions during a closed session on December 9, 2021. The PAC determined that the Board did not violate the Open Meetings Act.","plain_summary":"A citizen complained that a local school board discussed improper topics during a private, closed-door meeting. After reviewing the matter, the Illinois Attorney General's office found that the board stayed within the legal rules for closed sessions. As a result, the case is closed with no finding of a violation.","holding":"The Board of Education did not hold an improper closed session discussion at its December 9, 2021, meeting.","legal_question":"Whether the Board of Education violated the Open Meetings Act by discussing topics in closed session that did not fall within the statutory exceptions to the requirement that meetings be held in public.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Brookfield LaGrange Park School District 95 Board of Education","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The requester alleged the Board discussed matters outside of the personnel exception during a closed session.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/69573, issued May 12, 2022.pdf","sha256":"7a8a07646aeb66c0c9b9806a46b8632c3a4c9cf3704250310304cf515a49b7a7","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","Open Meetings Act","personnel matters"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 12, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Katie Mulcrone\nPresident, Board of Education\n\nBrookfield LaGrange Park School District 95\n3724 Prairie Avenue\n\nBrookfield, Illinois 60513\nkmulcrone@district95. org\nRE: OMA Request for Review – 2022 PAC 69573\nDear\n\nand Ms. Mulcrone:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Education ( Board) of Brookfield LaGrange Park School District 95\n\nSchool District) did not hold an improper closed session discussion at its December 9, 2021,\nmeeting.\n\nBACKGROUND\nOn January 20, 2022,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board violated OMA at its December 9, 2021, meeting by\ndiscussing a topic in closed session that did not fall within one of OMA' s exceptions to the\n\ngeneral requirement that public bodies conduct meetings openly. In particular,\nasserted that the Board moved to close the meeting \" to discuss ' appointment, employment,\n\ncompensation, discipline, performance or dismissal of specific employees of the District[,]'\" but\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Katie Mulcrone\n\nMay 12, 2022\nPage 2\n\nthat the Board did not limit its discussion to that subject.1 She stated that during the meeting's\nopen session, one of the Board members \" can be heard stating ' like I mentioned in closed session'\n\nbefore proceeding to discuss equipment that was purchased by the Village of Brookfield for\npurposes of live streaming their own monthly Board meetings.\" 2\nOn January 31, 2022, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its December 9, 2021, meeting\nagenda, open and closed session minutes, and closed session verbatim recording for this office' s\n\nconfidential review, together with a written response to\n\nOMA allegations. On\n\nFebruary 9, 2022, and February 10, 2022, this office received the requested materials, including\n\na complete response for this office's confidential review and a redacted version for this office to\nforward to\n\nresponse to\n\n3\n\nOn February 16, 2022, this office forwarded a copy of the Board' s\n\nshe replied on February 23, 2022.\nDETERMINATION\n\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Section 2(a) of\n\nOMA (5 ILCS 120/2(a) ( West 2020)) provides that all meetings of a public body shall be open to\nthe public unless the subject of discussion falls within one of the exceptions set out in section\n2(c) of OMA ( 5 ILCS 120/ 2(c) (West 2020)), and the meeting is closed in accordance with\n\nsection 2a of OMA (5 ILCS 120/2a (West 2020)). The section 2(c) exceptions are to be \"strictly\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) ( West 2020).\nSection 2(c)( 1) of OMA4 permits a public body to hold a closed session to\n\ndiscuss, in pertinent part:\nThe appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park,\n1Letter from\n\nto Sarah Pratt, Public Access Counselor, Public Access Bureau (January\n\n2Letter from\n\nto Sarah Pratt, Public Access Counselor, Public Access Bureau ( January\n\n20, 2022).\n\n20, 2022).\n3See 5 ILCS 120/3.5(c) (West 2020) (\" The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n45 ILCS 120/2(c)(1) (West 2020), as amended by Public Act 102-558, effective August 20, 2021;\n102-237, effective January 1, 2022.\n\n\fThe Honorable Katie Mulcrone\n\nMay 12, 2022\nPage 3\n\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\n\nvalidity.\nThe \"purpose of the [2(c)(1)] exception is to protect the identity and reputation of\na person[.]\"\n\n1974 Ill. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 128. The Attorney\n\nGeneral has previously explained in binding opinions that \"[ t]he use of the phrase 'specific\nemployees of the public body' significantly limits the scope of this exception. Based on this\n\nlanguage, the exception is intended to permit public bodies to candidly discuss the relative merits\nof individual employees, or the conduct of individual employees.\"\n\nIll. Att'y Gen. Pub. Acc. Op.\n\nNo. 15-005, issued August 4, 2015, at 6 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12-011,\nissued July 11, 2012, at 3).\nIn its redacted response to this office, the Board denied that it had discussed in\n\nclosed session the merits of purchasing equipment to livestream its meetings. It acknowledged\nthat the potential equipment purchase was mentioned in closed session, but it asserted that the\npurchase related to its discussion of a specific School District employee, and that the Board\n\nmember who referenced the equipment purchase did not ask the other members to deliberate on\nthat topic. The Board asserted that the same member further alluded to having \" an open session\n\ndiscussion later about whether it would be a good idea to make such a purchase.\" 5 During the\nclosed session discussion, the Board contended that \" Superintendent Mark Kuziewski addressed\n\nseveral matters relating to individual employees[,]\" and that he did not discuss the issue of\nemployment or compensation of a whole category of employees or some undetermined\n\nemployee.\" 6 The Board argued that its members limited their deliberations and comments to Dr.\nKuziewski to those specific employees. The Board' s confidential submission to this office\n\nincluded additional details regarding the context in which the equipment purchase was\nmentioned.\nIn reply to that answer,\n\nemphasized that the Board had confirmed that\n\nthe topic of an equipment purchase came up in closed session. She contended that \"[ a] ny\ndiscussion of equipment purchased by the Village or whether live- streaming should be resumed\n5Letter from John M. Izzo, Petrarca, Gleason, Boyle & Izzo, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau (February 9, 2022), at 2.\n6Letter from John M. Izzo, Petrarca, Gleason, Boyle & Izzo, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau (February 9, 2022), at 1-2.\n\n\fThe Honorable Katie Mulcrone\n\nMay 12, 2022\nPage 4\n\nis not an allowable exception for discussion in closed session under Section 2(c) of the OMA.\"7\nShe further argued that \" a discussion of potentially hiring some unknown independent contractor,\n\nis an attempt to muddy the waters.\" 8 Additionally,\n\nasserted that the Board violated its\n\nown Board policy concerning out- of-order comments. 9\nBased on this office' s review of the verbatim closed session recording and the\n\nBoard's complete response, the Board discussed the employment, performance, or compensation\nof a few School District employees. This office' s review confirmed that Dr. Kuziewski and\n\nBoard members discussed the topic of an equipment purchase in connection with a specific\nindividual' s employment; the discussion did not concern whether to purchase equipment.\n\nAnother brief topic of discussion toward the end of the closed session also arose in connection\nwith and was relevant to considering that specific individual' s employment even though it did not\n\ndirectly focus on the individual. Because these portions of the discussion provided context that\nwas needed to fully consider the specific individual' s employment, performance or\n\ncompensation, they did not exceed the scope of section 2(c)(1). Galena Gazette Publications,\nInc. v. County of Jo Daviess, 375 Ill. App. 3d 338, 344 ( 2d Dist. 2007) ( discussion of the racking\n\nof promotional brochures at property that was the subject of a proposed subleasing agreement\nwas permissible under the exception that permits public bodies to discuss \"[ t]he purchase or\n\nlease of real property for the use of the public body[ ]\" 10 in closed session \"because it was\npertinent to the terms, effects, or desirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature separately from their\n\nconsideration of the proposed subleasing * * *.\n\nTo abstract any such discussions from the larger\n\ncontext would ignore the participants' purposes in raising the issue[.]\").\n\nAccordingly, this office\n\nconcludes that the Board's closed session discussion did not violate OMA.\n\n7Letter from\nto Sarah Pratt, Public Access Counselor, Public Access Bureau, Illinois\nAttorney General's Office (February 23, 2022), at 3.\n8Letter from\nto Sarah Pratt, Public Access Counselor, Public Access Bureau, Illinois\nAttorney General' s Office (February 23, 2022), at 3.\n9The Public Access Counselor' s authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2020)). See 15 ILCS 205/7(c)(3) (West\n2020). Accordingly, this office does not have the authority to take further action on the allegation that the Board\nviolated its own policy.\n105 ILCS 120/2(c-5) (West 2004).\n\n\fThe Honorable Katie Mulcrone\n\nMay 12, 2022\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n69573 o 2c1 proper sd\ncc:\n\nVia electronic mail\n\nMr. John Izzo\nAttorney for Brookfield LaGrange Park School District 95\n\nPetrarca, Gleason, Boyle & Izzo, LLC\n19730 Governors Highway – Suite 10\n\nFlossmoor, Illinois 60422\njizzo@petrarcagleason.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of personnel matters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69573/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 12, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Katie Mulcrone\nPresident, Board of Education\n\nBrookfield LaGrange Park School District 95\n3724 Prairie Avenue\n\nBrookfield, Illinois 60513\nkmulcrone@district95. org\nRE: OMA Request for Review – 2022 PAC 69573\nDear\n\nand Ms. Mulcrone:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Education (Board) of Brookfield LaGrange Park School District 95\n\nSchool District) did not hold an improper closed session discussion at its December 9, 2021,\nmeeting.\n\nBACKGROUND\nOn January 20, 2022,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board violated OMA at its December 9, 2021, meeting by\ndiscussing a topic in closed session that did not fall within one of OMA's exceptions to the\n\ngeneral requirement that public bodies conduct meetings openly. In particular,\nasserted that the Board moved to close the meeting \" to discuss ' appointment, employment,\n\ncompensation, discipline, performance or dismissal of specific employees of the District[,]'\" but\n\nthat the Board did not limit its discussion to that subject.1 She stated that during the meeting's\nopen session, one of the Board members \" can be heard stating ' like I mentioned in closed session'\n\nbefore proceeding to discuss equipment that was purchased by the Village of Brookfield for\npurposes of live streaming their own monthly Board meetings.\" 2\nOn January 31, 2022, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its December 9, 2021, meeting\nagenda, open and closed session minutes, and closed session verbatim recording for this office's\n\nconfidential review, together with a written response to\n\nOMA allegations. On\n\nFebruary 9, 2022, and February 10, 2022, this office received the requested materials, including\n\na complete response for this office's confidential review and a redacted version for this office to\nforward to\n\nresponse to\n\n3\n\nOn February 16, 2022, this office forwarded a copy of the Board's\n\nshe replied on February 23, 2022.\nDETERMINATION\n\nThe intent of OMA is \"to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). Section 2(a) of\n\nOMA (5 ILCS 120/2(a) (West 2020)) provides that all meetings of a public body shall be open to\nthe public unless the subject of discussion falls within one of the exceptions set out in section\n2(c) of OMA (5 ILCS 120/ 2(c) (West 2020)), and the meeting is closed in accordance with\n\nsection 2a of OMA (5 ILCS 120/2a (West 2020)). The section 2(c) exceptions are to be \"strictly\nconstrued, extending only to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(1) of OMA4 permits a public body to hold a closed session to\n\ndiscuss, in pertinent part:\nThe appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park,\n1 Letter from\n\nto Sarah Pratt, Public Access Counselor, Public Access Bureau (January\n\n2 Letter from\n\nto Sarah Pratt, Public Access Counselor, Public Access Bureau (January\n\n20, 2022).\n\n20, 2022).\n3 See 5 ILCS 120/3.5(c) (West 2020) (\" The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n45 ILCS 120/2(c)(1) (West 2020), as amended by Public Act 102-558, effective August 20, 2021;\n\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\n\nvalidity.\nThe \"purpose of the [2(c)(1)] exception is to protect the identity and reputation of\na person[.]\"\n\n1974 Ill. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 128. The Attorney\n\nGeneral has previously explained in binding opinions that \"[ t]he use of the phrase 'specific\nemployees of the public body' significantly limits the scope of this exception. Based on this\n\nlanguage, the exception is intended to permit public bodies to candidly discuss the relative merits\nof individual employees, or the conduct of individual employees.\"\n\nIll. Att'y Gen. Pub. Acc. Op.\n\nNo. 15-005, issued August 4, 2015, at 6 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12-011,\nissued July 11, 2012, at 3).\nIn its redacted response to this office, the Board denied that it had discussed in\n\nclosed session the merits of purchasing equipment to livestream its meetings. It acknowledged\nthat the potential equipment purchase was mentioned in closed session, but it asserted that the\npurchase related to its discussion of a specific School District employee, and that the Board\n\nmember who referenced the equipment purchase did not ask the other members to deliberate on\nthat topic. The Board asserted that the same member further alluded to having \" an open session\n\ndiscussion later about whether it would be a good idea to make such a purchase.\" 5 During the\nclosed session discussion, the Board contended that \" Superintendent Mark Kuziewski addressed\n\nseveral matters relating to individual employees[,]\" and that he did not discuss the issue of\nemployment or compensation of a whole category of employees or some undetermined\n\nemployee.\" 6 The Board argued that its members limited their deliberations and comments to Dr.\nKuziewski to those specific employees. The Board's confidential submission to this office\n\nincluded additional details regarding the context in which the equipment purchase was\nmentioned.\nIn reply to that answer,\n\nemphasized that the Board had confirmed that\n\nthe topic of an equipment purchase came up in closed session. She contended that \"[ a] ny\ndiscussion of equipment purchased by the Village or whether live- streaming should be resumed\n5 Letter from John M. Izzo, Petrarca, Gleason, Boyle & Izzo, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau (February 9, 2022), at 2.\n6 Letter from John M. Izzo, Petrarca, Gleason, Boyle & Izzo, to Teresa Lim, Assistant Attorney\n\nis not an allowable exception for discussion in closed session under Section 2(c) of the OMA.\"7\nShe further argued that \" a discussion of potentially hiring some unknown independent contractor,\n\nis an attempt to muddy the waters.\" 8 Additionally,\n\nasserted that the Board violated its\n\nown Board policy concerning out- of-order comments. 9\nBased on this office's review of the verbatim closed session recording and the\n\nBoard's complete response, the Board discussed the employment, performance, or compensation\nof a few School District employees. This office's review confirmed that Dr. Kuziewski and\n\nBoard members discussed the topic of an equipment purchase in connection with a specific\nindividual's employment; the discussion did not concern whether to purchase equipment.\n\nAnother brief topic of discussion toward the end of the closed session also arose in connection\nwith and was relevant to considering that specific individual's employment even though it did not\n\ndirectly focus on the individual. Because these portions of the discussion provided context that\nwas needed to fully consider the specific individual's employment, performance or\n\ncompensation, they did not exceed the scope of section 2(c)(1). Galena Gazette Publications,\nInc. v. County of Jo Daviess, 375 Ill. App. 3d 338, 344 (2d Dist. 2007) (discussion of the racking\n\nof promotional brochures at property that was the subject of a proposed subleasing agreement\nwas permissible under the exception that permits public bodies to discuss \"[ t]he purchase or\n\nlease of real property for the use of the public body[ ]\" 10 in closed session \"because it was\npertinent to the terms, effects, or desirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature separately from their\n\nconsideration of the proposed subleasing * * *.\n\nTo abstract any such discussions from the larger\n\ncontext would ignore the participants' purposes in raising the issue[.]\").\n\nAccordingly, this office\n\nconcludes that the Board's closed session discussion did not violate OMA.\n\n7 Letter from\nto Sarah Pratt, Public Access Counselor, Public Access Bureau, Illinois\nAttorney General's Office (February 23, 2022), at 3.\n8 Letter from\nto Sarah Pratt, Public Access Counselor, Public Access Bureau, Illinois\nAttorney General's Office (February 23, 2022), at 3.\n9 The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2020)). See 15 ILCS 205/7(c)(3) (West\n2020). Accordingly, this office does not have the authority to take further action on the allegation that the Board\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n69573 o 2c1 proper sd\ncc:\n\nVia electronic mail\n\nMr. John Izzo\nAttorney for Brookfield LaGrange Park School District 95\n\nPetrarca, Gleason, Boyle & Izzo, LLC\n19730 Governors Highway – Suite 10\n\nFlossmoor, Illinois 60422\njizzo@petrarcagleason.com"}
{"id":1368,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-02-09","case_number":null,"request_numbers":["69602"],"title":"Proviso Township School Board remote meeting denial not an OMA violation","filename":"69602, issued February 9, 2022.pdf","rel_path":null,"word_count":1100,"summary":"A Board of Education member alleged that the Board violated the Open Meetings Act by denying her request to attend a meeting remotely due to illness and by limiting her access to board communications. The PAC determined that the allegations regarding internal board communications and the superintendent's conduct fall outside the scope of the Open Meetings Act.","plain_summary":"A school board member complained that she was not allowed to attend a meeting remotely when she was sick and that the superintendent was unfairly limiting her access to information. The Attorney General's office reviewed the complaint and decided they could not take action because these specific issues—internal board communication and administrative management—are not governed by the Open Meetings Act. The file was closed without a finding of a violation.","holding":"The PAC concluded that no further action is warranted because the allegations regarding the superintendent's communication practices do not constitute a violation of the Open Meetings Act.","legal_question":"Whether a school board's denial of a member's request to attend a meeting remotely and a superintendent's alleged restriction of communications with a board member constitute violations of the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Proviso Township High Schools District No. 209 Board of Education","requesting_party":"Claudia Medina","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"remote meeting","subject_description":"A board member alleged that she was improperly denied remote attendance at a meeting and that the superintendent restricted her access to board documents.","ocr_status":"reocr_tesseract","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_a_b_c/69602, issued February 9, 2022.pdf","sha256":"a1803b3f76b636f799a6823553004a64771c8065a7a1d931fa5ae69ace7d6a9f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","school board","board member rights","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 9, 2022\n\nVia electronic mail\nThe Honorable Claudia Medina\nMember\nBoard of Education\nProviso Township High Schools District No. 209\ncmedina@pths209. org\nRE: OMA Request for Review – 2022 PAC 69602\nDear Ms. Medina:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). On January 26, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Proviso Township High Schools District No.\n209 Board of Education ( Board) violated OMA by declining to permit you to attend its January\n11, 2022, meeting remotely. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted as to this matter.\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you became ill on January 11, 2022, and immediately notified the Superintendent\nand Board President of your illness and requested to attend the January 11, 2022, meeting\nremotely. You stated that despite your request, you were not given a link to join the meeting\nremotely. You also alleged that the Superintendent \" has consistently communicated with 6 of\nthe 7 board members, and has ensured not to send, documents to me, Claudia Medina, a sitting\nboard member[,]\" and has otherwise limited his communications with you. 1 You alleged that the\nSuperintendent' s practices prevent you from being able to do your job as a Board member.\n\n1E- mail from Claudia Medina, Board Member Proviso District 209, to [ Jane] Sternecky, et al.\nJanuary 26, 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Claudia Medina\nFebruary 9, 2022\nPage 2\n\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body's meeting by a means other than physical presence. It states, in\nrelevant part:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\nb) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/ 7(a), ( b), (c) (West 2020). ( Emphasis added.)\nNotably, the language in sections 7(a) and 7(c) that \" a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). Further, section 7(c) allows a public body to create its own rules that may further restrict\nthe extent to which remote attendance is permitted beyond the limitations described in OMA.\nSection 2:220 of the Board' s Policy Manual states, in relevant part, that\nA quorum of the Board must be physically present at all Board\nmeetings. A majority of the full membership of the Board of\nEducation constitutes a quorum. Provided a quorum is physically\npresent, a Board member, provided he or she has received\npermission from the Board President, may attend a meeting by\nvideo or audio conference if he or she is prevented from physically\n\n\fhe Honorable Claudia Medina\nFebruary 9, 2022\nPage 3\n\nattending because of: (1) personal illness or disability, ( 2)\nemployment of District business, or (3) a family or other\nemergency. If a member wishes to attend a meeting by video or\naudio means, he or she must notify the recording secretary or\nSuperintendent at least 24 hours before the meeting unless advance\nnotice is impractical. The recording secretary or Superintendent\nwill inform the Board President of the request and make\nappropriate arrangements.[ 2] ( Emphasis added.)\nThe Board' s Policy requires the Board President to first grant permission before a Board member\nsuffering from illness may participate in a meeting by alternative means. Presumably, if the\nBoard President gives permission, the Board takes a vote at the meeting on whether to allow that\nBoard member to participate remotely. Because OMA gives public bodies discretion on whether\nto permit members to participate remotely, the Board President was not required to allow you to\nattend the January 11, 2022, meeting by video or audio conference.\nYour other contentions concerning the communications practices of the\nSuperintendent do not allege a violation of OMA, and therefore are not subject to review by this\noffice. See 5 ILCS 120/ 3.5(a) ( West 2020) (\"[ a] person who believes that a violation of this Act\nby a public body has occurred may file a request for review with the Public Access Counselor[,]\"\nand that the submission \" must include a summary of the facts supporting the allegation.\"); 15\nILCS 205/ 7(c)(3) (West 2020) ( the Public Access Counselor' s authority to resolve disputes is\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq.\nWest 2020)).\nThis letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n69602 o no fi war sd\n\n2Proviso Township High Schools District 209, Board Policy Manual, § 2:220 Quorum,\nhttps:// boardpolicyonline. com/? b=proviso_ 209.\n\n\fhe Honorable Claudia Medina\nFebruary 9, 2022\nPage 4\n\ncc:\n\nVia electronic mail\nThe Honorable Rodney Alexander\nPresident\nBoard of Education\nProviso Township High Schools District No. 209\n8601 Roosevelt Road\nForest Park, Illinois 60130\nralexander@pths209. org\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 9, 2022\n\nVia electronic mail\nThe Honorable Claudia Medina\nMember\nBoard of Education\nProviso Township High Schools District No. 209\ncmedina@pths209. org\nRE: OMA Request for Review – 2022 PAC 69602\nDear Ms. Medina:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). On January 26, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Proviso Township High Schools District No.\n209 Board of Education (Board) violated OMA by declining to permit you to attend its January\n11, 2022, meeting remotely. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted as to this matter.\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you became ill on January 11, 2022, and immediately notified the Superintendent\nand Board President of your illness and requested to attend the January 11, 2022, meeting\nremotely. You stated that despite your request, you were not given a link to join the meeting\nremotely. You also alleged that the Superintendent \" has consistently communicated with 6 of\nthe 7 board members, and has ensured not to send, documents to me, Claudia Medina, a sitting\nboard member[,]\" and has otherwise limited his communications with you. 1 You alleged that the\nSuperintendent's practices prevent you from being able to do your job as a Board member.\n\n1E- mail from Claudia Medina, Board Member Proviso District 209, to [ Jane] Sternecky, et al.\nJanuary 26, 2022).\n\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body's meeting by a means other than physical presence. It states, in\nrelevant part:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\nb) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/ 7(a), (b), (c) (West 2020). (Emphasis added.)\nNotably, the language in sections 7(a) and 7(c) that \" a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). Further, section 7(c) allows a public body to create its own rules that may further restrict\nthe extent to which remote attendance is permitted beyond the limitations described in OMA.\nSection 2:220 of the Board's Policy Manual states, in relevant part, that\nA quorum of the Board must be physically present at all Board\n\nattending because of: (1) personal illness or disability, (2)\nemployment of District business, or (3) a family or other\nemergency. If a member wishes to attend a meeting by video or\naudio means, he or she must notify the recording secretary or\nSuperintendent at least 24 hours before the meeting unless advance\nnotice is impractical. The recording secretary or Superintendent\nwill inform the Board President of the request and make\nappropriate arrangements.[ 2] (Emphasis added.)\nThe Board's Policy requires the Board President to first grant permission before a Board member\nsuffering from illness may participate in a meeting by alternative means. Presumably, if the\nBoard President gives permission, the Board takes a vote at the meeting on whether to allow that\nBoard member to participate remotely. Because OMA gives public bodies discretion on whether\nto permit members to participate remotely, the Board President was not required to allow you to\nattend the January 11, 2022, meeting by video or audio conference.\nYour other contentions concerning the communications practices of the\nSuperintendent do not allege a violation of OMA, and therefore are not subject to review by this\noffice. See 5 ILCS 120/ 3.5(a) (West 2020) (\"[ a] person who believes that a violation of this Act\nby a public body has occurred may file a request for review with the Public Access Counselor[,]\"\nand that the submission \" must include a summary of the facts supporting the allegation.\"); 15\nILCS 205/ 7(c)(3) (West 2020) (the Public Access Counselor's authority to resolve disputes is\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq.\nWest 2020)).\nThis letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\n\ncc:\n\nVia electronic mail\nThe Honorable Rodney Alexander\nPresident\nBoard of Education\nProviso Township High Schools District No. 209\n8601 Roosevelt Road\nForest Park, Illinois 60130\nralexander@pths209. org","plain_summary_pre_resummarize":null,"card_headline":"A school board member's remote attendance and access to documents","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69602/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nFebruary 9, 2022\n\nVia electronic mail\n\nThe Honorable Claudia Medina\n\nMember\n\nBoard of Education\n\nProviso Township High Schools District No. 209\ncmedina@pths209.org\n\nRE: OMA Request for Review — 2022 PAC 69602\nDear Ms. Medina:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(b) (West 2020)). On January 26, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Proviso Township High Schools District No.\n209 Board of Education (Board) violated OMA by declining to permit you to attend its January\n11, 2022, meeting remotely. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted as to this matter.\n\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you became ill on January 11, 2022, and immediately notified the Superintendent\nand Board President of your illness and requested to attend the January 11, 2022, meeting\nremotely. You stated that despite your request, you were not given a link to join the meeting\nremotely. You also alleged that the Superintendent \"has consistently communicated with 6 of\nthe 7 board members, and has ensured not to send, documents to me, Claudia Medina, a sitting\nboard member[,]\" and has otherwise limited his communications with you.' You alleged that the\nSuperintendent's practices prevent you from being able to do your job as a Board member.\n\n‘E-mail from Claudia Medina, Board Member Proviso District 209, to [Jane] Sternecky, et al.\n(January 26, 2022).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nThe Honorable Claudia Medina\nFebruary 9, 2022\nPage 2\n\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body's meeting by a means other than physical presence. It states, in\nrelevant part:\n\n(a) Ifa quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (i) personal illness or disability;\n(11) employment purposes or the business of the public body; or\n(111) a family or other emergency. \"Other means\" is by video or\naudio conference.\n\n(b) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\n\n(c) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/7(a), (b), (c) (West 2020). (Emphasis added.)\n\nNotably, the language in sections 7(a) and 7(c) that \"a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). Further, section 7(c) allows a public body to create its own rules that may further restrict\nthe extent to which remote attendance is permitted beyond the limitations described in OMA.\nSection 2:220 of the Board's Policy Manual states, in relevant part, that\n\nA quorum of the Board must be physically present at all Board\nmeetings. A majority of the full membership of the Board of\nEducation constitutes a quorum. Provided a quorum is physically\npresent, a Board member, provided he or she has received\npermission from the Board President, may attend a meeting by\nvideo or audio conference if he or she is prevented from physically\n\nThe Honorable Claudia Medina\nFebruary 9, 2022\nPage 3\n\nattending because of: (1) personal illness or disability, (2)\nemployment of District business, or (3) a family or other\nemergency. If a member wishes to attend a meeting by video or\naudio means, he or she must notify the recording secretary or\nSuperintendent at least 24 hours before the meeting unless advance\nnotice is impractical. The recording secretary or Superintendent\nwill inform the Board President of the request and make\nappropriate arrangements.”?! (Emphasis added.)\n\nThe Board's Policy requires the Board President to first grant permission before a Board member\nsuffering from illness may participate in a meeting by alternative means. Presumably, if the\nBoard President gives permission, the Board takes a vote at the meeting on whether to allow that\nBoard member to participate remotely. Because OMA gives public bodies discretion on whether\nto permit members to participate remotely, the Board President was not required to allow you to\nattend the January 11, 2022, meeting by video or audio conference.\n\nYour other contentions concerning the communications practices of the\nSuperintendent do not allege a violation of OMA, and therefore are not subject to review by this\noffice. See 5 ILCS 120/3.5(a) (West 2020) (\"[a] person who believes that a violation of this Act\nby a public body has occurred may file a request for review with the Public Access Counselor], |\"\nand that the submission \"must include a summary of the facts supporting the allegation.\"); 15\nILCS 205/7(c)(3) (West 2020) (the Public Access Counselor's authority to resolve disputes is\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/1 et seq.\n(West 2020)).\n\nThis letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura.Harter@ilag.gov.\n\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n69602 o no fi war sd\n\nProviso Township High Schools District 209, Board Policy Manual, §2:220 Quorum,\nhttps://boardpolicyonline.com/?b=proviso_209.\n\nThe Honorable Claudia Medina\nFebruary 9, 2022\n\nPage 4\n\nce: Via electronic mail\nThe Honorable Rodney Alexander\nPresident\n\nBoard of Education\n\nProviso Township High Schools District No. 209\n8601 Roosevelt Road\n\nForest Park, Illinois 60130\nralexander@pths209.org"}
{"id":1369,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-10","case_number":null,"request_numbers":["69969"],"title":"Sauk Village Board trustee complaint over remote closed session access closed for lack of facts","filename":"69969, issued March 10, 2022.pdf","rel_path":null,"word_count":1203,"summary":"A Village Trustee alleged the Board of Trustees violated the Open Meetings Act by denying his request to participate in a closed session meeting remotely. The PAC determined that the requester failed to provide sufficient facts to support an allegation of an OMA violation.","plain_summary":"A village trustee complained to the Attorney General's office after he was not allowed to join a closed-door meeting remotely. The Attorney General's office reviewed the complaint and decided not to take any action, noting that the trustee did not provide enough evidence or facts to show that the village actually broke the law.","holding":"The PAC concluded that no further action is warranted because the requester did not allege that the Board took final action during the closed session or otherwise provide facts supporting a violation.","legal_question":"Whether a public body violates the Open Meetings Act by denying a member's request to participate in a closed session remotely when no final action is alleged to have occurred.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sauk Village Board of Trustees","requesting_party":"Gary Bell","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The denial of a trustee's request to attend a closed session meeting via remote participation.","ocr_status":"reocr_tesseract","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_a_b_c/69969, issued March 10, 2022.pdf","sha256":"2f163abfee18a5664b8eb692489b61685e2ee8ffc17941d98c8c8b3c7ef8ca2e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","closed session","trustee","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 10, 2022\n\nVia electronic mail\nThe Honorable Gary Bell\nTrustee\nBoard of Trustees\nVillage of Sauk Village\n\nRE: OMA Request for Review – 2022 PAC 69969\nDear Mr. Bell:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) (West 2020)). On February 17, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Village of Sauk Village ( Village) Board of\nTrustees ( Board) violated OMA by declining to permit you to participate remotely in the closed\nsession of its February 15, 2022, Committee of the Whole meeting. 1 For the reasons set forth\nbelow, the Public Access Bureau concludes that no further action is warranted as to this matter.\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you were permitted to attend remotely the open session of the Board' s in-person\nCommittee of the Whole meeting, but that despite your request, you were not permitted to attend\nremotely the closed session.\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body' s meeting by a means other than physical presence. It states, in\nrelevant part:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\n1Although you stated that the Committee of the Whole meeting occurred on February 16, 2022,\nthe agenda for the meeting stated that it occurred on February 15, 2022. Village of Sauk Village, Committee of the\nWhole, Agenda ( February 15, 2022), https:// www.saukvillage. org/Agendas/ 2022/ 2022_ Agendas. pdf.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Gary Bell\nMarch 10, 2022\nPage 2\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\nb) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/ 7(a), ( b), (c) ( West 2020). ( Emphasis added.)\nNotably, the language in sections 7(a) and 7(c) that \" a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 69602, issued February 9, 2022, at 2-3 (OMA gives\npublic bodies discretion on whether to permit members to participate remotely). Further, section\n7(c) allows a public body to create its own rules that may further restrict the extent to which\nremote attendance is permitted beyond the limitations described in OMA. Section 2-555 of the\nVillage' s Code of Ordinances provides the Board' s remote attendance rules of procedure. 2 It\nstates, in relevant part, that \"[ a] member of the board of trustees attending a meeting by remote\nmeans shall * * * [ n]ot participate in or observe a closed session.\" 3\n\n2Village of Saul Village, Code of Ordinances, § 2-555,\nhttps:// library. municode. com/ il/sauk_ village/ codes/ code_ of_ordinances? nodeId= MUCO_ CH2AD_ ARTVIIREATP\nO_S2-555RUPRWHREATUT.\n3Village of Saul Village, Code of Ordinances, § 2-555( b)( 4),\nhttps:// library.municode. com/il/sauk_ village/ codes/ code_ of_ordinances? nodeId= MUCO_ CH2AD_ ARTVIIREATP\nO_S2-555RUPRWHREATUT.\n\n\fhe Honorable Gary Bell\nMarch 10, 2022\nPage 3\n\nIn your Request for Review, you contend that section 2.01 of OMA (5 ILCS\n120/ 2.01 (West 2020)) allows for remote participation in closed sessions and is in conflict with\nsection 2-555( b)(4) of the Village Code. Section 2.01 is permissive, however, stating that\no] ther members who are not physically present at a closed meeting of such a public body may\nparticipate in the meeting by means of a video or audio conference.\" ( Emphasis added.)\nAccordingly, a public body is permitted to allow a member to attend a closed session remotely,\nbut is not required to do so. Because OMA gives public bodies discretion on whether to permit\nmembers to participate remotely, the Board was not required to allow you to attend the February\n15, 2022, closed session meeting by video or audio conference.\nYou also alleged that \" the Village Board was apparently ' polled' or effective voted\nin closed session regarding an employment matter. No votes or polling is permitted to take place\nin closed session under Illinois law.\" 4 Section 2(e) of OMA (5 ILCS 120/ 2(e) ( West 2020))\nprovides: \" No final action may be taken at a closed meeting. Final action shall be preceded by a\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\" It does not violate OMA for a public body to take a\npreliminary vote in closed session followed by a final vote in open session. See Board of\nEducation of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343,\n73, 77 N.E.3d at 637 ( 2017) (\"[ T]he statute contains no bar to a public body's taking a\npreliminary vote at a closed meeting.\"). Although you alleged that the Board took a poll on an\nemployment matter during the February 15, 2022, closed session, you did not allege that the\nBoard took final action on that employment matter. Accordingly, your contention does not\nprovide facts supporting the allegation that the Board violated OMA. See 5 ILCS 120/ 3.5(a)\nWest 2020) (\"[ a] person who believes that a violation of this Act by a public body has occurred\nmay file a request for review with the Public Access Counselor[,]\" and that the submission \" must\ninclude a summary of the facts supporting the allegation.\").\nTherefore, this office has determined that no further action is warranted in this\nmatter. This letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n4E-mail from Gary Bell, Sauk Village Trustee, to Public Access Counselor, Illinois Attorney\nGeneral ( February 17, 2022).\n\n\fThe Honorable Gary Bell\nMarch 10, 2022\nPage 4\n\n69969 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Derek Burgess\nMayor\nVillage of Sauk Village\n21801 Torrence Ave\nSauk Village, Illinois 60411\nDburgess@saukvillage. org\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 10, 2022\n\nVia electronic mail\nThe Honorable Gary Bell\nTrustee\nBoard of Trustees\nVillage of Sauk Village\n\nRE: OMA Request for Review – 2022 PAC 69969\nDear Mr. Bell:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). On February 17, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Village of Sauk Village (Village) Board of\nTrustees (Board) violated OMA by declining to permit you to participate remotely in the closed\nsession of its February 15, 2022, Committee of the Whole meeting. 1 For the reasons set forth\nbelow, the Public Access Bureau concludes that no further action is warranted as to this matter.\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you were permitted to attend remotely the open session of the Board's in-person\nCommittee of the Whole meeting, but that despite your request, you were not permitted to attend\nremotely the closed session.\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body's meeting by a means other than physical presence. It states, in\nrelevant part:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\n1 Although you stated that the Committee of the Whole meeting occurred on February 16, 2022,\nthe agenda for the meeting stated that it occurred on February 15, 2022. Village of Sauk Village, Committee of the\nWhole, Agenda (February 15, 2022), https:// www.saukvillage. org/Agendas/ 2022/ 2022_ Agendas. pdf.\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\nb) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\nc) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/ 7(a), (b), (c) (West 2020). (Emphasis added.)\nNotably, the language in sections 7(a) and 7(c) that \" a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 69602, issued February 9, 2022, at 2-3 (OMA gives\npublic bodies discretion on whether to permit members to participate remotely). Further, section\n7(c) allows a public body to create its own rules that may further restrict the extent to which\nremote attendance is permitted beyond the limitations described in OMA. Section 2-555 of the\nVillage's Code of Ordinances provides the Board's remote attendance rules of procedure. 2 It\nstates, in relevant part, that \"[ a] member of the board of trustees attending a meeting by remote\nmeans shall * * * [ n]ot participate in or observe a closed session.\" 3\n\n2 Village of Saul Village, Code of Ordinances, § 2-555,\nhttps:// library. municode. com/ il/sauk_ village/ codes/ code_ of_ordinances? nodeId= MUCO_ CH2AD_ ARTVIIREATP\nO_S2-555RUPRWHREATUT.\n3 Village of Saul Village, Code of Ordinances, § 2-555(b)(4),\nhttps:// library.municode. com/il/sauk_ village/ codes/ code_ of_ordinances? nodeId= MUCO_ CH2AD_ ARTVIIREATP\n\nIn your Request for Review, you contend that section 2.01 of OMA (5 ILCS\n120/ 2.01 (West 2020)) allows for remote participation in closed sessions and is in conflict with\nsection 2-555(b)(4) of the Village Code. Section 2.01 is permissive, however, stating that\no] ther members who are not physically present at a closed meeting of such a public body may\nparticipate in the meeting by means of a video or audio conference.\" (Emphasis added.)\nAccordingly, a public body is permitted to allow a member to attend a closed session remotely,\nbut is not required to do so. Because OMA gives public bodies discretion on whether to permit\nmembers to participate remotely, the Board was not required to allow you to attend the February\n15, 2022, closed session meeting by video or audio conference.\nYou also alleged that \" the Village Board was apparently ' polled' or effective voted\nin closed session regarding an employment matter. No votes or polling is permitted to take place\nin closed session under Illinois law.\" 4 Section 2(e) of OMA (5 ILCS 120/ 2(e) (West 2020))\nprovides: \" No final action may be taken at a closed meeting. Final action shall be preceded by a\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\" It does not violate OMA for a public body to take a\npreliminary vote in closed session followed by a final vote in open session. See Board of\nEducation of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343,\n73, 77 N.E.3d at 637 (2017) (\"[ T]he statute contains no bar to a public body's taking a\npreliminary vote at a closed meeting.\"). Although you alleged that the Board took a poll on an\nemployment matter during the February 15, 2022, closed session, you did not allege that the\nBoard took final action on that employment matter. Accordingly, your contention does not\nprovide facts supporting the allegation that the Board violated OMA. See 5 ILCS 120/ 3.5(a)\nWest 2020) (\"[ a] person who believes that a violation of this Act by a public body has occurred\nmay file a request for review with the Public Access Counselor[,]\" and that the submission \" must\ninclude a summary of the facts supporting the allegation.\").\nTherefore, this office has determined that no further action is warranted in this\nmatter. This letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura. Harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n4E-mail from Gary Bell, Sauk Village Trustee, to Public Access Counselor, Illinois Attorney\n\n69969 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Derek Burgess\nMayor\nVillage of Sauk Village\n21801 Torrence Ave\nSauk Village, Illinois 60411\nDburgess@saukvillage. org","plain_summary_pre_resummarize":null,"card_headline":"A village board trustee's request to attend a closed session remotely","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69969/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nMarch 10, 2022\n\nVia electronic mail\n\nThe Honorable Gary Bell\nTrustee\n\nBoard of Trustees\n\ni\nRE: OMA Request for Review — 2022 PAC 69969\nDear Mr. Bell:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(b) (West 2020)). On February 17, 2022, the Public Access Bureau\nreceived your Request for Review alleging that the Village of Sauk Village (Village) Board of\nTrustees (Board) violated OMA by declining to permit you to participate remotely in the closed\nsession of its February 15, 2022, Committee of the Whole meeting.' For the reasons set forth\nbelow, the Public Access Bureau concludes that no further action is warranted as to this matter.\n\nIn your Request for Review, you explained that you are a member of the Board.\nYou stated that you were permitted to attend remotely the open session of the Board's in-person\nCommittee of the Whole meeting, but that despite your request, you were not permitted to attend\nremotely the closed session.\n\nSection 7 of OMA describes, among other things, when a public body member\nmay attend a public body's meeting by a means other than physical presence. It states, in\nrelevant part:\n\n(a) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\n\n‘Although you stated that the Committee of the Whole meeting occurred on February 16, 2022,\nthe agenda for the meeting stated that it occurred on February 15, 2022. Village of Sauk Village, Committee of the\nWhole, Agenda (February 15, 2022), https://www.saukvillage.org/Agendas/2022/2022 Agendas.pdf.\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nThe Honorable Gary Bell\nMarch 10, 2022\nPage 2\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\nphysically attending because of: (1) personal illness or disability;\n(11) employment purposes or the business of the public body; or\n(111) a family or other emergency. \"Other means\" is by video or\naudio conference.\n\n(b) If a member wishes to attend a meeting by other\nmeans, the member must notify the recording secretary or clerk of\nthe public body before the meeting unless advance notice is\nimpractical.\n\n(c) A majority of the public body may allow a member to\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules must\nconform to the requirements and restrictions of this Section, may\nfurther limit the extent to which attendance by other means is\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. 5 ILCS\n120/7(a), (b), (c) (West 2020). (Emphasis added.)\n\nNotably, the language in sections 7(a) and 7(c) that \"a majority of the public body\nmay allow a member\" to attend by other means is permissive, not mandatory. Therefore, a\npublic body is not required to permit a member to attend a meeting remotely even if that member\nis unable to attend the meeting in person because of one of the reasons enumerated in section\n7(a). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 69602, issued February 9, 2022, at 2-3 (OMA gives\npublic bodies discretion on whether to permit members to participate remotely). Further, section\n7(c) allows a public body to create its own rules that may further restrict the extent to which\nremote attendance is permitted beyond the limitations described in OMA. Section 2-555 of the\nVillage's Code of Ordinances provides the Board's remote attendance rules of procedure.” It\nstates, in relevant part, that \"[a] member of the board of trustees attending a meeting by remote\nmeans shall * * * [nJot participate in or observe a closed session.\"\n\nVillage of Saul Village, Code of Ordinances, § 2-555,\nhttps://library.municode.com/il/sauk_village/codes/code_of_ordinances?nodeld=MUCO_CH2AD_ ARTVIIREATP\nO_S2-555RUPRWHREATUT.\n\nVillage of Saul Village, Code of Ordinances, § 2-555(b)(4),\nhttps://library.municode.com/il/sauk_village/codes/code_of_ordinances?nodeld=MUCO_CH2AD ARTVIIREATP\nO_S2-555RUPRWHREATUT.\n\nThe Honorable Gary Bell\nMarch 10, 2022\nPage 3\n\nIn your Request for Review, you contend that section 2.01 of OMA (5 ILCS\n120/2.01 (West 2020)) allows for remote participation in closed sessions and is in conflict with\nsection 2-555(b)(4) of the Village Code. Section 2.01 is permissive, however, stating that\n\"[o]ther members who are not physically present at a closed meeting of such a public body may\nparticipate in the meeting by means of a video or audio conference.\" (Emphasis added.)\nAccordingly, a public body is permitted to allow a member to attend a closed session remotely,\nbut is not required to do so. Because OMA gives public bodies discretion on whether to permit\nmembers to participate remotely, the Board was not required to allow you to attend the February\n15, 2022, closed session meeting by video or audio conference.\n\nYou also alleged that \"the Village Board was apparently 'polled' or effective voted\nin closed session regarding an employment matter. No votes or polling is permitted to take place\nin closed session under Illinois law.\"* Section 2(e) of OMA (5 ILCS 120/2(e) (West 2020))\nprovides: \"No final action may be taken at a closed meeting. Final action shall be preceded by a\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\" It does not violate OMA for a public body to take a\npreliminary vote in closed session followed by a final vote in open session. See Board of\nEducation of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343,\n4/73, 77 N.E.3d at 637 (2017) (\"[T]he statute contains no bar to a public body's taking a\npreliminary vote at a closed meeting.\"). Although you alleged that the Board took a poll on an\nemployment matter during the February 15, 2022, closed session, you did not allege that the\nBoard took final action on that employment matter. Accordingly, your contention does not\nprovide facts supporting the allegation that the Board violated OMA. See 5 ILCS 120/3.5(a)\n(West 2020) (\"[a] person who believes that a violation of this Act by a public body has occurred\nmay file a request for review with the Public Access Counselor[,|\" and that the submission \"must\ninclude a summary of the facts supporting the allegation.\").\n\nTherefore, this office has determined that no further action is warranted in this\nmatter. This letter closes this file. If you have any questions, you may contact me at the\nSpringfield address on the first page of this letter or Laura.Harter@ilag.gov.\n\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n4E-mail from Gary Bell, Sauk Village Trustee, to Public Access Counselor, Illinois Attorney\nGeneral (February 17, 2022).\n\nThe Honorable Gary Bell\nMarch 10, 2022\nPage 4\n\n69969 o no fi war mun\n\nCe: Via electronic mail\nThe Honorable Derek Burgess\nMayor\nVillage of Sauk Village\n21801 Torrence Ave\nSauk Village, Illinois 60411\nDburgess@saukvillage.org"}
{"id":1370,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-15","case_number":null,"request_numbers":["70010"],"title":"Board of Education of Algonquin CUSD 300 remote meeting complaint dismissed as premature","filename":"70010, issued March 15, 2022.pdf","rel_path":null,"word_count":1022,"summary":"The requester alleged that a school board's planned remote meeting was improper, but the PAC determined the request was premature because it was filed before the meeting occurred.","plain_summary":"A citizen complained to the Attorney General about a school board's plan to hold a remote meeting. The Attorney General's office closed the case because the complaint was filed before the meeting even happened, meaning no violation could have occurred yet. Additionally, the office noted that public bodies have the authority to decide if remote meetings are necessary during a disaster declaration.","holding":"The PAC took no further action because the Request for Review was filed before the meeting took place and therefore could not allege an actual violation.","legal_question":"Whether a Request for Review filed prior to the occurrence of a public meeting can establish a violation of the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of the Algonquin Community Unit School District No. 300","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The requester challenged the school board's decision to hold a special meeting remotely during a gubernatorial disaster declaration.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_e/70010, issued March 15, 2022.pdf","sha256":"632b24a381dc2c8f8cb90af2b5e358c94218dd6ef39fadbc4fbb1c0820185364","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","Open Meetings Act","disaster declaration","school board"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 15, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70010\nDear\nThe Public Access Bureau received your February 18, 2022, Request for Review\nalleging potential violations of the Open Meetings Act (OMA) ( 5 ILCS 120/ 1 et seq. ( West\n2020)) by the Board of Education of the Algonquin Community Unit School District No. 300\nBoard). Specifically, your Request for Review alleged that the Board was \" lying regarding\nthreats and pandemic concerns\" and should not hold its February 20, 2022, special meeting\nremotely. 1\nThe Public Access Counselor' s authority to resolve disputes is limited to alleged\nviolations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. ( West 2020)). See\n15 ILCS 205/ 7(c)(3) (West 2020). Section 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020))\nprovides that \"[ a] person who believes that a violation of this Act by a public body has occurred\nmay file a request for review with the Public Access Counselor[,]\" and that the submission \" must\ninclude a summary of the facts supporting the allegation.\"\nYou submitted your Request for Review to this office via e-mail on February 18,\n2022, which was before the February 20, 2022, meeting was scheduled to commence. No\nviolation related to any February 20, 2022, meeting could have occurred until the meeting took\nplace. In particular, the meeting could have been cancelled. Because you submitted your\nRequest for Review before the Board held its special meeting scheduled for February 20, 2022,\nyour submission was premature.\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a),\n1E- mail from\n\nto Public [ A]ccess [ C]ounselor ( February 18, 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMarch 15, 2022\nPage 2\n\nb), (c) ( West 2020). This office notes that section 7(e) of OMA ( 5 ILCS 120/ 7(e) ( West 2020)),\nsets forth the requirements for meetings held remotely because of a public health emergency.\nSections 7(e)( 1) and 7(e)( 2) provide, in pertinent part:\ne) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or video\nconference, without the physical presence of a quorum of the\nmembers, so long as the following conditions are met:\n1) the Governor or the Director of the Illinois\nDepartment of Public Health has issued a disaster\ndeclaration related to public health concerns because of a\ndisaster as defined in Section 4 of the Illinois Emergency\nManagement Agency Act, and all or part of the jurisdiction\nof the public body is covered by the disaster area;\n2) the head of the public body as defined in\nsubsection ( e) of Section 2 of the Freedom of Information\nAct determines that an in-person meeting or a meeting\nconducted under this Act is not practical or prudent because\nof a disaster[.]\nAs referenced in your Request for Review, in advance of the February 20, 2022, meeting, a\nnotice on the School District website stated:\nThe District 300 Board of Education will host a Virtual Special\nBoard Meeting on Sunday, February 20, 2022 at 6 p.m.\nAn in-person meeting is not practical or prudent at this time\nbecause of pandemic related concerns. The District 300 Board of\nEducation has received argumentative and divisive\ncommunications that have raised concerns about the safety of\nmembers of the public who would attend this Board Meeting. For\nthese reasons, this Special Meeting will be conducted in a virtual\nformat and can be viewed on the District 300 YouTube channel.[ 2]\n\n2District 300, District 300 Board of Education to Host Virtual Special Board Meeting on February\n20th at 6 p.m., available at\nhttps:// www. d300. org/site/ default. aspx? PageType= 3& DomainID= 4& ModuleInstanceID= 2649& ViewID= dc687af4502e- 40ec- afcc- 878bbf4f560b& RenderLoc= 0& FlexDataID= 19821& PageID= 1.\n\n\fMarch 15, 2022\nPage 3\n\nThe School District also provided a link to the special meeting agenda and instructions for how\nto submit written comments to be read during the meeting.\nBased on the language on the School District' s website, it appears that a\ndetermination was made pursuant to section 7(e)( 2) of OMA that an in-person meeting on\nFebruary 20, 2022, would not be practical or prudent because of circumstances brought about by\nthe COVID- 19 public health disaster. Although you dispute the basis for this determination,\nsection 7(e) affords public bodies the flexibility to determine for themselves the best method to\nbalance public health concerns while also facilitating the attendance of their members and\naccommodating public participation when a Gubernatorial disaster declaration related to public\nhealth concerns is in effect, as it was at the time of the Board' s February 20, 2022, meeting. 3\nSection 7(e)( 2) of OMA does not set forth criteria that must be satisfied to justify the\ndetermination by the head of the public body that an in-person meeting is not practical or\nprudent, or otherwise provide a basis for the Public Access Counselor to evaluate the\nreasonableness of the determination.\nFor the reasons stated above, this office will take no further action as to this\nmatter and this letter closes this file. If you have any questions, you may contact me at\nlaura. harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n70010 o no fi war sd\ncc:\n\nVia electronic mail\nDr. David Scarpino\nPresident, Board of Education\nAlgonquin Community Unit School District # 300\n2550 Harnish Drive\nAlgonquin, Illinois 60102\ndavid. scarpino1@d300. org\n\n3Gubernatorial Disaster Proclamation issued February 4, 2022.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's remote special meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70010/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 15, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70010\nDear\nThe Public Access Bureau received your February 18, 2022, Request for Review\nalleging potential violations of the Open Meetings Act (OMA) (5 ILCS 120/ 1 et seq. (West\n2020)) by the Board of Education of the Algonquin Community Unit School District No. 300\nBoard). Specifically, your Request for Review alleged that the Board was \" lying regarding\nthreats and pandemic concerns\" and should not hold its February 20, 2022, special meeting\nremotely. 1\nThe Public Access Counselor's authority to resolve disputes is limited to alleged\nviolations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2020)). See\n15 ILCS 205/ 7(c)(3) (West 2020). Section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020))\nprovides that \"[ a] person who believes that a violation of this Act by a public body has occurred\nmay file a request for review with the Public Access Counselor[,]\" and that the submission \" must\ninclude a summary of the facts supporting the allegation.\"\nYou submitted your Request for Review to this office via e-mail on February 18,\n2022, which was before the February 20, 2022, meeting was scheduled to commence. No\nviolation related to any February 20, 2022, meeting could have occurred until the meeting took\nplace. In particular, the meeting could have been cancelled. Because you submitted your\nRequest for Review before the Board held its special meeting scheduled for February 20, 2022,\nyour submission was premature.\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a),\n1E- mail from\n\nto Public [ A]ccess [ C]ounselor (February 18, 2022).\n\nb), (c) (West 2020). This office notes that section 7(e) of OMA (5 ILCS 120/ 7(e) (West 2020)),\nsets forth the requirements for meetings held remotely because of a public health emergency.\nSections 7(e)(1) and 7(e)(2) provide, in pertinent part:\ne) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or video\nconference, without the physical presence of a quorum of the\nmembers, so long as the following conditions are met:\n1) the Governor or the Director of the Illinois\nDepartment of Public Health has issued a disaster\ndeclaration related to public health concerns because of a\ndisaster as defined in Section 4 of the Illinois Emergency\nManagement Agency Act, and all or part of the jurisdiction\nof the public body is covered by the disaster area;\n2) the head of the public body as defined in\nsubsection (e) of Section 2 of the Freedom of Information\nAct determines that an in-person meeting or a meeting\nconducted under this Act is not practical or prudent because\nof a disaster[.]\nAs referenced in your Request for Review, in advance of the February 20, 2022, meeting, a\nnotice on the School District website stated:\nThe District 300 Board of Education will host a Virtual Special\nBoard Meeting on Sunday, February 20, 2022 at 6 p.m.\nAn in-person meeting is not practical or prudent at this time\nbecause of pandemic related concerns. The District 300 Board of\nEducation has received argumentative and divisive\ncommunications that have raised concerns about the safety of\nmembers of the public who would attend this Board Meeting. For\nthese reasons, this Special Meeting will be conducted in a virtual\nformat and can be viewed on the District 300 YouTube channel.[ 2]\n\n2 District 300, District 300 Board of Education to Host Virtual Special Board Meeting on February\n20th at 6 p.m., available at\nhttps:// www. d300. org/site/ default. aspx? PageType= 3& DomainID= 4& ModuleInstanceID= 2649& ViewID= dc687af4502e- 40ec- afcc- 878bbf4f560b& RenderLoc= 0& FlexDataID= 19821& PageID= 1.\n\nThe School District also provided a link to the special meeting agenda and instructions for how\nto submit written comments to be read during the meeting.\nBased on the language on the School District's website, it appears that a\ndetermination was made pursuant to section 7(e)(2) of OMA that an in-person meeting on\nFebruary 20, 2022, would not be practical or prudent because of circumstances brought about by\nthe COVID- 19 public health disaster. Although you dispute the basis for this determination,\nsection 7(e) affords public bodies the flexibility to determine for themselves the best method to\nbalance public health concerns while also facilitating the attendance of their members and\naccommodating public participation when a Gubernatorial disaster declaration related to public\nhealth concerns is in effect, as it was at the time of the Board's February 20, 2022, meeting. 3\nSection 7(e)(2) of OMA does not set forth criteria that must be satisfied to justify the\ndetermination by the head of the public body that an in-person meeting is not practical or\nprudent, or otherwise provide a basis for the Public Access Counselor to evaluate the\nreasonableness of the determination.\nFor the reasons stated above, this office will take no further action as to this\nmatter and this letter closes this file. If you have any questions, you may contact me at\nlaura. harter@ilag. gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n70010 o no fi war sd\ncc:\n\nVia electronic mail\nDr. David Scarpino\nPresident, Board of Education\nAlgonquin Community Unit School District # 300\n2550 Harnish Drive\nAlgonquin, Illinois 60102\ndavid. scarpino1@d300. org\n\n3 Gubernatorial Disaster Proclamation issued February 4, 2022."}
{"id":1371,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-18","case_number":null,"request_numbers":["70125"],"title":"Village of Hillside Board of Trustees no violation for 48-hour agenda posting not requiring business hours","filename":"70125, issued March 18, 2022.pdf","rel_path":null,"word_count":994,"summary":"The requester alleged that the Village of Hillside Board of Trustees violated the Open Meetings Act by failing to post a meeting agenda at least 48 business hours before a meeting, but the PAC determined the statute does not require 'business' hours for this calculation.","plain_summary":"A citizen complained that a local government board failed to post their meeting agenda early enough before a meeting. The Attorney General's office explained that the law requires agendas to be posted 48 hours in advance, but it does not specify that those must be 'business' hours. Because the law does not include the 'business hours' requirement, the PAC closed the case with no further action.","holding":"The PAC concluded that no violation occurred because the Open Meetings Act does not require agendas to be posted 48 'business' hours in advance of a meeting.","legal_question":"Does section 2.02(a) of the Open Meetings Act require public bodies to post meeting agendas at least 48 'business' hours before a regular meeting?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Hillside Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The timing requirements for posting agendas for regular public meetings under the Open Meetings Act.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/70125, issued March 18, 2022.pdf","sha256":"5e5bf664f009145ca5388c43de17deae112857d0208e3073f48d570eb4b787b2","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","notice requirements","Open Meetings Act","48-hour rule"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 18, 2022\n\nVia electronic mail\n\nRE:\n\nOMA Request for Review – 2022 PAC 70125\n\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that no further action is warranted in this matter.\nSection 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020)) provides:\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\n\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * *\n\nmust include a summary of the facts\n\nsupporting the allegation. (Emphasis added.)\nOn February 25, 2022, this office received your Request for Review stating that\nthe Village of Hillside Board of Trustees ( Board) failed to post an agenda to its website at least\n\n48 business hours before its February 28, 2022, regular meeting. You allege that failing to do so\nviolated OMA.\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989). To that end, section 2.02( a) of OMA ( 5 ILCS 120/ 2.02( a) ( West\n\n2020)) requires that \"an agenda for each regular meeting shall be posted at the principal office of\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMarch 18, 2022\n\nPage 2\n\nthe public body and at the location where the meeting is to be held at least 48 hours in advance\n\nof the holding of the meeting. A public body that has a website that the full-time staff of the\npublic body maintains shall also post on its website the agenda of any regular meetings of the\n\ngoverning body of that public body.\" (Emphasis added.)\nWhere the language of a statute is clear and unambiguous, a reviewing body \"may\nnot depart from the plain language by reading into the statute exceptions, limitations, or\n\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial and\nProfessional Regulation, 2014 IL 116023, ¶ 16, 25 N.E.3d 570, 576 ( 2014). \" Generally, when\n\nthe legislature uses certain words in one instance and different words in another, different results\nare intended. [ Citation.] A statute should be construed so that no term is rendered superfluous\n\nor meaningless.\" Hoffman v. Altamore, 352 Ill. App. 3d 246, 256 (2d Dist. 2004). \" We view the\nstatute as a whole, construing words and phrases in light of other relevant statutory provisions\n\nand not in isolation. Each word, clause, and sentence of a statute must be given a reasonable\nmeaning, if possible, and should not be rendered superfluous.\"\n\nPeople v. Gutman, 2011 IL\n\n110338, ¶12, 959 N.E.2d 621, 624 (2011).\nAn \"hour\" is defined as \" one of the 24 parts of a day.\" The American Heritage\nDictionary, 625 ( 2d coll. ed 1982). \" Business hours\" are defined as \"[ t]hat period or portion of\n\nthe day during which the business of the community generally is ordinarily transacted.\"\nBallentine's Law Dictionary, (3d ed. 1969). By its plain language, section 2.02(a) of OMA does\nnot require a public body to post an agenda at least 48 \" business hours\" before a meeting, but\n\nrather \"at least 48 hours in advance[.]\" The OMA elsewhere includes the terms \"7 working\ndays\" ( 5 ILCS 120/ 3.5 ( West 2020)), \" 21 business days\" ( 5 ILCS 120/ 3.5(e) ( West 2020)), and\n\n6 business days\" ( 5 ILCS 120/7.3(a) ( West 2020)). The inclusion of the modifiers \"business\"\nand \" working\" must be interpreted as an expression of the General Assembly' s intent to\n\ndifferentiate these provisions from other provisions in the statute that exclude such modifiers.1\nThe General Assembly' s use of \" 48 hours\" rather than \" 48 business hours\" must be similarly\n\ninterpreted. If the General Assembly had intended to require public bodies to post agendas at\nleast \" 48 business hours\" before regular meetings, it would have expressly so stated in section\n\n2.02(a).\nYou submitted your Request for Review on Friday, February 25, 2022, alleging\nthat the Board failed to post an agenda more than 48 business hours before the Board' s regular\n\nmeeting scheduled for the following Monday, February 28, 2022. Because section 2.02(a) of\nOMA does not require public bodies to post agendas at least 48 \" business hours\" before their\n\nmeetings commence, the facts you have alleged do not support an allegation that the Board\n\n1See, e.g., 5 ILCS 120/2.03 (West 2020) (\" 10 days' notice\"); 5 ILCS 120/2.06(b) (West 2020) (\"30 days\nafter,\" \"10 days after,\" \"60 days after\"); 5 ILCS 120/3(a) (West 2020) (\"within 60 days\"); 5 ILCS 120/3.5(a) (West 2020)\nnot later than 60 days after\").\n\n\fMarch 18, 2022\n\nPage 3\n\nviolated OMA. Accordingly, we have determined that no further action is warranted on this\n\nmatter.\nIf you have any questions, you may contact me at the Chicago address on the first\npage of this letter. This letter serves to close this matter.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n70125 o no fi war mun\ncc:\n\nThe Honorable Joseph T. Tamburino\n\nMayor\nVillage of Hillside\n\n425 Hillside Avenue\nHillside, Illinois 60162\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda-posting timing for regular meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70125/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 18, 2022\n\nVia electronic mail\n\nRE:\n\nOMA Request for Review – 2022 PAC 70125\n\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that no further action is warranted in this matter.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides:\nA person who believes that a violation of this Act by a\n\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\n\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * *\n\nmust include a summary of the facts\n\nsupporting the allegation. (Emphasis added.)\nOn February 25, 2022, this office received your Request for Review stating that\nthe Village of Hillside Board of Trustees (Board) failed to post an agenda to its website at least\n\n48 business hours before its February 28, 2022, regular meeting. You allege that failing to do so\nviolated OMA.\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989). To that end, section 2.02(a) of OMA (5 ILCS 120/ 2.02(a) (West\n\n2020)) requires that \"an agenda for each regular meeting shall be posted at the principal office of\n\nthe public body and at the location where the meeting is to be held at least 48 hours in advance\n\nof the holding of the meeting. A public body that has a website that the full-time staff of the\npublic body maintains shall also post on its website the agenda of any regular meetings of the\n\ngoverning body of that public body.\" (Emphasis added.)\nWhere the language of a statute is clear and unambiguous, a reviewing body \"may\nnot depart from the plain language by reading into the statute exceptions, limitations, or\n\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial and\nProfessional Regulation, 2014 IL 116023, ¶ 16, 25 N.E.3d 570, 576 (2014). \" Generally, when\n\nthe legislature uses certain words in one instance and different words in another, different results\nare intended. [ Citation.] A statute should be construed so that no term is rendered superfluous\n\nor meaningless.\" Hoffman v. Altamore, 352 Ill. App. 3d 246, 256 (2d Dist. 2004). \" We view the\nstatute as a whole, construing words and phrases in light of other relevant statutory provisions\n\nand not in isolation. Each word, clause, and sentence of a statute must be given a reasonable\nmeaning, if possible, and should not be rendered superfluous.\"\n\nPeople v. Gutman, 2011 IL\n\n110338, ¶12, 959 N.E.2d 621, 624 (2011).\nAn \"hour\" is defined as \" one of the 24 parts of a day.\" The American Heritage\nDictionary, 625 (2d coll. ed 1982). \" Business hours\" are defined as \"[ t]hat period or portion of\n\nthe day during which the business of the community generally is ordinarily transacted.\"\nBallentine's Law Dictionary, (3d ed. 1969). By its plain language, section 2.02(a) of OMA does\nnot require a public body to post an agenda at least 48 \" business hours\" before a meeting, but\n\nrather \"at least 48 hours in advance[.]\" The OMA elsewhere includes the terms \"7 working\ndays\" (5 ILCS 120/ 3.5 (West 2020)), \" 21 business days\" (5 ILCS 120/ 3.5(e) (West 2020)), and\n\n6 business days\" (5 ILCS 120/7.3(a) (West 2020)). The inclusion of the modifiers \"business\"\nand \" working\" must be interpreted as an expression of the General Assembly's intent to\n\ndifferentiate these provisions from other provisions in the statute that exclude such modifiers.1\nThe General Assembly's use of \" 48 hours\" rather than \" 48 business hours\" must be similarly\n\ninterpreted. If the General Assembly had intended to require public bodies to post agendas at\nleast \" 48 business hours\" before regular meetings, it would have expressly so stated in section\n\n2.02(a).\nYou submitted your Request for Review on Friday, February 25, 2022, alleging\nthat the Board failed to post an agenda more than 48 business hours before the Board's regular\n\nmeeting scheduled for the following Monday, February 28, 2022. Because section 2.02(a) of\nOMA does not require public bodies to post agendas at least 48 \" business hours\" before their\n\nmeetings commence, the facts you have alleged do not support an allegation that the Board\n\n1 See, e.g., 5 ILCS 120/2.03 (West 2020) (\" 10 days' notice\"); 5 ILCS 120/2.06(b) (West 2020) (\"30 days\nafter,\" \"10 days after,\" \"60 days after\"); 5 ILCS 120/3(a) (West 2020) (\"within 60 days\"); 5 ILCS 120/3.5(a) (West 2020)\n\nviolated OMA. Accordingly, we have determined that no further action is warranted on this\n\nmatter.\nIf you have any questions, you may contact me at the Chicago address on the first\npage of this letter. This letter serves to close this matter.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n70125 o no fi war mun\ncc:\n\nThe Honorable Joseph T. Tamburino\n\nMayor\nVillage of Hillside\n\n425 Hillside Avenue\nHillside, Illinois 60162"}
{"id":1372,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-03-25","case_number":null,"request_numbers":["70139"],"title":"Chicago Park District Board agenda for releasing closed session minutes found sufficient","filename":"70139, issued March 25, 2022.pdf","rel_path":null,"word_count":857,"summary":"A requester alleged that the Chicago Park District Board of Commissioners violated the Open Meetings Act by taking final action to release closed session minutes without listing the item on the meeting agenda. The PAC determined that the agenda provided sufficient notice of the general subject matter and closed the file.","plain_summary":"A citizen complained that the Chicago Park District Board voted to release private meeting minutes without properly listing that vote on their public meeting agenda. The Attorney General's office reviewed the agenda and found that it provided enough information about the topic to satisfy the law. Consequently, the office decided not to take any further action on the complaint.","holding":"The PAC determined that no further action is warranted because the Board's agenda provided the general subject matter of the resolution to release closed session minutes.","legal_question":"Whether the Chicago Park District Board of Commissioners violated section 2.02(c) of the Open Meetings Act by failing to list the release of closed session minutes as a specific item on its meeting agenda.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Chicago Park District Board of Commissioners","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of a public body's meeting agenda regarding the final action taken to release closed session minutes.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/70139, issued March 25, 2022.pdf","sha256":"8c96426bb60141fe62b39e4a77b48347b355519377538a576d47fa18ce3a77dc","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","closed session minutes","public notice","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 25, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70139\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\nhas determined that no further action is warranted in this matter.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) ( West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\n\nmust include a summary of the facts supporting the allegation[]\"\n\nthat the public body violated OMA.\nYour Request for Review, which was e- mailed to the Public Access Counselor on\n\nFebruary 27, 2022, alleges that the Board of Commissioners (Board) of the Chicago Park District\nDistrict) violated section 2.02( c) of OMA ( 5 ILCS 120/ 2.02( c) ( West 2020)), during its January\n\n26, 2022, meeting, by taking final action to release certain closed session minutes without listing\nthat item on its agenda. To support your allegation, you provided this office with three pages of\n\nthe Board's January 26, 2022, agenda, as well as a link to the Board's agenda. The January 26,\n2022, agenda, which is posted on the District' s website, is five pages long. Agenda item nine\n\nstates that it will hold a closed session \"[ p]ursuant to 5ILCS 120 Section 2 Subsection C, (1),\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMarch 25, 2022\n\nPage 2\n\n21)[,]\" and agenda item ten states that it will return to open session to \"Report on Closed\nSession Discussion[.]\"\n\n1\n\nSection 2.02( c) of OMA provides, in pertinent part, that \" any agenda required\n\nunder this Section shall set forth the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\n\nThe Public Access Bureau has previously\n\ndetermined that section 2.02(c) of OMA \"requires a public body's agenda to identify the general\nsubject matter of final action – not what particular action will be taken by a public body.\" Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 39177, issued February 2, 2016, at 3-4 (determining that agenda\nitem \" Illinois Rt. 53/ 120 Project Environmental Impact Statement\" did not violate section 2.02( c)\n\nof OMA because by inclusion on the agenda, it could be inferred that the Board anticipated\ntaking final action on the matter).\nHere, the Board listed as item nine on its agenda that it was entering closed\n\nsession pursuant to section 2(c)(21) of OMA (5 ILCS 120/2(c)(21) (West 2020)), which allows a\npublic body to close a meeting for the \"[ d] iscussion of minutes of meetings lawfully closed under\n\nthis Act, whether for purposes of approval by the body of the minutes or semi-annual review of\nthe minutes as mandated by Section 2.06.\" The Board also listed as item ten on its agenda that it\n\nwould report on that discussion in open session. Indeed, section 2.06(d) of OMA (5 ILCS 120/\n2.06( d) ( West 2020)) requires a public body to return to open session and report whether the\n\nneed for confidentiality still exists as to the closed session minutes it reviewed in a closed\nmeeting. See III. Att'y Gen. PAC Req. Rev. Ltr. 61954, issued November 12, 2020, at 6. While\n\nthe Board's agenda could have been clearer, taken together, it can be inferred from agenda items\nnine and ten that the Board anticipated taking a vote in open session on whether the\n\nconfidentiality of the closed minutes it had reviewed in its closed session still exists. Because\nthe Board agenda provided the general subject matter of the resolution to release closed session\n\nminutes under section 2.02(c) of OMA, this office has determined that no further action is\nwarranted in this matter. 2\n\n1Chicago Park District Board of Commissioners Virtual Regular Board Meeting Agenda (January\n26, 2022).\nRequest for Review, 2022 PAC 70147, which alleges that the Board held an improper\nclosed session discussion on November 10, 2021, remains an open matter.\n\n\fMarch 25, 2022\n\nPage 3\n\nThis file is closed. Please contact me at (312) 814-5201, edie.steinberg@ilag.gov,\nor the Chicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nEDIE STEINBERG\n\nSenior Assistant Attorney General\nPublic Access Bureau\n70139 o no fi war pkd\nVia electronic mail\n\nMs. Myetie H. Hamilton\nPresident\n\nChicago Park District Board of Commissioners\n541 North Fairbanks\n\nChicago, Illinois 60611\ncommissioners@chicagoparkdistrict.\n\ncom\n\nVia electronic mail\n\nMs. Dorothy D. Carroll\nSenior Counsel\n\n541 North Fairbanks\nChicago, Illinois 60611\n\nDorothy.carroll@chicagoparkdistrict.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A park district board's meeting agenda for releasing closed session minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70139/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 25, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70139\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\nhas determined that no further action is warranted in this matter.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\n\nmust include a summary of the facts supporting the allegation[]\"\n\nthat the public body violated OMA.\nYour Request for Review, which was e- mailed to the Public Access Counselor on\n\nFebruary 27, 2022, alleges that the Board of Commissioners (Board) of the Chicago Park District\nDistrict) violated section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)), during its January\n\n26, 2022, meeting, by taking final action to release certain closed session minutes without listing\nthat item on its agenda. To support your allegation, you provided this office with three pages of\n\nthe Board's January 26, 2022, agenda, as well as a link to the Board's agenda. The January 26,\n2022, agenda, which is posted on the District's website, is five pages long. Agenda item nine\n\nstates that it will hold a closed session \"[ p]ursuant to 5ILCS 120 Section 2 Subsection C, (1),\n\n21)[,]\" and agenda item ten states that it will return to open session to \"Report on Closed\nSession Discussion[.]\"\n\n1\n\nSection 2.02(c) of OMA provides, in pertinent part, that \" any agenda required\n\nunder this Section shall set forth the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\n\nThe Public Access Bureau has previously\n\ndetermined that section 2.02(c) of OMA \"requires a public body's agenda to identify the general\nsubject matter of final action – not what particular action will be taken by a public body.\" Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 39177, issued February 2, 2016, at 3-4 (determining that agenda\nitem \" Illinois Rt. 53/ 120 Project Environmental Impact Statement\" did not violate section 2.02(c)\n\nof OMA because by inclusion on the agenda, it could be inferred that the Board anticipated\ntaking final action on the matter).\nHere, the Board listed as item nine on its agenda that it was entering closed\n\nsession pursuant to section 2(c)(21) of OMA (5 ILCS 120/2(c)(21) (West 2020)), which allows a\npublic body to close a meeting for the \"[ d] iscussion of minutes of meetings lawfully closed under\n\nthis Act, whether for purposes of approval by the body of the minutes or semi-annual review of\nthe minutes as mandated by Section 2.06.\" The Board also listed as item ten on its agenda that it\n\nwould report on that discussion in open session. Indeed, section 2.06(d) of OMA (5 ILCS 120/\n2.06(d) (West 2020)) requires a public body to return to open session and report whether the\n\nneed for confidentiality still exists as to the closed session minutes it reviewed in a closed\nmeeting. See III. Att'y Gen. PAC Req. Rev. Ltr. 61954, issued November 12, 2020, at 6. While\n\nthe Board's agenda could have been clearer, taken together, it can be inferred from agenda items\nnine and ten that the Board anticipated taking a vote in open session on whether the\n\nconfidentiality of the closed minutes it had reviewed in its closed session still exists. Because\nthe Board agenda provided the general subject matter of the resolution to release closed session\n\nminutes under section 2.02(c) of OMA, this office has determined that no further action is\nwarranted in this matter. 2\n\n1 Chicago Park District Board of Commissioners Virtual Regular Board Meeting Agenda (January\n\nThis file is closed. Please contact me at (312) 814-5201, edie.steinberg@ilag.gov,\nor the Chicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nEDIE STEINBERG\n\nSenior Assistant Attorney General\nPublic Access Bureau\n70139 o no fi war pkd\nVia electronic mail\n\nMs. Myetie H. Hamilton\nPresident\n\nChicago Park District Board of Commissioners\n541 North Fairbanks\n\nChicago, Illinois 60611\ncommissioners@chicagoparkdistrict.\n\ncom\n\nVia electronic mail\n\nMs. Dorothy D. Carroll\nSenior Counsel\n\n541 North Fairbanks\nChicago, Illinois 60611\n\nDorothy.carroll@chicagoparkdistrict.com"}
{"id":1373,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-04-11","case_number":null,"request_numbers":["70527"],"title":"Arlington Heights Board no further action on informal straw poll meeting claim","filename":"70527, issued April 11, 2022.pdf","rel_path":null,"word_count":868,"summary":"A requester alleged that the Village of Arlington Heights Board of Trustees violated the Open Meetings Act by using informal straw polls to decide on agenda items, but the PAC determined the evidence did not support a violation.","plain_summary":"A resident complained that the Village of Arlington Heights Board was using informal polls to decide on agenda items outside of public meetings. The Attorney General's office reviewed the claim and found no evidence that the Board held an illegal private meeting. Consequently, the office closed the case without taking further action.","holding":"The PAC determined that no further action is warranted because the requester failed to provide facts suggesting a majority of a quorum engaged in contemporaneous interactive communication constituting a meeting.","legal_question":"Whether the Village Board's use of informal straw polls to determine agenda items constitutes a 'meeting' under the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of the Village of Arlington Heights","requesting_party":"anonymous","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting definition","subject_description":"The alleged use of informal straw polls by a public body to determine agenda items outside of a public meeting.","ocr_status":"llm_reocr","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/70527, issued April 11, 2022.pdf","sha256":"88baafe9fcf3947c634d52a6fe200a8646004b4c09f45bf331733dd628db752a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["straw poll","agenda items","meeting definition","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 11, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70527\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) ( West 2020)). For the reasons that follow, the Public Access Bureau\n\nhas determined that no further action is warranted in this matter.\nThe Public Access Bureau received your Request for Review alleging that the\nBoard of Trustees ( Board) of the Village of Arlington Heights ( Village) violated OMA between\n\napproximately February 28, 2022, and March 7, 2022, by taking a straw poll on \"whether to list\na particular] agenda item at all and/ or how the [ Board] would vote on amending the\n\nInclusionary Housing Ordinance (IHO) to include Senior Residential Communities in the\naffordable housing calculation.\" 1 You alleged that the Village Manager \" regularly uses an\n\ninformal straw poll process, outside of a [ Board] meeting, to determine if an item should be\nincluded on a future agenda for public discussion and vote.\" 2 You asked this office to review\n\nthis practice because you allege that it interferes with the public's right to be informed about the\nconduct of public business and prevents public participation.\nSection 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\"\n\nand that the submission \" must include a summary\n\nof the facts supporting the allegation.\"\n1E- mail from\nAttorney General (March 15, 2022).\n\nto Leah Bartelt, Public Access Counselor, Office of the Illinois\n\n2E- mail from\nAttorney General (March 15, 2022).\n\nto Leah Bartelt, Public Access Counselor, Office of the Illinois\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fApril 11, 2022\n\nPage 2\n\nThe summary of facts you provided in your Request for Review is insufficient to\n\nindicate that the Board violated OMA by taking a straw poll about a potential agenda item\nbetween around February 28, 2022, and March 7, 2022. To the extent you allege that the Board\n\nimproperly took final action outside of an open meeting by taking one or more straw polls,\nsection 2(e) of OMA ( 5 ILCS 120/ 2(e) ( West 2020), as amended by Public Act 102- 558,\n\neffective August 20, 2021; 102-237, effective January 1, 2022) provides that: \" No final action\nmay be taken at a closed meeting. Final action shall be preceded by a public recital of the nature\n\nof the matter being considered and other information that will inform the public of the business\nbeing conducted.\"\nThe term \" final action\" generally does not encompass intermediate steps taken by\n\na public body. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 (5th Dist. 1989) (concluding that a\nboard' s decision to authorize a request for mediation as an alternative to the negotiations it had\n\nbeen conducting with a union was merely a step towards reaching final action on the union's\ncontract, rather than final action itself). \" Final action\" generally must resolve a distinct matter.\n\nA decision to consider or not consider a matter during a meeting typically does not bring that\nmatter to a resolution. Further, the ability to conduct public business would be significantly\n\nhampered if OMA restricted members of public bodies from reaching an informal consensus\nbetween meetings about whether or not to place particular items on the agenda of an upcoming\n\nmeeting. Consequently, the Public Access Bureau has previously determined that \"a decision to\nplace or not place items on the agenda is not final action––it is a procedural step needed to\nidentify the substantive issues to be discussed or acted upon at a meeting.\"\n\nIll. Att'y Gen. PAC\n\nReq. Rev. Ltr. 64798, issued February 4, 2021, at 3.\nA public body could take final action on a topic such as a proposed amendment to\na housing ordinance by choosing to omit it from a meeting agenda after reaching a private\n\nconsensus on the substance of the proposal and rejecting it. Your submission, however, does not\ncontain any facts indicating that the Board substantively considered and reached a consensus on\n\nthe merits of the proposed amendment. Likewise, the information you submitted does not\nsuggest that the Board held an improper private meeting, whether in person or electronically.\n\nThere is no indication that a majority of a quorum of the Board engaged in \"contemporaneous\ninteractive communication\" about the agenda item, which is necessary to constitute a \" meeting\"\n\nsubject to OMA. 5 ILCS 120/1.02 (West 2020) (defining \"meeting\"). Because your Request for\nReview does not provide a summary of facts supporting the allegation that the Board potentially\n\nviolated OMA, this office has determined that no further action is warranted in this matter.\n\n\fApril 11, 2022\n\nPage 3\n\nPlease contact me by mail at the Chicago address listed on the first page of this\n\nletter or by e-mail at c.lucentemccullough@ilag.gov if you have questions or would like to\ndiscuss this matter. Thank you.\nVery truly yours,\n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\n\nPublic Access Bureau\n70527 o no fi war mun\nEnclosure\n\ncc:\n\nVia electronic mail\nThe Honorable Thomas W. Hayes\n\nMayor\nVillage of Arlington Heights\n\n33 South Arlington Heights Road\nArlington Heights, Illinois 60005\n\nthayes@vah.com\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 11, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70527\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\n\nhas determined that no further action is warranted in this matter.\nThe Public Access Bureau received your Request for Review alleging that the\nBoard of Trustees (Board) of the Village of Arlington Heights (Village) violated OMA between\n\napproximately February 28, 2022, and March 7, 2022, by taking a straw poll on \"whether to list\na particular] agenda item at all and/ or how the [ Board] would vote on amending the\n\nInclusionary Housing Ordinance (IHO) to include Senior Residential Communities in the\naffordable housing calculation.\" 1 You alleged that the Village Manager \" regularly uses an\n\ninformal straw poll process, outside of a [ Board] meeting, to determine if an item should be\nincluded on a future agenda for public discussion and vote.\" 2 You asked this office to review\n\nthis practice because you allege that it interferes with the public's right to be informed about the\nconduct of public business and prevents public participation.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\"\n\nand that the submission \" must include a summary\n\nof the facts supporting the allegation.\"\n1E- mail from\nAttorney General (March 15, 2022).\n\nto Leah Bartelt, Public Access Counselor, Office of the Illinois\n\n2E- mail from\nAttorney General (March 15, 2022).\n\nto Leah Bartelt, Public Access Counselor, Office of the Illinois\n\nThe summary of facts you provided in your Request for Review is insufficient to\n\nindicate that the Board violated OMA by taking a straw poll about a potential agenda item\nbetween around February 28, 2022, and March 7, 2022. To the extent you allege that the Board\n\nimproperly took final action outside of an open meeting by taking one or more straw polls,\nsection 2(e) of OMA (5 ILCS 120/ 2(e) (West 2020), as amended by Public Act 102- 558,\n\neffective August 20, 2021; 102-237, effective January 1, 2022) provides that: \" No final action\nmay be taken at a closed meeting. Final action shall be preceded by a public recital of the nature\n\nof the matter being considered and other information that will inform the public of the business\nbeing conducted.\"\nThe term \" final action\" generally does not encompass intermediate steps taken by\n\na public body. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 (5th Dist. 1989) (concluding that a\nboard's decision to authorize a request for mediation as an alternative to the negotiations it had\n\nbeen conducting with a union was merely a step towards reaching final action on the union's\ncontract, rather than final action itself). \" Final action\" generally must resolve a distinct matter.\n\nA decision to consider or not consider a matter during a meeting typically does not bring that\nmatter to a resolution. Further, the ability to conduct public business would be significantly\n\nhampered if OMA restricted members of public bodies from reaching an informal consensus\nbetween meetings about whether or not to place particular items on the agenda of an upcoming\n\nmeeting. Consequently, the Public Access Bureau has previously determined that \"a decision to\nplace or not place items on the agenda is not final action––it is a procedural step needed to\nidentify the substantive issues to be discussed or acted upon at a meeting.\"\n\nIll. Att'y Gen. PAC\n\nReq. Rev. Ltr. 64798, issued February 4, 2021, at 3.\nA public body could take final action on a topic such as a proposed amendment to\na housing ordinance by choosing to omit it from a meeting agenda after reaching a private\n\nconsensus on the substance of the proposal and rejecting it. Your submission, however, does not\ncontain any facts indicating that the Board substantively considered and reached a consensus on\n\nthe merits of the proposed amendment. Likewise, the information you submitted does not\nsuggest that the Board held an improper private meeting, whether in person or electronically.\n\nThere is no indication that a majority of a quorum of the Board engaged in \"contemporaneous\ninteractive communication\" about the agenda item, which is necessary to constitute a \" meeting\"\n\nsubject to OMA. 5 ILCS 120/1.02 (West 2020) (defining \"meeting\"). Because your Request for\nReview does not provide a summary of facts supporting the allegation that the Board potentially\n\nviolated OMA, this office has determined that no further action is warranted in this matter.\n\nPlease contact me by mail at the Chicago address listed on the first page of this\n\nletter or by e-mail at c.lucentemccullough@ilag.gov if you have questions or would like to\ndiscuss this matter. Thank you.\nVery truly yours,\n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\n\nPublic Access Bureau\n70527 o no fi war mun\nEnclosure\n\ncc:\n\nVia electronic mail\nThe Honorable Thomas W. Hayes\n\nMayor\nVillage of Arlington Heights\n\n33 South Arlington Heights Road\nArlington Heights, Illinois 60005\n\nthayes@vah.com","plain_summary_pre_resummarize":null,"card_headline":"Informal straw polls to set a board agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70527/","full_text":"KWAME RAOUL\nATTORNEY GENERAL\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nApril 11, 2022\n\nVia electronic mail\n[REDACTED]\n\nRE: OMA Request for Review – 2022 PAC 70527\n\nDear [REDACTED]\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\nhas determined that no further action is warranted in this matter.\n\nThe Public Access Bureau received your Request for Review alleging that the\nBoard of Trustees (Board) of the Village of Arlington Heights (Village) violated OMA between\napproximately February 28, 2022, and March 7, 2022, by taking a straw poll on \"whether to list\n[a particular] agenda item at all and/or how the [Board] would vote on amending the\nInclusionary Housing Ordinance (IHO) to include Senior Residential Communities in the\naffordable housing calculation.\"¹ You alleged that the Village Manager \"regularly uses an\ninformal straw poll process, outside of a [Board] meeting, to determine if an item should be\nincluded on a future agenda for public discussion and vote.\"² You asked this office to review\nthis practice because you allege that it interferes with the public's right to be informed about the\nconduct of public business and prevents public participation.\n\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides that \"[a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\" and that the submission \"must include a summary\nof the facts supporting the allegation.\"\n\n¹E-mail from [REDACTED] to Leah Bartelt, Public Access Counselor, Office of the Illinois\nAttorney General (March 15, 2022).\n\n²E-mail from [REDACTED] to Leah Bartelt, Public Access Counselor, Office of the Illinois\nAttorney General (March 15, 2022).\n\n[REDACTED]\nApril 11, 2022\nPage 2\n\nThe summary of facts you provided in your Request for Review is insufficient to\nindicate that the Board violated OMA by taking a straw poll about a potential agenda item\nbetween around February 28, 2022, and March 7, 2022. To the extent you allege that the Board\nimproperly took final action outside of an open meeting by taking one or more straw polls,\nsection 2(e) of OMA (5 ILCS 120/2(e) (West 2020), as amended by Public Act 102-558,\neffective August 20, 2021; 102-237, effective January 1, 2022) provides that: \"No final action\nmay be taken at a closed meeting. Final action shall be preceded by a public recital of the nature\nof the matter being considered and other information that will inform the public of the business\nbeing conducted.\"\n\nThe term \"final action\" generally does not encompass intermediate steps taken by\na public body. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 (5th Dist. 1989) (concluding that a\nboard's decision to authorize a request for mediation as an alternative to the negotiations it had\nbeen conducting with a union was merely a step towards reaching final action on the union's\ncontract, rather than final action itself). \"Final action\" generally must resolve a distinct matter.\nA decision to consider or not consider a matter during a meeting typically does not bring that\nmatter to a resolution. Further, the ability to conduct public business would be significantly\nhampered if OMA restricted members of public bodies from reaching an informal consensus\nbetween meetings about whether or not to place particular items on the agenda of an upcoming\nmeeting. Consequently, the Public Access Bureau has previously determined that \"a decision to\nplace or not place items on the agenda is not final action—it is a procedural step needed to\nidentify the substantive issues to be discussed or acted upon at a meeting.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 64798, issued February 4, 2021, at 3.\n\nA public body could take final action on a topic such as a proposed amendment to\na housing ordinance by choosing to omit it from a meeting agenda after reaching a private\nconsensus on the substance of the proposal and rejecting it. Your submission, however, does not\ncontain any facts indicating that the Board substantively considered and reached a consensus on\nthe merits of the proposed amendment. Likewise, the information you submitted does not\nsuggest that the Board held an improper private meeting, whether in person or electronically.\nThere is no indication that a majority of a quorum of the Board engaged in \"contemporaneous\ninteractive communication\" about the agenda item, which is necessary to constitute a \"meeting\"\nsubject to OMA. 5 ILCS 120/1.02 (West 2020) (defining \"meeting\"). Because your Request for\nReview does not provide a summary of facts supporting the allegation that the Board potentially\nviolated OMA, this office has determined that no further action is warranted in this matter.\n\nApril 11, 2022\nPage 3\n\nPlease contact me by mail at the Chicago address listed on the first page of this\nletter or by e-mail at c.lucentemccullough@ilag.gov if you have questions or would like to\ndiscuss this matter. Thank you.\n\nVery truly yours,\n\n[REDACTED]\n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n70527 o no fi war mun\n\nEnclosure\n\ncc: Via electronic mail\nThe Honorable Thomas W. Hayes\nMayor\nVillage of Arlington Heights\n33 South Arlington Heights Road\nArlington Heights, Illinois 60005\nthayes@vah.com"}
{"id":1375,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-04-07","case_number":null,"request_numbers":["70648"],"title":"PAC declines to investigate former Firemen's Annuity board member for closed session leak","filename":"70648, issued April 7, 2022.pdf","rel_path":null,"word_count":613,"summary":"The Firemen's Annuity and Benefit Fund of Chicago requested a review regarding a former board member's unauthorized disclosure of closed session audio recordings, but the PAC determined it lacked authority to act because the complaint did not allege a violation by a public body.","plain_summary":"A request for review was submitted to the Illinois Attorney General's Public Access Bureau on behalf of the Firemen's Annuity and Benefit Fund of Chicago, alleging that a former board member violated the Open Meetings Act by publishing portions of a confidential closed-session audio recording on his personal blog. The Attorney General's office closed the file, stating that the request did not allege a violation by the Board or any other public body, and therefore the office lacked authority to review the allegation. No further action was taken.","holding":"The PAC declined to take further action because the request did not allege a violation of OMA by a public body, placing the matter outside the PAC's jurisdiction.","legal_question":"Does the Public Access Counselor have the authority under the Open Meetings Act to investigate the actions of a former board member who allegedly disclosed confidential closed session recordings without authorization?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Firemen's Annuity and Benefit Fund of Chicago Retirement Board","requesting_party":"Firemen's Annuity and Benefit Fund of Chicago","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"A former board member allegedly published a blog post containing audio from a confidential closed session meeting.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_e/70648, issued April 7, 2022.pdf","sha256":"b74975dbaadfd9f3c4270fafc94652d81af6c9c2fc289074a62aaf7912ce726a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","jurisdiction","audio recording","board member"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 7, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70648\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings\nAct (OMA). 1 For the reasons explained below, this office will take no further action in this\nmatter.\nOn March 18, 2022, on behalf of the Firemen' s Annuity and Benefit Fund of\nChicago ( Fund), you submitted a Request for Review to the Public Access Bureau alleging that a\nformer member of the Fund' s Retirement Board ( Board) may have violated section 2.06(e) of\nOMA. 2 Your submission to this office included a copy of a letter that the Board sent to the\nformer Board member. In that letter, the Board stated that it had discovered that the former\nBoard member published a post on his personal blog, without the permission of the Board, which\nincluded portions of a confidential audio recording from the Board' s March 15, 2017, closed\nsession meeting, which the former Board member had attended as a trustee of the Board at that\ntime. The Board informed the former Board member that his actions, among other things,\nviolated section 2.06(e) of OMA, stating:\nWhile it is unknown how you accessed the confidential audio\nrecording, it is undisputed that you were in possession of the\n15 ILCS 120/3.5(b) (West 2020).\n25 ILCS 120/2.06(e) ( West 2020), as amended by Public Act 102- 653, effective January 1, 2022.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fApril 7, 2022\nPage 2\n\nconfidential audio recording of the March 15, 2017 executive\nsession meeting and that such recording was removed from the\nFund' s office without approval by the Board ( or by court order) for\nutilization in your January 2022 Blog Post.[ 3]\nSection 3.5(a) of OMA 4 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General[.] * * * The request for review * * *\nmust include a summary of the facts supporting the allegation.\" ( Emphasis added.)\nAdditionally, the authority of the Public Access Counselor is limited to reviewing potential\nviolations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. ( West 2020)). 5\nIn this circumstance, the Board contends that a former Board member improperly\nremoved the closed session verbatim recordings from the Fund' s main office or official storage\nlocation without the authorization or involvement of the Board. This action is not attributable to\nthe Board. Because your Request for Review does not allege a violation of OMA by the Board\nor any other public body, this office does not have authority to review your allegation.\nTherefore, this office has determined that no further action is warranted in this\nmatter. This file is closed. If you have any questions, my e- mail address is\nShannon. Barnaby@ilag. gov.\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n70648 o no fi war fd\n\n3Letter from The Retirement Board, Firemen' s Annuity and Benefit Fund of Chicago, to Timothy\nMcPhillips ( February 11, 2022).\n45 ILCS 120/3.5(a) ( West 2020).\n515 ILCS 205/ 7(c)(3) (West 2020).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A former board member's blog post with closed-session audio","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70648/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 7, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 70648\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings\nAct (OMA). 1 For the reasons explained below, this office will take no further action in this\nmatter.\nOn March 18, 2022, on behalf of the Firemen's Annuity and Benefit Fund of\nChicago (Fund), you submitted a Request for Review to the Public Access Bureau alleging that a\nformer member of the Fund's Retirement Board (Board) may have violated section 2.06(e) of\nOMA. 2 Your submission to this office included a copy of a letter that the Board sent to the\nformer Board member. In that letter, the Board stated that it had discovered that the former\nBoard member published a post on his personal blog, without the permission of the Board, which\nincluded portions of a confidential audio recording from the Board's March 15, 2017, closed\nsession meeting, which the former Board member had attended as a trustee of the Board at that\ntime. The Board informed the former Board member that his actions, among other things,\nviolated section 2.06(e) of OMA, stating:\nWhile it is unknown how you accessed the confidential audio\nrecording, it is undisputed that you were in possession of the\n15 ILCS 120/3.5(b) (West 2020).\n25 ILCS 120/2.06(e) (West 2020), as amended by Public Act 102- 653, effective January 1, 2022.\n\nconfidential audio recording of the March 15, 2017 executive\nsession meeting and that such recording was removed from the\nFund's office without approval by the Board (or by court order) for\nutilization in your January 2022 Blog Post.[ 3]\nSection 3.5(a) of OMA 4 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General[.] * * * The request for review * * *\nmust include a summary of the facts supporting the allegation.\" (Emphasis added.)\nAdditionally, the authority of the Public Access Counselor is limited to reviewing potential\nviolations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2020)). 5\nIn this circumstance, the Board contends that a former Board member improperly\nremoved the closed session verbatim recordings from the Fund's main office or official storage\nlocation without the authorization or involvement of the Board. This action is not attributable to\nthe Board. Because your Request for Review does not allege a violation of OMA by the Board\nor any other public body, this office does not have authority to review your allegation.\nTherefore, this office has determined that no further action is warranted in this\nmatter. This file is closed. If you have any questions, my e- mail address is\nShannon. Barnaby@ilag. gov.\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n70648 o no fi war fd\n\n3 Letter from The Retirement Board, Firemen's Annuity and Benefit Fund of Chicago, to Timothy\nMcPhillips (February 11, 2022).\n45 ILCS 120/3.5(a) (West 2020).\n515 ILCS 205/ 7(c)(3) (West 2020)."}
{"id":1376,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-05-16","case_number":null,"request_numbers":["71154"],"title":"City of Sandwich City Council violated OMA by failing to detail matter before final vote","filename":"71154, issued May 16, 2022.pdf","rel_path":null,"word_count":3282,"summary":"The DeKalb County State's Attorney's Office alleged that the City of Sandwich City Council failed to provide a sufficiently detailed public recital before taking final action during an August 23, 2021, meeting. The PAC determined that the City violated the public recital requirements of the Open Meetings Act.","plain_summary":"The DeKalb County State's Attorney complained that the City of Sandwich voted on a matter without first explaining to the public what they were voting on in enough detail. The Attorney General's office agreed, finding that the City failed to follow the law requiring a clear public explanation before taking final action. This serves as a reminder that public bodies must be transparent about the specific nature of the business they are conducting.","holding":"The City of Sandwich City Council violated section 2(e) of the Open Meetings Act by failing to provide a sufficiently detailed public recital of the matter before taking final action.","legal_question":"Whether the City of Sandwich violated section 2(e) of the Open Meetings Act by failing to recite with sufficient detail the nature of a matter under consideration before taking final action.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Sandwich City Council","requesting_party":"Rick Amato and David Berault (DeKalb County State's Attorney's Office)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of the public recital provided by the City Council before taking final action on a matter during a public meeting.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/71154, issued May 16, 2022.pdf","sha256":"49e51e024a943a0ee3f4faff8b191242199c565a85cb9a629aacd6ba80474837","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public recital","Open Meetings Act","final action","transparency","meeting requirements"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 16, 2022\n\nVia electronic mail\nThe Honorable Rick Amato\n\nState's Attorney\nDeKalb County State' s Attorney' s Office\n\n[street address redacted for site publication -- see original PDF]\nramato@dekalbcounty.org\nVia electronic mail\nThe Honorable Todd Latham\n\nMayor\nCity of Sandwich\n\n144 East Railroad Street\nSandwich, Illinois 60548\n\nmayor@sandwich.il.us\nRE: OMA Request for Review – 2021-PAC-C-0303 (2022 PAC 71154)\nDear Mr. Amato and Mr. Latham:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council (Council) of the City of Sandwich (City) violated the public\nrecital requirements of OMA during its August 23, 2021, meeting.\nBACKGROUND\nOn August 27, 2021, Mr. Rick Amato and Mr. David Berault, on behalf of the\n\nDeKalb County State's Attorney's Office (State's Attorney's Office), submitted a Request for\nReview to the Public Access Bureau alleging that the Council violated section 2(e) of OMA ( 5\n\nILCS 120/2(e) ( West 2020), as amended by Public Act 102-558, effective August 20, 2021) at its\nAugust 23, 2021, meeting by failing to recite with sufficient detail the nature of a matter under\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 2\n\nconsideration before the Council took final action. The State's Attorney's Office explained that\nthe Council voted to authorize the execution of a settlement agreement and provided this office\n\nwith a copy of a verbatim recording of the portion of the meeting pertaining to that vote. The\nState' s Attorney' s Office contended that the \" recitation was completely devoid of information as\n\nto the actual business being conducted[,]\" and that the public could not discern \" what was being\nconsidered in this vote.\" 1 The State' s Attorney' s Office also contended that the meeting' s agenda\n\nlacked information about the settlement agreement in violation of section 2.02(c) of OMA (5\nILCS 120/ 2.02( c) ( West 2020)). In particular, the State' s Attorney' s Office asserted that \" the\n\nlisted item contains no actual 'subject matter' regarding the agreement or litigation\" and \" did not\nprovide what litigation it was related to, how much the settlement was for, or who it was with.\" 2\nOn September 9, 2021, this office forwarded a copy of the Request for Review to\n\nthe Council and asked it to provide this office with copies of its August 23, 2021, meeting\nagenda and minutes, together with a written response to the State' s Attorney' s Office' s OMA\n\nallegations. This office also asked the Council to provide a copy of a verbatim recording of the\nopen session, if available. On September 17, 2021, and September 20, 2021, this office received\n\nthe requested materials. On September 23, 2021, this office forwarded a copy of the Council's\nresponse to the State' s Attorney' s Office. The State' s Attorney' s Office replied on September 24,\n\n2021.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nSufficiency of Meeting Agenda\nSection 2.02( c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nOMA does not contain a definition of \" general subject matter.\"\n\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective\n1Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Todd Latham, Mayor, Mayor and City Clerk's Office (August 27, 2021), at 2.\n2Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Todd Latham, Mayor, Mayor and City Clerk's Office (August 27, 2021), at 2.\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 3\n\nJanuary 1, 2013, added section 2.02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\n\nwould be final action. And this just says that you have to have a\ngeneral notice if you' re going to have and take final action,\n\nas to generally what's going to be discussed so that – that\npeople who follow their units of local government know what\n\nthey're going to be acting upon. (Emphasis added.) Remarks of\nSen. Dillard, May 16, 2012, Senate Debate on House Bill No.\n\n4687, at 47.\nThe Public Access Bureau has determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\n\nnew city administrator to a five-year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate section 2.02( c) of OMA).\nIn its response to this office, the Council denied that it violated section 2.02( c)\n\nwith respect to its August 23, 2021, meeting agenda. The meeting agenda provided, in relevant\npart:\nMayor’ s Report: Todd Latham\n\nd. Motion to authorize Mayor to execute \" Settlement Agreement in\n\nCompromise of Pending Litigation\".[3]\nThe Council argued that section 2.02(c) \"only addresses an 'ordinance or resolution'\" and that the\nsettlement agreement at issue was not part of an ordinance or resolution. 4 It further argued that it\n\nhad provided sufficient information regarding the settlement agreement in accordance with the\nIllinois Supreme Court' s decision in Board of Education of Springfield School District No. 186 v.\n3City of Sandwich City Council, Agenda, Mayor's Report, Item d (August 23, 2021).\n4Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau (September 20, 2021), at 1.\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 4\n\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 (2017). The Council asserted that\nit was not required to include any additional detail in its agenda.\nIn reply to that answer, the State' s Attorne y's Office maintained that the agenda\n\nfailed to provide any information about the settlement agreement that the Council voted upon at\nthe meeting. The State' s Attorney' s Office highlighted that the agenda considered by the Court in\n\nSpringfield School District contained specific details about the separation agreement that was the\nsubject of a resolution voted on by the school board. The agenda included the name of the\n\nschool district employee at issue and a link to the resolution; the resolution also provided a link\nto the separation agreement itself. In contrast to that agenda, the State' s Attorney' s Office\n\nargued: \" The present scenario contained no parties to the agreement * * *, no accompanying\nresolution, no links to agreements – it contained no hint as to the purpose behind what was being\n\nsigned.\" 5\nAs a threshold matter, the Council asserts that section 2.02(c) is inapplicable to\nthis matter because the motion to authorize the mayor to execute the settlement agreement was\n\nnot a resolution or ordinance. Black's Law Dictionary defines \"resolution,\" in pertinent part, as:\nFormal action by a corporate board of directors or other corporate body authorizing a particular\n\nact, transaction, or appointment.\" Black's Law Dictionary (10th ed. 2014), available at Westlaw\nBLACKS. Even if the Council did not label the proposed course of action on the settlement\n\nagreement as a \" resolution,\" it voted to authorize a transaction by the mayor and therefore took\nfinal action on a \" resolution\" under the plain meaning of that word. Accordingly, the\n\nrequirements of section 2.02(c) applied to the action taken on the settlement agreement.\nBased on this office's review, the Council's August 23, 2021, meeting agenda set\nforth–– minimally–– the general subject matter of the issue that was the subject of final action.\n\nThe agenda provided the main elements of the issue— Council authorization for the mayor to\nexecute a settlement agreement. While more details in the agenda, such as the parties to the\n\npending litigation or the topic of the underlying dispute, would have better informed the public\nof the settlement agreement under consideration, section 2.02( c) does not require those details.\n\nSee Springfield School District, 2017 IL 120343, ¶33, 77 N.E.3d at 632 (noting that the posted\nagenda \" set forth the general subject matter— approval of a resolution regarding a separation\n\nagreement\" as well as specific details regarding the agreement, such as the specific \"employee\nwith whom the agreement had been negotiated\" and \" a link to the full text of the agreement\n\nitself.\"). Accordingly, this office concludes that the Council's agenda item concerning the\nsettlement agreement satisfied the minimum requirements of section 2.02( c) of OMA. This\n\noffice, however, encourages the Council to provide additional information about similar agenda\n\n5Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Public Access Bureau (September 24, 2021), at 3.\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 5\n\nitems in the future in accordance with the spirit of the General Assembly's intent that \"public\nbodies exist to aid in the conduct of the people' s business and that the people have a right to be\n\ninformed as to the conduct of their business.\" 5 ILCS 120/1 (West 2020).\nPublic Recital of Final Action\nSection 2(e) of OMA provides that \"[ n]o final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\n\nconsidered and other information that will inform the public of the business being conducted.\"\nAs the parties highlighted, the Illinois Supreme Court considered whether a\nschool board met the public recital requirements of section 2(e) in Springfield School District\n\nNo. 186, 2017 IL 120343, 77 N.E.3d 625. The Court held that \"under section 2(e) of the Open\nMeetings Act, a public recital must take place at the open meeting before the matter is voted\n\nupon; the recital must announce the nature of the matter under consideration, with sufficient\ndetail to identify the particular transaction or issue, but need not provide an explanation of its\n\nterms or its significance.\" Springfield School District, 2017 IL 120343, ¶64, 77 N.E.3d at 636.\nIn that case, a school board' s recital of a separation agreement with its superintendent consisted\n\nof the school board president stating that the board was considering an agenda item for \"approval\nof a resolution regarding the separation agreement[ ]\"\n\nas well as reading the text of the resolution\n\nitself: \"The Board President recommends that the Board of Education of Springfield School\nDistrict No. 186 vote to approve the separation agreement and release between Dr. Walter\n\nMilton, Jr., and the Board of Education.\" Springfield School District, 2017 IL 120343, ¶81, 77\nN.E.3d at 638. The Court concluded that the school board' s public recital was sufficient: \" The\n\nboard president recited the general nature of the matter under consideration— a separation\nagreement and release— and specific detail sufficient to identify the particular transaction— the\n\nseparation agreement was between Dr. Milton and the Board.\" Springfield School District, 2017\nIL 120343, ¶ 83, 77 N.E.3d at 638.\nIn Springfield School District, the Supreme Court distinguished a recent Appellate\n\nCourt decision in Allen v. Clark County Park District Board of Commissioners, in which the\nAppellate Court had concluded, in anticipation of the Supreme Court' s establishment of a legal\n\nstandard for a public recital, that \"[ w]hatever the standard might be for a public recital, the Board\nfailed to meet it in this case.\" Allen, 2016 IL App ( 4th) 150963, ¶ 31, 67 N.E.3d 536, 541 ( 2016).\n\nAs explained by the Supreme Court, the presiding officer of the public body in Allen had\npublicly recited the general nature of the two matters being considered:\n\nlease rates and revised\n\ncovenants. He did not, however, provide sufficient other information to inform the public of the\nspecific business being conducted:\n\nWhat type of real or personal property was being leased?\n\nWhat existing covenants were being revised?\" Springfield School District, 2017 IL 120343, ¶79,\n77 N.E.3d at 638. The Court indicated that a public recital must include such information to\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 6\n\nsatisfy the requirements of section 2(e) of OMA. Springfield School District, 2017 IL 120343,\n79, 81, 77 N.E.3d at 638.\nThe Council argued that its public recital before the vote on the settlement\n\nagreement satisfied the requirements of section 2(e), asserting that Springfield School District\nestablished that it was not required to explain the settlement agreement' s terms or its\n\nsignificance. Citing to that case, the Council argued, in relevant part:\nUnder section 2(e), the City was required to recite the \"nature of\nthe matter,\" which may be described in nonspecific terms, and\n\nother information\" to inform the public of the type of business\naddressed. [ Citation.] The City complied with the requirements\n\ndescribed by the Illinois Supreme Court by stating the nature of the\nmatter ( authorization of the mayor to sign a settlement agreement)\n\nand other information to inform the public (the purpose of such\nagreement being to compromise in pending litigation).[ 6]\nAdditionally, the Council stated that it had only one pending litigation matter. The Council\n\ncontended that \"WSPY and anyone who reads its website or listens to its radio station knows\nthis, and they know exactly what case is at issue.\" 7\nThe State' s Attorney' s Office disputed the Council' s claim that it had provided\n\nadequate information in its public recital:\nAll the public was told is that a settlement agreement was\nbeing voted on. The subject, type, purpose, etc. are complete\n\nunknowns. The generalization regarding it being for ongoing\nlitigation is an assumed element, which does not make the public\n\naware of anything. Was the settlement regarding a police matter?\nA zoning dispute? An exploding zeppelin? Was this for millions of\n\ndollars of tax payer funds? Apparently, that is not the public's\nbusiness in Sandwich.[ 8]\n\n6Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau (September 20, 2021), at 2.\n7Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau (September 20, 2021), at 3.\n8Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Public Access Bureau (September 24, 2021), at 3.\n\n\fThe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 7\n\nThis office has reviewed the verbatim recording of the portion of the meeting\n\npertaining to the settlement agreement. Addressing the settlement agreement as part of the\nMayor' s Report,\" Mayor Latham stated:\nAll right, item d. Before we have, move on to item d, I'm going to\n\nmake a statement on behalf of the City. Before the Council votes,\nI'll make the following statement: until the agreement is executed\n\nby all parties, the City will have no comment as the agreement is\nnot final. Once the agreement has been executed, the City intends\n\nto issue a statement. I ask the Council to, uh, move that, uh, you\nauthorize the mayor to execute a settlement agreement in the\n\ncompromise of pending litigation. Is there a motion to approve the\nsettlement agreement that the mayor would authorize and sign?[ 9]\nThe recording reflects that Alderman Whitecotton subsequently made the motion, which was\n\nseconded by Alderwoman Johnson. The Council then voted unanimously to approve the motion.\nHaving reviewed the verbatim recording and the parties' arguments, this office\nconcludes that the Council' s public recital failed to meet the requirements of section 2(e). The\n\nCouncil informed the public of the \"general nature of the matter being considered\" by stating that\nthe mayor sought Council authorization to execute a settlement agreement in connection with\n\npending litigation, but it did not provide adequate \" other information\" necessary to identify the\nspecific item of business or particular transaction upon which it was acting. The Council did not\n\nidentify the individual or entity that was the subject of the settlement agreement, nor did it\nprovide any information about the litigation to which it pertained, such as the general nature of\n\nthe underlying dispute. Although the Council contended it had only one litigation matter\npending and that the matter had been the subject of media reports, the requirement to provide an\n\nadequate public recital under section 2(e) of OMA is applicable regardless of whether the subject\nof final action may have been previously disseminated to the public in news reporting. The\n\nCouncil's recital that the settlement agreement was \"in compromise of pending litigation\" does\nnot in any way identify the particular transaction at issue. Accordingly, this office concludes that\n\nthe Council violated section 2(e) of OMA.\nIt appears that the settlement agreement at issue in this matter has already been\nexecuted, so no meaningful action can be taken at this time to remedy the Council' s violation of\n\nsection 2(e). This office reminds the Council to provide the public with sufficient detail to\nidentify a transaction before voting on the matter, regardless of whether it is labeled a\n\n9Sandwich City Council, Meeting, August 23, 2021, Audio File (on file with author).\n\n\fhe Honorable Rick Amato\n\nThe Honorable Todd Latham\nMay 16, 2022\n\nPage 8\n\nresolution\" or \"ordinance.\" Additional details may, for instance, include information about the\nparticular parties to pending litigation and the underlying dispute. The Council should be mindful\n\nof its obligation to conduct its future meetings in full compliance with OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\nC-0303 o 202c notice proper 2e pub recital improper mun\ncc:\n\nVia electronic mail\n\nMr. David Berault\nAssistant State' s Attorney\n\nDeKalb County State's Attorney's Office\n133 West State Street\n\nSycamore, Illinois 60178\ndberault@dekalbcounty. org\nVia electronic mail\n\nMs. Jessica Harrill\nAttorney for City of Sandwich\n\nFoster, Buick, Conklin & Lundgren, LLC\n100 South Latham, Suite 104\n\nSandwich, Illinois 60548\njharrill@fosterbuick. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city council's public recital before a final vote","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71154/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 16, 2022\n\nVia electronic mail\nThe Honorable Rick Amato\n\nState's Attorney\nDeKalb County State's Attorney's Office\n\n[street address redacted for site publication -- see original PDF]\nramato@dekalbcounty.org\nVia electronic mail\nThe Honorable Todd Latham\n\nMayor\nCity of Sandwich\n\n144 East Railroad Street\nSandwich, Illinois 60548\n\nmayor@sandwich.il.us\nRE: OMA Request for Review – 2021-PAC-C-0303 (2022 PAC 71154)\nDear Mr. Amato and Mr. Latham:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the City Council (Council) of the City of Sandwich (City) violated the public\nrecital requirements of OMA during its August 23, 2021, meeting.\nBACKGROUND\nOn August 27, 2021, Mr. Rick Amato and Mr. David Berault, on behalf of the\n\nDeKalb County State's Attorney's Office (State's Attorney's Office), submitted a Request for\nReview to the Public Access Bureau alleging that the Council violated section 2(e) of OMA (5\n\nILCS 120/2(e) (West 2020), as amended by Public Act 102-558, effective August 20, 2021) at its\nAugust 23, 2021, meeting by failing to recite with sufficient detail the nature of a matter under\n\nconsideration before the Council took final action. The State's Attorney's Office explained that\nthe Council voted to authorize the execution of a settlement agreement and provided this office\n\nwith a copy of a verbatim recording of the portion of the meeting pertaining to that vote. The\nState's Attorney's Office contended that the \" recitation was completely devoid of information as\n\nto the actual business being conducted[,]\" and that the public could not discern \" what was being\nconsidered in this vote.\" 1 The State's Attorney's Office also contended that the meeting's agenda\n\nlacked information about the settlement agreement in violation of section 2.02(c) of OMA (5\nILCS 120/ 2.02(c) (West 2020)). In particular, the State's Attorney's Office asserted that \" the\n\nlisted item contains no actual 'subject matter' regarding the agreement or litigation\" and \" did not\nprovide what litigation it was related to, how much the settlement was for, or who it was with.\" 2\nOn September 9, 2021, this office forwarded a copy of the Request for Review to\n\nthe Council and asked it to provide this office with copies of its August 23, 2021, meeting\nagenda and minutes, together with a written response to the State's Attorney's Office's OMA\n\nallegations. This office also asked the Council to provide a copy of a verbatim recording of the\nopen session, if available. On September 17, 2021, and September 20, 2021, this office received\n\nthe requested materials. On September 23, 2021, this office forwarded a copy of the Council's\nresponse to the State's Attorney's Office. The State's Attorney's Office replied on September 24,\n\n2021.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nSufficiency of Meeting Agenda\nSection 2.02(c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nOMA does not contain a definition of \" general subject matter.\"\n\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective\n\nJanuary 1, 2013, added section 2.02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\n\nbody would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\n\nwould be final action. And this just says that you have to have a\ngeneral notice if you' re going to have and take final action,\n\nas to generally what's going to be discussed so that – that\npeople who follow their units of local government know what\n\nthey're going to be acting upon. (Emphasis added.) Remarks of\nSen. Dillard, May 16, 2012, Senate Debate on House Bill No.\n\n4687, at 47.\nThe Public Access Bureau has determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\n\nnew city administrator to a five-year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate section 2.02(c) of OMA).\nIn its response to this office, the Council denied that it violated section 2.02(c)\n\nwith respect to its August 23, 2021, meeting agenda. The meeting agenda provided, in relevant\npart:\nMayor’ s Report: Todd Latham\n\nd. Motion to authorize Mayor to execute \" Settlement Agreement in\n\nCompromise of Pending Litigation\".[3]\nThe Council argued that section 2.02(c) \"only addresses an 'ordinance or resolution'\" and that the\nsettlement agreement at issue was not part of an ordinance or resolution. 4 It further argued that it\n\nhad provided sufficient information regarding the settlement agreement in accordance with the\nIllinois Supreme Court's decision in Board of Education of Springfield School District No. 186 v.\n3 City of Sandwich City Council, Agenda, Mayor's Report, Item d (August 23, 2021).\n4 Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\n\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 (2017). The Council asserted that\nit was not required to include any additional detail in its agenda.\nIn reply to that answer, the State's Attorne y's Office maintained that the agenda\n\nfailed to provide any information about the settlement agreement that the Council voted upon at\nthe meeting. The State's Attorney's Office highlighted that the agenda considered by the Court in\n\nSpringfield School District contained specific details about the separation agreement that was the\nsubject of a resolution voted on by the school board. The agenda included the name of the\n\nschool district employee at issue and a link to the resolution; the resolution also provided a link\nto the separation agreement itself. In contrast to that agenda, the State's Attorney's Office\n\nargued: \" The present scenario contained no parties to the agreement * * *, no accompanying\nresolution, no links to agreements – it contained no hint as to the purpose behind what was being\n\nsigned.\" 5\nAs a threshold matter, the Council asserts that section 2.02(c) is inapplicable to\nthis matter because the motion to authorize the mayor to execute the settlement agreement was\n\nnot a resolution or ordinance. Black's Law Dictionary defines \"resolution,\" in pertinent part, as:\nFormal action by a corporate board of directors or other corporate body authorizing a particular\n\nact, transaction, or appointment.\" Black's Law Dictionary (10th ed. 2014), available at Westlaw\nBLACKS. Even if the Council did not label the proposed course of action on the settlement\n\nagreement as a \" resolution,\" it voted to authorize a transaction by the mayor and therefore took\nfinal action on a \" resolution\" under the plain meaning of that word. Accordingly, the\n\nrequirements of section 2.02(c) applied to the action taken on the settlement agreement.\nBased on this office's review, the Council's August 23, 2021, meeting agenda set\nforth–– minimally–– the general subject matter of the issue that was the subject of final action.\n\nThe agenda provided the main elements of the issue— Council authorization for the mayor to\nexecute a settlement agreement. While more details in the agenda, such as the parties to the\n\npending litigation or the topic of the underlying dispute, would have better informed the public\nof the settlement agreement under consideration, section 2.02(c) does not require those details.\n\nSee Springfield School District, 2017 IL 120343, ¶33, 77 N.E.3d at 632 (noting that the posted\nagenda \" set forth the general subject matter— approval of a resolution regarding a separation\n\nagreement\" as well as specific details regarding the agreement, such as the specific \"employee\nwith whom the agreement had been negotiated\" and \" a link to the full text of the agreement\n\nitself.\"). Accordingly, this office concludes that the Council's agenda item concerning the\nsettlement agreement satisfied the minimum requirements of section 2.02(c) of OMA. This\n\noffice, however, encourages the Council to provide additional information about similar agenda\n\n5 Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Public Access Bureau (September 24, 2021), at 3.\n\nitems in the future in accordance with the spirit of the General Assembly's intent that \"public\nbodies exist to aid in the conduct of the people's business and that the people have a right to be\n\ninformed as to the conduct of their business.\" 5 ILCS 120/1 (West 2020).\nPublic Recital of Final Action\nSection 2(e) of OMA provides that \"[ n]o final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\n\nconsidered and other information that will inform the public of the business being conducted.\"\nAs the parties highlighted, the Illinois Supreme Court considered whether a\nschool board met the public recital requirements of section 2(e) in Springfield School District\n\nNo. 186, 2017 IL 120343, 77 N.E.3d 625. The Court held that \"under section 2(e) of the Open\nMeetings Act, a public recital must take place at the open meeting before the matter is voted\n\nupon; the recital must announce the nature of the matter under consideration, with sufficient\ndetail to identify the particular transaction or issue, but need not provide an explanation of its\n\nterms or its significance.\" Springfield School District, 2017 IL 120343, ¶64, 77 N.E.3d at 636.\nIn that case, a school board's recital of a separation agreement with its superintendent consisted\n\nof the school board president stating that the board was considering an agenda item for \"approval\nof a resolution regarding the separation agreement[ ]\"\n\nas well as reading the text of the resolution\n\nitself: \"The Board President recommends that the Board of Education of Springfield School\nDistrict No. 186 vote to approve the separation agreement and release between Dr. Walter\n\nMilton, Jr., and the Board of Education.\" Springfield School District, 2017 IL 120343, ¶81, 77\nN.E.3d at 638. The Court concluded that the school board's public recital was sufficient: \" The\n\nboard president recited the general nature of the matter under consideration— a separation\nagreement and release— and specific detail sufficient to identify the particular transaction— the\n\nseparation agreement was between Dr. Milton and the Board.\" Springfield School District, 2017\nIL 120343, ¶ 83, 77 N.E.3d at 638.\nIn Springfield School District, the Supreme Court distinguished a recent Appellate\n\nCourt decision in Allen v. Clark County Park District Board of Commissioners, in which the\nAppellate Court had concluded, in anticipation of the Supreme Court's establishment of a legal\n\nstandard for a public recital, that \"[ w]hatever the standard might be for a public recital, the Board\nfailed to meet it in this case.\" Allen, 2016 IL App (4th) 150963, ¶ 31, 67 N.E.3d 536, 541 (2016).\n\nAs explained by the Supreme Court, the presiding officer of the public body in Allen had\npublicly recited the general nature of the two matters being considered:\n\nlease rates and revised\n\ncovenants. He did not, however, provide sufficient other information to inform the public of the\nspecific business being conducted:\n\nWhat type of real or personal property was being leased?\n\nWhat existing covenants were being revised?\" Springfield School District, 2017 IL 120343, ¶79,\n77 N.E.3d at 638. The Court indicated that a public recital must include such information to\n\nsatisfy the requirements of section 2(e) of OMA. Springfield School District, 2017 IL 120343,\n79, 81, 77 N.E.3d at 638.\nThe Council argued that its public recital before the vote on the settlement\n\nagreement satisfied the requirements of section 2(e), asserting that Springfield School District\nestablished that it was not required to explain the settlement agreement's terms or its\n\nsignificance. Citing to that case, the Council argued, in relevant part:\nUnder section 2(e), the City was required to recite the \"nature of\nthe matter,\" which may be described in nonspecific terms, and\n\nother information\" to inform the public of the type of business\naddressed. [ Citation.] The City complied with the requirements\n\ndescribed by the Illinois Supreme Court by stating the nature of the\nmatter (authorization of the mayor to sign a settlement agreement)\n\nand other information to inform the public (the purpose of such\nagreement being to compromise in pending litigation).[ 6]\nAdditionally, the Council stated that it had only one pending litigation matter. The Council\n\ncontended that \"WSPY and anyone who reads its website or listens to its radio station knows\nthis, and they know exactly what case is at issue.\" 7\nThe State's Attorney's Office disputed the Council's claim that it had provided\n\nadequate information in its public recital:\nAll the public was told is that a settlement agreement was\nbeing voted on. The subject, type, purpose, etc. are complete\n\nunknowns. The generalization regarding it being for ongoing\nlitigation is an assumed element, which does not make the public\n\naware of anything. Was the settlement regarding a police matter?\nA zoning dispute? An exploding zeppelin? Was this for millions of\n\ndollars of tax payer funds? Apparently, that is not the public's\nbusiness in Sandwich.[ 8]\n\n6 Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau (September 20, 2021), at 2.\n7 Letter from Jessica A. Harrill, Foster, Buick, Conklin & Lundgren, LLC, to Teresa Lim, Assistant\nAttorney General, Public Access Bureau (September 20, 2021), at 3.\n8 Letter from Rick Amato, DeKalb County State's Attorney, Office of DeKalb County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Public Access Bureau (September 24, 2021), at 3.\n\nThis office has reviewed the verbatim recording of the portion of the meeting\n\npertaining to the settlement agreement. Addressing the settlement agreement as part of the\nMayor's Report,\" Mayor Latham stated:\nAll right, item d. Before we have, move on to item d, I'm going to\n\nmake a statement on behalf of the City. Before the Council votes,\nI'll make the following statement: until the agreement is executed\n\nby all parties, the City will have no comment as the agreement is\nnot final. Once the agreement has been executed, the City intends\n\nto issue a statement. I ask the Council to, uh, move that, uh, you\nauthorize the mayor to execute a settlement agreement in the\n\ncompromise of pending litigation. Is there a motion to approve the\nsettlement agreement that the mayor would authorize and sign?[ 9]\nThe recording reflects that Alderman Whitecotton subsequently made the motion, which was\n\nseconded by Alderwoman Johnson. The Council then voted unanimously to approve the motion.\nHaving reviewed the verbatim recording and the parties' arguments, this office\nconcludes that the Council's public recital failed to meet the requirements of section 2(e). The\n\nCouncil informed the public of the \"general nature of the matter being considered\" by stating that\nthe mayor sought Council authorization to execute a settlement agreement in connection with\n\npending litigation, but it did not provide adequate \" other information\" necessary to identify the\nspecific item of business or particular transaction upon which it was acting. The Council did not\n\nidentify the individual or entity that was the subject of the settlement agreement, nor did it\nprovide any information about the litigation to which it pertained, such as the general nature of\n\nthe underlying dispute. Although the Council contended it had only one litigation matter\npending and that the matter had been the subject of media reports, the requirement to provide an\n\nadequate public recital under section 2(e) of OMA is applicable regardless of whether the subject\nof final action may have been previously disseminated to the public in news reporting. The\n\nCouncil's recital that the settlement agreement was \"in compromise of pending litigation\" does\nnot in any way identify the particular transaction at issue. Accordingly, this office concludes that\n\nthe Council violated section 2(e) of OMA.\nIt appears that the settlement agreement at issue in this matter has already been\nexecuted, so no meaningful action can be taken at this time to remedy the Council's violation of\n\nsection 2(e). This office reminds the Council to provide the public with sufficient detail to\n\nresolution\" or \"ordinance.\" Additional details may, for instance, include information about the\nparticular parties to pending litigation and the underlying dispute. The Council should be mindful\n\nof its obligation to conduct its future meetings in full compliance with OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\nC-0303 o 202c notice proper 2e pub recital improper mun\ncc:\n\nVia electronic mail\n\nMr. David Berault\nAssistant State's Attorney\n\nDeKalb County State's Attorney's Office\n133 West State Street\n\nSycamore, Illinois 60178\ndberault@dekalbcounty. org\nVia electronic mail\n\nMs. Jessica Harrill\nAttorney for City of Sandwich\n\nFoster, Buick, Conklin & Lundgren, LLC\n100 South Latham, Suite 104\n\nSandwich, Illinois 60548\njharrill@fosterbuick. com"}
{"id":1377,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-07-21","case_number":null,"request_numbers":["71167"],"title":"Thornton Township Board violated OMA by inadequate personnel meeting agendas","filename":"71167, issued July 21, 2022.pdf","rel_path":null,"word_count":2100,"summary":"A requester alleged that the Thornton Township Board took final action on personnel hires and firings that were not listed on the agendas for its March 8 and March 22, 2022, meetings. The PAC determined that the Board failed to provide adequate notice for these actions as required by the Open Meetings Act.","plain_summary":"This determination addresses whether agendas for two Thornton Township Board meetings satisfied the notice requirement of section 2.02(c) of the Open Meetings Act for personnel actions taken at those meetings. The Public Access Bureau held that the Board violated section 2.02(c) because its boilerplate, singular-form 'Personnel' agenda headings (e.g., 'Appointment / New Hire') did not give adequate notice of three new hires approved at one meeting or two terminations approved at another, since the agendas failed to identify the job titles or general employee categories involved and understated the number of actions to be taken. The Bureau reasoned that an agenda must at least reference the general category of employees affected by a personnel action, and that repeating the same generic personnel section regardless of the scope of contemplated action does not fulfill OMA's purpose of informing the public what matters may be acted upon. The Bureau rejected the Board's argument that section 2.02(c) applies only to actions taken by 'resolution or ordinance,' finding that formal votes authorizing hires and firings constitute resolutions under the plain meaning of that term. The Bureau did not order a re-vote but stated the Board should include more descriptive personnel items on future agendas.","holding":"An agenda's personnel-action item must at least identify the general category of employees affected and accurately reflect the number/type of actions to be taken; boilerplate or singular generic headings that obscure the scope of contemplated personnel actions violate the section 2.02(c) requirement to state the 'general subject matter' of matters subject to final action.","legal_question":"Whether the Thornton Township Board violated section 2.02(c) of the Open Meetings Act by taking final action on personnel matters not adequately described on the meeting agendas.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Thornton Township Board","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of agenda descriptions for personnel hiring and firing actions taken by a township board.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/71167, issued July 21, 2022.pdf","sha256":"dcdeb94494df59163aa3f0d09331c9332b750ea88fd68b253149712abbb70315","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","personnel actions","public notice","township board","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 21, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Tiffany Nelson-Jaworski\nDel Galdo Law Group, LLC\n\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\n\njaworski@dlglawgroup.com\nRE: OMA Request for Review – 2022 PAC 71167\nDear\n\nand Ms. Nelson-Jaworski:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the agendas for the March 8, 2022, and March 22, 2022, meetings of the\nThornton Township Board ( Board) did not provide adequate notice of the Board' s personnel\n\nactions during those meetings.\nIn her Request for Review, received April 10, 2022,\nalleged that at the Board' s March 8, 2022, and March 22, 2022, meetings, the Board improperly\n\ntook final action on matters that were not listed on the meeting agendas. In particular, she\nalleged that the Board voted to make three hires that were not listed on the agenda at the former\n\nmeeting, and voted to approve two firings at the latter meeting that similarly were not listed on\nthat agenda.\nOn April 12, 2022, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide copies of any notices, agendas, open session minutes, and open session\naudio or video recordings from its March 8, 2022, and March 22, 2022, meetings. This office\n\nalso asked the Board to respond in writing to\n\nOMA allegations, addressing\n\nwhether it took final action on matters not listed on the agenda at each meeting. On May 5,\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Tiffany Nelson-Jaworski\nJuly 21, 2022\n\nPage 2\n\n2022, the Board's attorney furnished a written response. On May 25, 2022,\nsubmitted a reply. On June 1, 2022, the Board' s new attorney furnished this office with copies of\n\nthe requested meeting minutes.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nSection 2.02( c) of OMA ( 5 ILCS 120/ 2.02( c) ( West 2020)) provides that \"[ a] ny\n\nagenda required under this Section shall set forth the general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\"\n\nOMA does not define the term\n\ngeneral subject matter.\" However, the Senate debate on House Bill No. 4687, which, as Public\nAct 97- 827, effective January 1, 2013, added section 2.02( c) of OMA, indicates that the General\n\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT] here was just no real requirement as to how specific they\n\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you're going to have and take final action, as\nto generally what' s going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\n\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has previously determined that overly-generic agenda\nitems are too vague and imprecise to satisfy the requirement in section 2.02( c) of OMA that a\n\npublic body's agenda \" set forth the general subject matter\" of an item that will be the subject of\nfinal action at the meeting. For instance, the agenda item \" Personnel, Employments,\n\nResignations, Leaves, Retirements\" did not set forth the general subject matter of the various\nhirings, resignations, and retirements that a school board approved during a meeting, where no\n\npersonnel report was posted with the agenda nor any other notice given of the positions at issue.\nIll. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued August 28, 2018, at 4-5 (\"[ T] o comply with\n\nsection 2.02(c), an agenda item for personnel actions must at least reference the category or\ncategories of employees at issue, such as teachers, bus drivers, social workers, etc.\"); see also Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017, at 3-4 (agenda items \"Action\nRegarding Executive Session Issues\" and \" Personnel- Section 2(c)( 1)\" did not provide general\n\n\fMs. Tiffany Nelson-Jaworski\nJuly 21, 2022\n\nPage 3\n\nsubject matter of vote to appoint village administrator); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n62955, issued October 29, 2020, at 8 (agenda reference to \" personnel matters and/ or litigation\"\n\ndid not provide general subject matter of vote to approve separation agreements).\nHowever, a public body need not include specific details concerning its items\nintended for final action, so long as it sufficiently describes the general subject matter of the\n\naction in the context of the particular meeting. For example, the agenda item \"Discussion and\nPossible Action to Review Employee Contract/ Renewal\" gave sufficient notice of a city council' s\n\nvote to terminate the city manager, where the meeting was a special meeting with only that\naction item on the agenda and the public comments made prior to the consideration of that item\n\nreflect that the public was aware that the city manager's contract was at stake. Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 54626, issued August 28, 2018, at 2.\nIn its response to this office, the Board argued:\nThornton Township complied with the Open Meetings Act because\n\nthe March 8 and March 22 agendas plainly listed the hiring and\ntermination of employees as agenda items. This was sufficient\n\nnotice under the Open Meetings Act because it stated the \" general\nsubject matter\" of each meeting without naming which employees\n\nwould be hired or terminated.[1]\nThe Board also argued that section 2.02(c) does not apply to the hires and firings because they\nwere not undertaken via \" resolution or ordinance\" per the language of section 2.02( c). Further,\n\nthe Board's attorney claimed that a member of the Public Access Bureau had pre-approved the\nagenda items, despite this office having no pre- approval authority or process, but the Board' s law\n\nfirm was unable to provide any information concerning the alleged pre-approval.\nIn reply,\n\ncontended:\n\nI do believe that there should have been a job title listed on\nthe agenda. To continue to fire people under a general statement\n\nwith no guide for the public as to what the board meeting will\nentail seems sneaky.\n\nI understand not putting names on there for privacy reasons\nbut a position for action should be listed. How does the public\n\nknow what the board meetings are about if the details aren’ t listed\n\n1Letter from James M. Vasselli, Thornton Township Attorney, to Joshua Jones, Deputy Bureau\nChief (May 5, 2022), at 2.\n\n\fMs. Tiffany Nelson-Jaworski\nJuly 21, 2022\n\nPage 4\n\non the agenda. Isn't the point of action items so the public know\nwhat actions are being taken?[ 2]\nThe agendas for the Board' s March 8, 2022, and March 22, 2022, included nearly\n\nidentical \"Personnel\" sections, in addition to various other kinds of items. The agenda for the\nformer meeting stated:\nXI.\n\nPersonnel\nA.\n\nResignation / Retirement / Termination/\n\nB.\n\nTransfer / Promotion / Status Change\n\nC.\n\nAppointment / New Hire –\n\n1. Approve appointment of full-time Counsel,\nAttorney James Vasselli, of Del Galdo Law Group,\n\nLLC.[3]\nUnder that section of the agenda, the minutes document that the Board voted to approve the\nhiring of Mr. Vasselli, and then voted to approve the hiring of named individuals for three\n\npositions: Communications and Media Advisor, Inter-Governmental Liaison, and Senior\nAdvisor. 4 The minutes state that there were no resignations/ retirements/ terminations, nor any\n\ntransfers/promotions/status changes.5\nThe March 22, 2022, agenda stated:\nXI.\n\nPersonnel\nA.\n\nResignation / Retirement / Termination\n\nB.\n\nTransfer / Promotion / Status Change\n\n2E- mail from\n\nto Joshua Jones (May 25, 2022).\n\n3Thornton Township Board of Trustees, Agenda Item XI, Personnel (March 8, 2022).\n4Thornton Township Board of Trustees, Meeting, March 8, 2022, Minutes 3.\n5Thornton Township Board of Trustees, Meeting, March 8, 2022, Minutes 3.\n\n\fMs. Tiffany Nelson-Jaworski\nJuly 21, 2022\n\nPage 5\n\nC.\n\nAppointment / New Hire – [6]\n\nThe minutes reflect that under this section, the Board voted to terminate the HR Assistant\nManager and Ms. Wiedeman, the Executive Assistant to the Supervisor. 7\nIn this matter, the Board' s March 8, 2022, agenda gave ample notice that the\n\nBoard would vote to appoint Mr. Vasselli as the Township's attorney. The agenda indicated that\nthis would be a new hire, and gave Mr. Vasselli' s name and position. That agenda item,\n\nhowever, materially contrasts with the other personnel agenda items from the Board's March 8,\n2022, and March 22, 2022, meeting. For one thing, the inclusion of the line on the agenda for\n\nMr. Vasselli's hiring suggested that this was the one new hire to be approved at that meeting.\nThe use of the singular rather than plural in \" Appointment / New Hire\" likewise implied that just\n\nthat one new hire would be made, rather than the three additional new hires the Board approved\nduring the March 8, 2022, meeting. The same goes for the singular \" Resignation / Retirement /\n\nTermination\" on the latter meeting's agenda. Moreover, the Board did not include in the agendas\nthe job titles or general employee categories for the three new hires on March 8, 2022, or the two\n\nfirings on March 22, 2022. A member of the public reading the agendas would not have had\nsufficient notice of the general type of employees that the Board would hire at the former\n\nmeeting and fire at the latter meeting. Although the agendas listed the types of personnel actions\nthe Board took in mentioning hiring and termination, the boilerplate nature of the personnel\n\nsections does not provide adequate advance notice of the Board's final actions concerning those\nemployees. Repeating the same broad and generalized personnel section on the agenda for each\n\nmeeting regardless of the extent to which the public body is considering each type of personnel\naction listed does not comport with the purpose of giving notice under OMA: to inform the\n\npublic of the matters the public body might be acting upon at that meeting, rather than all items\nthe public body could conceivably act upon. 5 ILCS 120/ 1 (West 2020).\nThe Board' s claim that it could not have given insufficient notice for the personnel\n\naction items because the personnel actions were not accomplished via resolution or ordinance is\nunavailing. Black' s Law Dictionary defines \" resolution,\" in pertinent part, as: \" Formal action by\n\na corporate board of directors or other corporate body authorizing a particular act, transaction, or\nappointment.\"\n\nBlack' s Law Dictionary ( 10th ed. 2014), available at Westlaw BLACKS. Even if\n\nthe Board did not label the proposed hiring and firing actions as a \" resolution,\" it voted to\nauthorize those transactions therefore took final action on a \" resolution\" under the plain meaning\n\nof that word. Accordingly, this office concludes that the Board provided insufficient notice for\nthree hires approved during its March 8, 2022, meeting, and two firings approved during its\n\nMarch 22, 2022, meeting.\n6Thornton Township Board of Trustees, Agenda Item XI, Personnel ( March 22, 2022).\n7Thornton Township Board of Trustees, Meeting, March 22, 2022, Minutes 3-4.\n\n\fMs. Tiffany Nelson-Jaworski\nJuly 21, 2022\n\nPage 6\n\nUnder the circumstances at issue here, this office does not ask the Board to revote\non those matters, but to include more applicable and more descriptive items on future agendas to\n\nensure the requirements of section 2.02(c) are satisfied.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nquestions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n71167 o 202c notice improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda descriptions for personnel hiring and firing actions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71167/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 21, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Tiffany Nelson-Jaworski\nDel Galdo Law Group, LLC\n\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\n\njaworski@dlglawgroup.com\nRE: OMA Request for Review – 2022 PAC 71167\nDear\n\nand Ms. Nelson-Jaworski:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the agendas for the March 8, 2022, and March 22, 2022, meetings of the\nThornton Township Board (Board) did not provide adequate notice of the Board's personnel\n\nactions during those meetings.\nIn her Request for Review, received April 10, 2022,\nalleged that at the Board's March 8, 2022, and March 22, 2022, meetings, the Board improperly\n\ntook final action on matters that were not listed on the meeting agendas. In particular, she\nalleged that the Board voted to make three hires that were not listed on the agenda at the former\n\nmeeting, and voted to approve two firings at the latter meeting that similarly were not listed on\nthat agenda.\nOn April 12, 2022, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide copies of any notices, agendas, open session minutes, and open session\naudio or video recordings from its March 8, 2022, and March 22, 2022, meetings. This office\n\nalso asked the Board to respond in writing to\n\nOMA allegations, addressing\n\nwhether it took final action on matters not listed on the agenda at each meeting. On May 5,\n\n2022, the Board's attorney furnished a written response. On May 25, 2022,\nsubmitted a reply. On June 1, 2022, the Board's new attorney furnished this office with copies of\n\nthe requested meeting minutes.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nSection 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)) provides that \"[ a] ny\n\nagenda required under this Section shall set forth the general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\"\n\nOMA does not define the term\n\ngeneral subject matter.\" However, the Senate debate on House Bill No. 4687, which, as Public\nAct 97- 827, effective January 1, 2013, added section 2.02(c) of OMA, indicates that the General\n\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT] here was just no real requirement as to how specific they\n\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you're going to have and take final action, as\nto generally what's going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\n\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has previously determined that overly-generic agenda\nitems are too vague and imprecise to satisfy the requirement in section 2.02(c) of OMA that a\n\npublic body's agenda \" set forth the general subject matter\" of an item that will be the subject of\nfinal action at the meeting. For instance, the agenda item \" Personnel, Employments,\n\nResignations, Leaves, Retirements\" did not set forth the general subject matter of the various\nhirings, resignations, and retirements that a school board approved during a meeting, where no\n\npersonnel report was posted with the agenda nor any other notice given of the positions at issue.\nIll. Att' y Gen. PAC Req. Rev. Ltr. 53265, issued August 28, 2018, at 4-5 (\"[ T] o comply with\n\nsection 2.02(c), an agenda item for personnel actions must at least reference the category or\ncategories of employees at issue, such as teachers, bus drivers, social workers, etc.\"); see also Ill.\n\nAtt'y Gen. PAC Req. Rev. Ltr. 48630, issued August 31, 2017, at 3-4 (agenda items \"Action\nRegarding Executive Session Issues\" and \" Personnel- Section 2(c)(1)\" did not provide general\n\nsubject matter of vote to appoint village administrator); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n62955, issued October 29, 2020, at 8 (agenda reference to \" personnel matters and/ or litigation\"\n\ndid not provide general subject matter of vote to approve separation agreements).\nHowever, a public body need not include specific details concerning its items\nintended for final action, so long as it sufficiently describes the general subject matter of the\n\naction in the context of the particular meeting. For example, the agenda item \"Discussion and\nPossible Action to Review Employee Contract/ Renewal\" gave sufficient notice of a city council's\n\nvote to terminate the city manager, where the meeting was a special meeting with only that\naction item on the agenda and the public comments made prior to the consideration of that item\n\nreflect that the public was aware that the city manager's contract was at stake. Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 54626, issued August 28, 2018, at 2.\nIn its response to this office, the Board argued:\nThornton Township complied with the Open Meetings Act because\n\nthe March 8 and March 22 agendas plainly listed the hiring and\ntermination of employees as agenda items. This was sufficient\n\nnotice under the Open Meetings Act because it stated the \" general\nsubject matter\" of each meeting without naming which employees\n\nwould be hired or terminated.[1]\nThe Board also argued that section 2.02(c) does not apply to the hires and firings because they\nwere not undertaken via \" resolution or ordinance\" per the language of section 2.02(c). Further,\n\nthe Board's attorney claimed that a member of the Public Access Bureau had pre-approved the\nagenda items, despite this office having no pre- approval authority or process, but the Board's law\n\nfirm was unable to provide any information concerning the alleged pre-approval.\nIn reply,\n\ncontended:\n\nI do believe that there should have been a job title listed on\nthe agenda. To continue to fire people under a general statement\n\nwith no guide for the public as to what the board meeting will\nentail seems sneaky.\n\non the agenda. Isn't the point of action items so the public know\nwhat actions are being taken?[ 2]\nThe agendas for the Board's March 8, 2022, and March 22, 2022, included nearly\n\nidentical \"Personnel\" sections, in addition to various other kinds of items. The agenda for the\nformer meeting stated:\nXI.\n\nPersonnel\nA.\n\nResignation / Retirement / Termination/\n\nB.\n\nTransfer / Promotion / Status Change\n\nC.\n\nAppointment / New Hire –\n\n1. Approve appointment of full-time Counsel,\nAttorney James Vasselli, of Del Galdo Law Group,\n\nLLC.[3]\nUnder that section of the agenda, the minutes document that the Board voted to approve the\nhiring of Mr. Vasselli, and then voted to approve the hiring of named individuals for three\n\npositions: Communications and Media Advisor, Inter-Governmental Liaison, and Senior\nAdvisor. 4 The minutes state that there were no resignations/ retirements/ terminations, nor any\n\ntransfers/promotions/status changes.5\nThe March 22, 2022, agenda stated:\nXI.\n\nPersonnel\nA.\n\nResignation / Retirement / Termination\n\nB.\n\nTransfer / Promotion / Status Change\n\nC.\n\nAppointment / New Hire – [6]\n\nThe minutes reflect that under this section, the Board voted to terminate the HR Assistant\nManager and Ms. Wiedeman, the Executive Assistant to the Supervisor. 7\nIn this matter, the Board's March 8, 2022, agenda gave ample notice that the\n\nBoard would vote to appoint Mr. Vasselli as the Township's attorney. The agenda indicated that\nthis would be a new hire, and gave Mr. Vasselli's name and position. That agenda item,\n\nhowever, materially contrasts with the other personnel agenda items from the Board's March 8,\n2022, and March 22, 2022, meeting. For one thing, the inclusion of the line on the agenda for\n\nMr. Vasselli's hiring suggested that this was the one new hire to be approved at that meeting.\nThe use of the singular rather than plural in \" Appointment / New Hire\" likewise implied that just\n\nthat one new hire would be made, rather than the three additional new hires the Board approved\nduring the March 8, 2022, meeting. The same goes for the singular \" Resignation / Retirement /\n\nTermination\" on the latter meeting's agenda. Moreover, the Board did not include in the agendas\nthe job titles or general employee categories for the three new hires on March 8, 2022, or the two\n\nfirings on March 22, 2022. A member of the public reading the agendas would not have had\nsufficient notice of the general type of employees that the Board would hire at the former\n\nmeeting and fire at the latter meeting. Although the agendas listed the types of personnel actions\nthe Board took in mentioning hiring and termination, the boilerplate nature of the personnel\n\nsections does not provide adequate advance notice of the Board's final actions concerning those\nemployees. Repeating the same broad and generalized personnel section on the agenda for each\n\nmeeting regardless of the extent to which the public body is considering each type of personnel\naction listed does not comport with the purpose of giving notice under OMA: to inform the\n\npublic of the matters the public body might be acting upon at that meeting, rather than all items\nthe public body could conceivably act upon. 5 ILCS 120/ 1 (West 2020).\nThe Board's claim that it could not have given insufficient notice for the personnel\n\naction items because the personnel actions were not accomplished via resolution or ordinance is\nunavailing. Black's Law Dictionary defines \" resolution,\" in pertinent part, as: \" Formal action by\n\na corporate board of directors or other corporate body authorizing a particular act, transaction, or\nappointment.\"\n\nBlack's Law Dictionary (10th ed. 2014), available at Westlaw BLACKS. Even if\n\nthe Board did not label the proposed hiring and firing actions as a \" resolution,\" it voted to\nauthorize those transactions therefore took final action on a \" resolution\" under the plain meaning\n\nof that word. Accordingly, this office concludes that the Board provided insufficient notice for\nthree hires approved during its March 8, 2022, meeting, and two firings approved during its\n\nUnder the circumstances at issue here, this office does not ask the Board to revote\non those matters, but to include more applicable and more descriptive items on future agendas to\n\nensure the requirements of section 2.02(c) are satisfied.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nquestions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n71167 o 202c notice improper mun"}
{"id":1379,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-01-12","case_number":null,"request_numbers":["71217"],"title":"Village of Bartonville violated Open Meetings Act by refusing to provide closed session recording","filename":"71217, issued January 12, 2024__1.pdf","rel_path":null,"word_count":2616,"summary":"Ms. Tanya Koonce alleged that the Village of Bartonville Board improperly entered closed session to discuss a volunteer firefighter's performance and FOIA response strategies. The PAC determined that because the Board failed to provide the requested verbatim recording and unredacted minutes, it could not verify the legality of the closed session and requested the release of non-exempt portions.","plain_summary":"A reporter alleged that a Village Board improperly discussed a volunteer firefighter and a FOIA response in closed session. The Illinois Attorney General's Public Access Counselor found that the Board violated the Open Meetings Act by refusing to provide the closed session recording and unredacted minutes for confidential review, as required by law. The determination did not reach a final conclusion on whether the closed session discussion itself was improper.","holding":"","legal_question":"Whether the Village of Bartonville Board violated the Open Meetings Act by discussing FOIA response strategies and volunteer performance in a closed session under section 2(c)(1).","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(1)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(1)","5 ILCS 120/2(c)(1)"],"public_body":"Village of Bartonville","requesting_party":"Ms. Tanya Koonce","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a closed session to discuss the performance of a volunteer firefighter and the Village's strategy for responding to a FOIA request.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_b/71217, issued January 12, 2024.pdf","sha256":"1a66e04bb5b5305e46bdc147e5613a706385e7d5a84f3557eeaa6f80921ccbf3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","volunteer firefighter","meeting minutes","verbatim recording","personnel matters"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATEOFILLI ors\nKWAMERAO L\nATrQR EY GEJ\\'ERAI.\n\nJanuary 12, 2024\n\nVia electronic mail\nMs. Tanya Koonce\ntkoonce@week.com\nVia electronic mail\nMr. Christopher J. Jump\nDavis & Campbell L.L.C.\n[street address redacted for site publication -- see original PDF]\ncjjump@dcamplaw.com\nRE: OMA Request for Review - 2022 PAC 71217\nDear Ms. Koonce and Mr. Jump:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2022)).\n\nBACKGROUND\nOn April 12, 2022, this office received Ms. Tanya Koonce's Request for Review\nalleging that the Board improperly entered into closed session during its April 11, 2022, meeting\npursuant to section 2(c)(l) of OMA (5 ILCS 120/2(c)( l) (West 2020)). Specifically, Ms.\nKoonce alleged that the Board improperly discussed the performance of a volunteer f irefighter\nwhere the agenda referred to \"specific employees\" and how the Village could respond to a\nFreedom oflnfonnation Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) request for related\nrecords.\nOn April 19, 2022, this office sent a copy of the Request for Review to the Board\nand asked it to provide a written response to the allegation in Ms. Koonce's Request for Review,\nalong with copies of the April 11, 2022, meeting agenda, open and closed session meeting\n500 South 2n<l Street\nSpringticld, minois 62701\n(21 7) 782-1090 • Fax: (217) 782-7046\n\nI l 5 South LaSalle Street\nChicago, Illinois 60603\n(312) 14-3000 • Fax: (312) 8 I 4-3806\n\n1745 lnno\\'alion Dri\\'c:, Suite C\nCarbondale. lllinoi� 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual \" i· tb hearing or spcccb disabilities can reach u by u ing the 7-1-1 relay service.\nww,v. I lhnoisAttomeyGencraLgov\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage 2\nminutes, and closed session verbatim recording for this office's confidential review. On April\n28, 2022, the counsel for the Board provided a written response, but furnished only a redacted\ncopy of the closed session minutes and refused to provide the verbatim recording; counsel\nasserted that disclosing the unredacted minutes and verbatim recording for this office's\nconfidential review would waive the attorney-client privilege. On May 3, 2022, this office\nforwarded a copy of the Board's response to Ms. Koonce; she did not reply.\nDETERMINATION\nDuty to Provide Records to the Public Access Counselor\nAs an initial matter, this office will address the Board's assertion that the attorney­\nclient privilege exempts the Board from providing this office with the verbatim recording and\nunredacted closed session minutes of its April 11, 2022, meeting. In its response to this office,\nthe Board cited Illinois Supreme Court Rule 201(b)(2) (Ill. S. Ct. R. 201(b)(2) (effective March\n17, 2023)), which provides, in pertinent part:\nAll matters that are privileged against disclosure on the trial,\nincluding privileged communications between a party or his agent\nand the attorney for the party, are privileged against disclosure\nthrough any discovery procedure. Material prepared by or for a\nparty in preparation for trial is subject to discovery only if it does\nnot contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney. (Emphasis added.)\nHowever, the Request for Review process does not involve the discovery process. To the extent\nthat the Board contends that the verbatim recording and closed session minutes are otherwise\nprotected by the attorney-client privilege, Illinois Supreme Comt Rule of Professional Conduct\n1.6 (Ill. S. Ct. R. Profl Conduct 1.6 (effective January 1, 2016)) provides, in pertinent part:\n(a) A lawyer shall not reveal information relating to the\nrepresentation of a client unless the client gives informed consent,\nthe disclosure is impliedly authorized in order to carry out the\nrepresentation, or the disclosure is permitted by paragraph (b) or\nrequired by paragraph (c).\n(b) A lawyer may reveal information relating to the representation\nof a client to the extent the lawyer reasonably believes necessary:\n\n***\n\nOffice of the Illinois Attorney General\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage 3\n(6) to comply with other law or a court order[.]\nSection 3.5(b) of OMA (5 ILCS 120/3.5(b) (West 2022)) governs the process for provision of\nrecords pursuant to a Request for Review, stating, in pertinent part:\nThe Public Access Counselor shall specify the records or other\ndocuments that the public body shall furnish to facilitate. the\nreview. Within 7 working days after receipt of the request for\nreview, the public body shall provide copies of the records\nrequested and shall otherwise fully cooperate with the Public\nAccess Counselor. If a public body fails to furnish specified\nrecords pursuant to this Section, or if otherwise necessary, the\nAttorney General may issue a subpoena to any person or public\nbody having knowledge of or records pertaining to an alleged\nviolation of this Act. For purposes of conducting a thorough\nreview, the Public Access Counselor has the same right to\nexamine a verbatim recording of a meeting closed to the public\nor the minutes of a closed meeting as does a court in a civil\naction brought to enforce this Act. (Emphasis added.)\nCorrespondingly, section 2.06(e) (5 ILCS 120/2.06(e) (West 2022)) provides, in pertinent part:\nUnless the public body has made a determination that the verbatim\nrecording no longer requires confidential treatment or otherwise\nconsents to disclosure, the verbatim record of a meeting closed to\nthe public shall not be open for public inspection or subject to\ndiscovery in any administrative or judicial proceeding other than\none brought to enforce this Act. In the case of a civil action\nbrought to enforce this Act, the court, if the judge believes such an\nexamination is necessary, must conduct such in camera\nexamination of the verbatim record as it finds appropriate in order\nto determine whether there has been a violation of this Act.\nThus, the plain language of OMA authorizes the Public Access Counselor to\nreview a verbatim recording of a meeting closed to the public in order to conduct a thorough\nreview, and the public body has a duty to provide those records. Pursuant to the exception in\nIllinois Supreme Court Rule 1.6 for revealing information to comply with a law, complying with\nthis office's request to confidentially review the closed session verbatim recording law would not\nviolate the attorney-client privilege. Nor would it risk further dissemination of the recording:\n\nOffice of the Illinois Attorney General\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage 4\nRecords that are obtained by the Public Access Counselor\nfrom a public body for purposes of addressing a request for review\nunder this Section 3.5 may not be disclosed to the public, including\nthe requester, by the Public Access Counselor. Those records,\nwhile in the possession of the Public Access Counselor, shall be\nexempt from disclosure by the Public Access Counselor under the\nFreedom oflnformation Act. 5 ILCS 120/3.S(g) (West 2022).\nOn May 20, 2022, the Board suggested that this office should issue a subpoena for\nthe records. While section 3 .5(b) of OMA does provide this office with the authority to issue a\nsubpoena, it also unambiguously provides this office with the authority to review verbatim\nrecordings and minutes of closed meetings and requires public bodies to \"provide copies of the\nrecords requested and * * * otherwise fully cooperate with the Public Access Counselor.\" The\nBoard violated OMA by failing to provide this office with a verbatim recording and minutes of\nits closed meeting on April 11, 2022.\nClosed Meeting Procedure\nSection 2a of OMA (5 ILCS 120/2a (West 2020)), provides, in pertinent part:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nSection 2(c)( l) of OMA permits a public body to enter closed session to discuss \"[t]he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees, specific individuals who serve as independent contractors in a park, recreational, or\neducational setting, or specific volunteers of the public body or legal counsel for the public\nbody[.]\"\nThe agenda for the Board's April 11, 2022, meeting listed \"Motion to approve a\nclosed session pursuant to 5 ILCS 120 2(c) 1, the appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees.\" 1 The minutes reflect that Board\nmembers \"motioned to approve a closed session pursuant to 5ILCS 120 2(c)l .\" 2\n1\n\nI (April 11, 2022).\n2\n\nVillage of Bartonville Board of Trustees, Meeting, Agenda Item Trustee Reports, Trustee Donley\nVillage of Bartonville Board ofTrustees, Meeting, April 11, 2022, Minute 5.\n\nOffice of the Illinois Attorney General\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage 5\nIn its response to this office, the Board confirmed that, while the agenda included\nan abbreviated version of the section 2(c)(l) exception that referred only to \"employees,\" the\nclosed session concerned volunteer firefighters. The Attorney General has issued a binding\nopinion concluding that a public body may satisfy section 2a by stating the statutory subjection\nof the relevant exception, or by reciting or paraphrasing the statutory language of the exception.\nIll. Att'y Gen. Pub. Acc. Op. No. 15-007, issued September 16, 2015, at 4-5 (public body\nentering closed session pursuant to section 2(c)(l ) must in open session either announce that it\nintends to close the meeting pursuant to \"section 2(c)(l )\" or recite language from section 2(c)(l )\nthat sufficiently identifies that exception). Although the public would have been better informed\nif the Board had included in its recital the entirety of the section 2(c)( 1) exception, or read only\nthe language for \"specific volunteers of the public body,\" the Board adequately identified the\nexception by stating its statutory subjection. Therefore, the Board did not violate section 2a of\nOMA during its April 11, 2022, meeting.\nScope of the Section 2(c)(l) Exception\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Accordingly, section\n2(a) of OMA3 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. 4 The\nsection 2(c) exceptions are to be \"strictly constrned, extending only to subjects clearly within\ntheir scope.\" 5 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996-97 (4th Dist. 2005) (strictly\nconstruing OMA section 2(c)(1)6).\nThe section 2(c)( l ) exception is designed to protect the reputation and identity of\nspecific individuals. See,for example, Ill. Att'y Gen. Pub. Acc. Op. No. 15-007, at 4 (finding\nthat discussions concerning the elimination of a job position held by a single employee for\nbudgetary reasons would not implicate an employee's reputation, and therefore did not fall within\nthe exception in section 2(c)(l)); Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December 23,\n2016, at 4 (section 2(c)(l) did not authorize discussion of across-the-board salary increase for a\nbroad category of employees). In strictly construing the scope of section 2(c)(1 ), this office has\ndetermined that even when a public body's extraneous discussion beyond the scope of section\n2(c)(l) is not extensive, it may nonetheless violate OMA where that discussion is \"reasonably\n5 ILCS 120/2(a) (West 2021 Supp.).\n\n3\n\n4\n\n5 ILCS 120/2(c) (West 2021 Supp.).\n\n5\n\n5 ILCS 120/2(b) (West 2021 Supp.).\n\n6\n\n5 ILCS 120/2(c)(l) (West 2021 Supp.).\n\nOffice of the Illinois Attorney General\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage 6\nsegregable from the parts concerning specific employees' job performance.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 70604, issued November 29, 2022.\nThe Board's response to this office argued that the entirety of its closed session\ndiscussion fell within the scope of section 2(c)(1 ). The Board further argued that, though it\ndiscussed the potential release of records under FOIA, this discussion \"pertained directly to the\ndiscipline of the specified volunteer firefighter. Counsel for the Village is allowed to review the\nFOIA request and make recommendations as to what can be redacted under Section 7 - those\ncommunications would be privileged and confidential. \" 7\nHowever, OMA does not contain a general exception for privileged\ncommunication from an attorney, nor does it contain an exception that incorporates other areas\nof privilege under law. 8 Instead, section 2(c)(l l) provides that a public body may hold a closed\nmeeting to discuss:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds that\nan action is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\nThe Board did not argue that its discussion concerned pending or probable litigation, nor did this\noffice's review of the record provide any indication that litigation on any item discussed was\npending or probable. Furthermore, as discussed above, a public body is required to provide a\ncitation to the specific exception which authorizes a closed meeting; the Board only cited section\n2(c)(l).\nThis office's review of the portions of the closed session minutes finds that, while\nmuch of the closed meeting concerned the performance and discipline of specific volunteers or\nemployees, other portions concern more generalized employment and policy matters, including\ndiscussion of how firefighters are compensated and general procedural questions regarding\ndiscipline. This portion of the Board's discussion clearly exceeded the scope of the section\n2(c)(I) exception by straying from a discussion of specific employees to broader matters\ninvolving the terms of agreement for all firefighters. Likewise, Board's discussion of a FOIA\n7\n\nLetter from Christopher J. Jump, Davis & Campbell LLC, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau (April 28, 2022), at 2.\nCompare 5 ILCS 140/7(1 )(a) (West 2020) (exempting from disclosure under FOTA\n\"[i]nformation specifically prohibited from di clo ure by federal or State law or rules and regulations implementing\nfederal or State law.\"\n8\n\nOffice of the Illinois Attorney General\n\n\fMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage?\nrequest and potential response exceeded the exception when the Board discussed provisions of\nFOIA rather than describing specific records that relate to individual employees. These portions\nof the Board's discussion were \"reasonably segregable from the parts concerning specific\nemployees' job performance.\" Additionally, because the Board has failed to comply with its duty\nto provide a verbatim recording and unredacted minutes under section 3 .S(b) of OMA, this office\nis unable to conclude that the unreviewed portions of the Board's closed meeting fell within the\nscope of section 2(c)(J).\nIn accordance with this determination, the Public Access Bureau requests that the\nBoard release the portions of the verbatim recording and closed meeting minutes of its April 11,\n2022, closed meeting that did not directly pertain to the discipline or performance of specific\nvolunteers, as well as all portions redacted from the closed meeting minutes provided to this\noffice.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin.silver@ilag.gov or (773) 590-7878.\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n71217 o 2c 1 proper improper 35b improper mun\ncc:\n\nVia electronic mail\nThe Honorable Leon Ricca\nVillage President\nVillage of Bartonville\n5912 South Adams Street\nBartonville, 11 linois 61607\nmayor@bartonville.org\n\nOffice of the Illinois Anomey General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a volunteer's performance and FOIA strategy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71217/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATEOFILLI ors\nKWAMERAO L\nATrQR EY GEJ\\'ERAI.\n\nJanuary 12, 2024\n\nVia electronic mail\nMs. Tanya Koonce\ntkoonce@week.com\nVia electronic mail\nMr. Christopher J. Jump\nDavis & Campbell L.L.C.\n[street address redacted for site publication -- see original PDF]\ncjjump@dcamplaw.com\nRE: OMA Request for Review - 2022 PAC 71217\nDear Ms. Koonce and Mr. Jump:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2022)).\n\nBACKGROUND\nOn April 12, 2022, this office received Ms. Tanya Koonce's Request for Review\nalleging that the Board improperly entered into closed session during its April 11, 2022, meeting\npursuant to section 2(c)(l) of OMA (5 ILCS 120/2(c)(l) (West 2020)). Specifically, Ms.\nKoonce alleged that the Board improperly discussed the performance of a volunteer f irefighter\nwhere the agenda referred to \"specific employees\" and how the Village could respond to a\nFreedom oflnfonnation Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) request for related\nrecords.\nOn April 19, 2022, this office sent a copy of the Request for Review to the Board\nand asked it to provide a written response to the allegation in Ms. Koonce's Request for Review,\nalong with copies of the April 11, 2022, meeting agenda, open and closed session meeting\n500 South 2n<l Street\nSpringticld, minois 62701\n(21 7) 782-1090 • Fax: (217) 782-7046\n\nI l 5 South LaSalle Street\nChicago, Illinois 60603\n(312) 14-3000 • Fax: (312) 8 I 4-3806\n\n1745 lnno\\'alion Dri\\'c:, Suite C\nCarbondale. lllinoi� 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual \" i· tb hearing or spcccb disabilities can reach u by u ing the 7-1-1 relay service.\n\nminutes, and closed session verbatim recording for this office's confidential review. On April\n28, 2022, the counsel for the Board provided a written response, but furnished only a redacted\ncopy of the closed session minutes and refused to provide the verbatim recording; counsel\nasserted that disclosing the unredacted minutes and verbatim recording for this office's\nconfidential review would waive the attorney-client privilege. On May 3, 2022, this office\nforwarded a copy of the Board's response to Ms. Koonce; she did not reply.\nDETERMINATION\nDuty to Provide Records to the Public Access Counselor\nAs an initial matter, this office will address the Board's assertion that the attorney­\nclient privilege exempts the Board from providing this office with the verbatim recording and\nunredacted closed session minutes of its April 11, 2022, meeting. In its response to this office,\nthe Board cited Illinois Supreme Court Rule 201(b)(2) (Ill. S. Ct. R. 201(b)(2) (effective March\n17, 2023)), which provides, in pertinent part:\nAll matters that are privileged against disclosure on the trial,\nincluding privileged communications between a party or his agent\nand the attorney for the party, are privileged against disclosure\nthrough any discovery procedure. Material prepared by or for a\nparty in preparation for trial is subject to discovery only if it does\nnot contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney. (Emphasis added.)\nHowever, the Request for Review process does not involve the discovery process. To the extent\nthat the Board contends that the verbatim recording and closed session minutes are otherwise\nprotected by the attorney-client privilege, Illinois Supreme Comt Rule of Professional Conduct\n1.6 (Ill. S. Ct. R. Profl Conduct 1.6 (effective January 1, 2016)) provides, in pertinent part:\n(a) A lawyer shall not reveal information relating to the\nrepresentation of a client unless the client gives informed consent,\nthe disclosure is impliedly authorized in order to carry out the\nrepresentation, or the disclosure is permitted by paragraph (b) or\nrequired by paragraph (c).\n\n(6) to comply with other law or a court order[.]\nSection 3.5(b) of OMA (5 ILCS 120/3.5(b) (West 2022)) governs the process for provision of\nrecords pursuant to a Request for Review, stating, in pertinent part:\nThe Public Access Counselor shall specify the records or other\ndocuments that the public body shall furnish to facilitate. the\nreview. Within 7 working days after receipt of the request for\nreview, the public body shall provide copies of the records\nrequested and shall otherwise fully cooperate with the Public\nAccess Counselor. If a public body fails to furnish specified\nrecords pursuant to this Section, or if otherwise necessary, the\nAttorney General may issue a subpoena to any person or public\nbody having knowledge of or records pertaining to an alleged\nviolation of this Act. For purposes of conducting a thorough\nreview, the Public Access Counselor has the same right to\nexamine a verbatim recording of a meeting closed to the public\nor the minutes of a closed meeting as does a court in a civil\naction brought to enforce this Act. (Emphasis added.)\nCorrespondingly, section 2.06(e) (5 ILCS 120/2.06(e) (West 2022)) provides, in pertinent part:\nUnless the public body has made a determination that the verbatim\nrecording no longer requires confidential treatment or otherwise\nconsents to disclosure, the verbatim record of a meeting closed to\nthe public shall not be open for public inspection or subject to\ndiscovery in any administrative or judicial proceeding other than\none brought to enforce this Act. In the case of a civil action\nbrought to enforce this Act, the court, if the judge believes such an\nexamination is necessary, must conduct such in camera\nexamination of the verbatim record as it finds appropriate in order\nto determine whether there has been a violation of this Act.\nThus, the plain language of OMA authorizes the Public Access Counselor to\nreview a verbatim recording of a meeting closed to the public in order to conduct a thorough\nreview, and the public body has a duty to provide those records. Pursuant to the exception in\nIllinois Supreme Court Rule 1.6 for revealing information to comply with a law, complying with\nthis office's request to confidentially review the closed session verbatim recording law would not\nviolate the attorney-client privilege. Nor would it risk further dissemination of the recording:\n\nRecords that are obtained by the Public Access Counselor\nfrom a public body for purposes of addressing a request for review\nunder this Section 3.5 may not be disclosed to the public, including\nthe requester, by the Public Access Counselor. Those records,\nwhile in the possession of the Public Access Counselor, shall be\nexempt from disclosure by the Public Access Counselor under the\nFreedom oflnformation Act. 5 ILCS 120/3.S(g) (West 2022).\nOn May 20, 2022, the Board suggested that this office should issue a subpoena for\nthe records. While section 3.5(b) of OMA does provide this office with the authority to issue a\nsubpoena, it also unambiguously provides this office with the authority to review verbatim\nrecordings and minutes of closed meetings and requires public bodies to \"provide copies of the\nrecords requested and * * * otherwise fully cooperate with the Public Access Counselor.\" The\nBoard violated OMA by failing to provide this office with a verbatim recording and minutes of\nits closed meeting on April 11, 2022.\nClosed Meeting Procedure\nSection 2a of OMA (5 ILCS 120/2a (West 2020)), provides, in pertinent part:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nSection 2(c)(l) of OMA permits a public body to enter closed session to discuss \"[t]he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees, specific individuals who serve as independent contractors in a park, recreational, or\neducational setting, or specific volunteers of the public body or legal counsel for the public\nbody[.]\"\nThe agenda for the Board's April 11, 2022, meeting listed \"Motion to approve a\nclosed session pursuant to 5 ILCS 120 2(c) 1, the appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees.\" 1 The minutes reflect that Board\nmembers \"motioned to approve a closed session pursuant to 5ILCS 120 2(c)l.\" 2\n1\n\nI (April 11, 2022).\n2\n\nVillage of Bartonville Board of Trustees, Meeting, Agenda Item Trustee Reports, Trustee Donley\n\nIn its response to this office, the Board confirmed that, while the agenda included\nan abbreviated version of the section 2(c)(l) exception that referred only to \"employees,\" the\nclosed session concerned volunteer firefighters. The Attorney General has issued a binding\nopinion concluding that a public body may satisfy section 2a by stating the statutory subjection\nof the relevant exception, or by reciting or paraphrasing the statutory language of the exception.\nIll. Att'y Gen. Pub. Acc. Op. No. 15-007, issued September 16, 2015, at 4-5 (public body\nentering closed session pursuant to section 2(c)(l) must in open session either announce that it\nintends to close the meeting pursuant to \"section 2(c)(l)\" or recite language from section 2(c)(l)\nthat sufficiently identifies that exception). Although the public would have been better informed\nif the Board had included in its recital the entirety of the section 2(c)(1) exception, or read only\nthe language for \"specific volunteers of the public body,\" the Board adequately identified the\nexception by stating its statutory subjection. Therefore, the Board did not violate section 2a of\nOMA during its April 11, 2022, meeting.\nScope of the Section 2(c)(l) Exception\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Accordingly, section\n2(a) of OMA3 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. 4 The\nsection 2(c) exceptions are to be \"strictly constrned, extending only to subjects clearly within\ntheir scope.\" 5 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996-97 (4th Dist. 2005) (strictly\nconstruing OMA section 2(c)(1)6).\nThe section 2(c)(l) exception is designed to protect the reputation and identity of\nspecific individuals. See,for example, Ill. Att'y Gen. Pub. Acc. Op. No. 15-007, at 4 (finding\nthat discussions concerning the elimination of a job position held by a single employee for\nbudgetary reasons would not implicate an employee's reputation, and therefore did not fall within\nthe exception in section 2(c)(l)); Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December 23,\n2016, at 4 (section 2(c)(l) did not authorize discussion of across-the-board salary increase for a\nbroad category of employees). In strictly construing the scope of section 2(c)(1), this office has\ndetermined that even when a public body's extraneous discussion beyond the scope of section\n2(c)(l) is not extensive, it may nonetheless violate OMA where that discussion is \"reasonably\n5 ILCS 120/2(a) (West 2021 Supp.).\n\n3\n\n4\n\n5 ILCS 120/2(c) (West 2021 Supp.).\n\n5\n\nsegregable from the parts concerning specific employees' job performance.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 70604, issued November 29, 2022.\nThe Board's response to this office argued that the entirety of its closed session\ndiscussion fell within the scope of section 2(c)(1). The Board further argued that, though it\ndiscussed the potential release of records under FOIA, this discussion \"pertained directly to the\ndiscipline of the specified volunteer firefighter. Counsel for the Village is allowed to review the\nFOIA request and make recommendations as to what can be redacted under Section 7 - those\ncommunications would be privileged and confidential. \" 7\nHowever, OMA does not contain a general exception for privileged\ncommunication from an attorney, nor does it contain an exception that incorporates other areas\nof privilege under law. 8 Instead, section 2(c)(l l) provides that a public body may hold a closed\nmeeting to discuss:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds that\nan action is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\nThe Board did not argue that its discussion concerned pending or probable litigation, nor did this\noffice's review of the record provide any indication that litigation on any item discussed was\npending or probable. Furthermore, as discussed above, a public body is required to provide a\ncitation to the specific exception which authorizes a closed meeting; the Board only cited section\n2(c)(l).\nThis office's review of the portions of the closed session minutes finds that, while\nmuch of the closed meeting concerned the performance and discipline of specific volunteers or\nemployees, other portions concern more generalized employment and policy matters, including\ndiscussion of how firefighters are compensated and general procedural questions regarding\ndiscipline. This portion of the Board's discussion clearly exceeded the scope of the section\n2(c)(I) exception by straying from a discussion of specific employees to broader matters\ninvolving the terms of agreement for all firefighters. Likewise, Board's discussion of a FOIA\n7\n\nLetter from Christopher J. Jump, Davis & Campbell LLC, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau (April 28, 2022), at 2.\nCompare 5 ILCS 140/7(1)(a) (West 2020) (exempting from disclosure under FOTA\n\"[i]nformation specifically prohibited from di clo ure by federal or State law or rules and regulations implementing\nfederal or State law.\"\n8\n\nOffice of the Illinois Attorney General\n\nMs. Tanya Koonce\nMr. Christopher J. Jump\nJanuary 12, 2024\nPage?\nrequest and potential response exceeded the exception when the Board discussed provisions of\nFOIA rather than describing specific records that relate to individual employees. These portions\nof the Board's discussion were \"reasonably segregable from the parts concerning specific\nemployees' job performance.\" Additionally, because the Board has failed to comply with its duty\nto provide a verbatim recording and unredacted minutes under section 3.S(b) of OMA, this office\nis unable to conclude that the unreviewed portions of the Board's closed meeting fell within the\nscope of section 2(c)(J).\nIn accordance with this determination, the Public Access Bureau requests that the\nBoard release the portions of the verbatim recording and closed meeting minutes of its April 11,\n2022, closed meeting that did not directly pertain to the discipline or performance of specific\nvolunteers, as well as all portions redacted from the closed meeting minutes provided to this\noffice.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin.silver@ilag.gov or (773) 590-7878.\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n71217 o 2c 1 proper improper 35b improper mun\ncc:\n\nVia electronic mail\nThe Honorable Leon Ricca\nVillage President\nVillage of Bartonville\n5912 South Adams Street\nBartonville, 11 linois 61607\nmayor@bartonville.org\n\nOffice of the Illinois Anomey General"}
{"id":1380,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-13","case_number":null,"request_numbers":["71226"],"title":"Village of Albany Board cleared of unnoted closed meeting violation","filename":"71226, issued June 13, 2023.pdf","rel_path":null,"word_count":3682,"summary":"A Village Trustee alleged that members of the Village of Albany Board of Trustees held improper, unnoticed meetings to discuss public business. The PAC determined that there was insufficient evidence to conclude that a violation of the Open Meetings Act occurred.","plain_summary":"A local official complained that members of the Village Board held secret, private meetings to discuss village business. The Attorney General's office investigated but found there wasn't enough evidence to prove that an illegal meeting took place. The office closed the case but reminded the Board to be careful about how they communicate to ensure they follow open meeting laws.","holding":"The PAC was unable to conclude that the Village of Albany Board of Trustees improperly held a private meeting in violation of the Open Meetings Act.","legal_question":"Whether the Village of Albany Board of Trustees violated the Open Meetings Act by holding unnoticed meetings involving a majority of a quorum to discuss public business.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Albany Board of Trustees","requesting_party":"Pam Piersol","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"Allegations that board members held private, unnoticed meetings to discuss the appointment of a new Village President.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1/71226, issued June 13, 2023.pdf","sha256":"f049ff65ef761a5281886f0e26a0182732b6966c38da5aaf19d8abd75d87348d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","unnoticed meeting","quorum","public business"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 13, 2023\n\nVia electronic mail\nThe Honorable Pam Piersol\nParks and Marina Chair\nVilla e of Alban\nVia electronic mail\nThe Honorable Richard \"Floyd\" Boston\nBudget Officer/Finance Committee Chairman\nVillage of Albany\n[street address redacted for site publication -- see original PDF]\nfinance@villageofalbany.com\nRE: OMA Request for Review-2022 PAC 71226\nDear Ms. Piersol and Mr. Boston:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons that follow, the Public Access\nBureau is unable to conclude that the Village of Albany (Village) Board of Trustees (Board)\nimproperly held a private meeting on March 25, 2022, or in the lead up to the April 4, 2022,\nBoard meeting.\nIn her Request for Review, received April 13, 2022, Village Trustee Pam Piersol\nalleged, in pertinent part,1 that: (1) at least a majority of a quorum of the Board held one or more\nunnoticed meetings on or around March 25, 2022, as three Board members were observed\ngathering and one observer in one instance stated that they had their laptops open; (2) a quorum\n1 Ms. Piersol also alleged that the Village improperly kept on its terminally ill former Treasurer so\nshe could retain her life insurance benefits. The Public Access Counselor's authority to resolve disputes, however, is\nlimited to alleged violations of OMA and the Freedom oflnformation Act (5 ILCS 140/1 et seq. (West 2020)). 15\nILCS 205/7(c)(3) (West 2020). Therefore, that allegation is not subject to review by this office, nor are Ms.\nPiersol's various claims about other kinds of alleged misconduct by Trustee Richard \"Floyd\" Boston.\n\n500 South Second Street, Springfield, Tllinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Tllinois, 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, l11inois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 2\n\nof the Board held an improper meeting, potentially via e-mail, to select a new Village President\nprior to the Board's April 4, 2022, meeting. Ms. Piersol attached statements from past or present\nVillage employees and two former Village Presidents raising a variety of concerns about the\noperations of the Village and Mr. Boston, few of which concern OMA. Several of the statements\nindicated that they witnessed gatherings of at least a majority of a quorum of the Board, but they\ndid not indicate when these incidents occurred other than an employee's statement that she\nwitnessed three trustees gathered in the boardroom on March 25, 2022. Ms. Piersol also attached\na video recording of a portion of the Board's April 4, 2022, meeting, noting that Trustee Boston\nindicated that four trustees were already on the same page about the Village President selection.2\nOn April 18, 2022, this office forwarded a copy of Ms. Piersol's Request for\nReview to the Board and asked it to provide, for this office's confidential review, copies of any\ncommunications (e-mails, text messages, social media messages, or documents) between Board\nmembers prior to the April 4, 2022, meeting concerning the selection of a new Village President,\nincluding from Board members' personal devices and accounts. This office also asked the Board\nto respond in writing to the two OMA allegations specified above, addressing whether three or\nmore Board members held an unnoticed meeting on or around March 25, 2022, and/or in\nadvance of the Board's April 4, 2022, meeting. The Board responded on April 26, 2022, by\nproviding a set of statements from Village Clerk Angela Allen and five trustees; one of Mr.\nBoston's two statements was submitted under a claim of confidentiality.3 On May 3, 2022, Ms.\nPiersol submitted a reply.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" (Emphasis added.) 5 ILCS 120/1 (West 2020). \"[T]he [Open\nMeetings] Act is designed to prohibit secret deliberation and action on business which properly\nshould be discussed in a public forum due to its potential impact on the public.\" People ex rel.\nDifanis v. Barr, 83 I11. 2d 191, 202 (1980); see also Gosnell v. Hogan, 179 I11. App. 3d 161, 171\n(5th Dist. 1989) (\"The Open Meetings Act provides that public agencies exist to aid in the\nconduct of the people's business, and that the intent of the Act is to assure that agency actions be\ntaken openly and that their deliberations be conducted openly.\").\n\nBureau).\n\n2 Village of Albany Board, Meeting, April 4, 2022, Video File (on file with the Public Access\n\n5 ILCS 120/3.S(c) (West 2020) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n3\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 3\n\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2020)) provides that \"[a]ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" Further, section 2(a) of OMA (5 ILCS 120/2(a) (West 2021\nSupp.)) provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted\nin subsection (c) and closed in accordance with Section 2a.\" Therefore, the requirements of\nOMA to apply to any gathering of members of a public body that constitutes a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2020)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nUnder this statutory definition, a \"meeting\" may include communications through\ne-mail or other electronic means. The Board is comprised of seven members.4 Accordingly,\nfour Board members constitute a quorum, and a majority of the quorum is three members.\nTherefore, any gatherings, either in-person or through audio or video conferencing technology,\nand any contemporaneous, interactive e-mail or other electronic communications involving at\nleast three members of the Board which concern \"public business\" would ordinarily constitute a\nmeeting of the Board which would be subject to the procedural safeguards and requirements of\nOMA. The statute \"is not intended to prohibit bona fide social gatherings of public officials[.]\"\nBarr, 83 Ill. 2d at 202.\nAs an initial matter, this office determined that no further action was warranted as\nto Ms. Piersol's claim that she and others had witnessed three or four of the trustees gathered\ntogether on unspecified dates. Similarly, this office determined that no further action was\nwarranted as to her complaint that:\n[T]he other trustees, and the two prior mayors that have since\nresigned, have constantly brought things up at past meetings to\nvote on that I have never heard of. They have cross conversations,\nand there have been documents handed out during our town\nmeetings, that are given ONLY to our towns attorney, and myself.\n1n an e-mail on August 8, 2022, Ms. Piersol described a three-to-three vote among the Trustees,\nwith the Village President breaking the tie. For reasons unclear to this office, the materials provided to this office\nappear to discuss five Trustees (Boston, Manon, Tegeler, Piersol, Hutton) and the Village President.\n4\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 4\n\nThis is indicative to serial meetings taking place somewhere along\nthe line. (Emphasis in original.)[5l\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) requires a Request for\nReview to be filed \"not later than 60 days after the alleged violation[,]\" unless \"facts concerning\nthe violation are not discovered within the 60-day period, but are discovered at a later date, not\nexceeding 2 years after the alleged violation, by a person utilizing reasonable diligence,\" in\nwhich case \"the request for review may be made within 60 days of the discovery of the alleged\nviolation.\" Moreover, to warrant further action, a Request for Review must \"include a summary\nof the facts supporting the allegation.\" 5 ILCS 120/3.5(a) (West 2020). Because Ms. Piersol did\nnot provide dates or approximate dates of these alleged improper meetings, this office received\ninsufficient facts to warrant further action on those claims. Nonetheless, this office will address\nthe notion of \"serial meetings\" towards the end of this determination letter.\nIn its response to this office, the Board provided six non-confidential statements,\nfrom Trustees Boston, Hutton, Manon, Piersol, and Tegeler, as well as Village Clerk Allen.\nTrustee Piersol stated that she had no responsive communications. Trustee Hutton stated that she\nhad no responsive communications either, nor had she engaged in any meetings with other\ntrustees outside of official Board meetings. Trustee Tegeler stated that she had conducted no\nVillage business on her personal e-mail or personal cell phone. Trustee Tegeler also stated that\nshe had \"attended many house gatherings with other trustees[,]\" but that these gatherings were\nfor birthday parties or other social events; she stated that these trustees were friends before they\nwon their elections and do not discuss public business during these gatherings. 6 Addressing the\nalleged March 25, 2022, meeting, Trustee Tegeler stated that she was in the Village boardroom\nworking with Clerk Allen on updating cemetery maps, while Trustees Boston and Manon were\non the other side of the room printing e-mails in order to respond to a FOIA request submitted by\nMs. Piersol. Clerk Allen similarly stated that she had no communications about choosing the\nnew mayor, and gave the same explanation as Trustee Tegeler about their activities in the\nboardroom on March 25, 2022. Trustee Manon stated, as typed:\nI have no personal emails, texts or phone calls prior to\nApril 4 currrently on my cell phone. I use my ce11 phone\nexclusively for emails, and clear old emails weekly to clear storage\nspace. I have already provided a11 emails from my village laptop.\n\nE-mail from Pam Piersol, Parks and Marina Chair - Village of Albany, To whom it may concern\n\n5\n\n(March 31, 2022).\n\nLetter from Joyce Tegeler To Whom It May Concern (April 20, 2022).\n\n6\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 5\n\nThe only time I can recall three village trustees in the\nvillage office was when I was there with trustee Boston, we were\nboth printing off emails from our village laptops on the village\nprinter, and Trustee Tegler and our village clerk Allen were\nworking on Cemetary map on the other side of the room. There\nwas no village business discussed. To my knowledge, there was no\nprior meetings between trustees to elect a new mayor. We were\nPrinting Emails to Provide for trustee Piersols FOIA request. [7l\nLastly, in his non-confidential response, Mr. Boston addressed the alleged secret meeting to\ndiscuss appointing a new Village President as follows:\nThere were communications between three other trustees and me\nregarding the appointment of an acting president for our town. I\nhad spoken with trustees Manon, Tegeler and Hutton just before\nsending an email to our attorney, Mr. William Shirk, which was\ncarbon copied to these same three individuals. The conversations\nbetween these three trustees and I occurred one-on-one, and either\nin person of over the phone. [SJ\nMr. Boston explained that he did not include Ms. Piersol in the conversations because he was\nconcerned Ms. Piersol would generate a controversy that would cause the candidate to change\nhis mind. Mr. Boston asserted that he had no responsive documents concerning appointment of a\nnew Village President on his personal phone or personal e-mail account. As to the alleged\nMarch 25, 2022, secret meeting, Mr. Boston's explanation aligned with the explanations by Clerk\nAllen and Trustees Tegeler and Manon.\nIn reply, Ms. Piersol contended that the responses contained conflicting stories:\nFirst you have Trustee Teresa Hutton claiming that she has zero\ncommunication with any board members outside of meetings. You\nhave Trustee Manon stating he has no records of texts, calls, or\nemails pertaining to the appointment of the new mayor. Nor to his\nknowledge, was there ever a meeting for such a purpose. Trustee\nTegeler states she does not conduct village business on her\nLetter from Todd Manon, Village Trustee, Walks, Roads, Cemetary, To whom it may concern\n\n7\n\n(April 26, 2022).\n\nLetter from Richard 'Floyd' Boston, Village of Albany Trustee - Budget/Finance Officer, to Josh\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 25, 2022), at [l].\n8\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 6\n\npersonal phone or email. But yet, Trustee Boston openly admits,\n\"There were communications between three other trustees and me\nregarding the appointment of an acting president for our town. I\nhad spoken with trustees Manon, Tegeler, and Hutton just before\nsending an email to our attorney, Mr. William Shirk, which was\ncarbon copied to these same three individuals. The\nconversations between these three trustees and I occurred one-on­\none, and either in person or over the phone.\" These contradictions\ndon't add up. (Emphasis in original.)[91\nAs to the alleged secret meeting on March 25, 2022, Ms. Piersol argued that it was unnecessary\nto use the boardroom because \"[t]here are multiple rooms available to use in our village hall. It\ndoesn't make sense to me that they would put themselves in that kind of situation when they\ndidn't need to.\" 10\nThe information provided by the Board indicates that it did not hold a secret\nmeeting on March 25, 2022, when three trustees were present in the boardroom. All four\nindividuals in the boardroom at the time explained that two separate conversations were\noccurring, one between the Village Clerk and a trustee and the other between two trustees.\nAlthough Ms. Piersol argued that the trustees put themselves in a bad situation by carrying out\nactivities in the boardroom, this office received no information suggesting that the three trustees\ndeliberated about public business together at that time. The trustees' separate conversations did\nnot violate OMA.\nAs to whether four trustees held an illegal secret meeting concerning who to\nselect for Village President in advance of the April 4, 2022, Board meeting, this office analyzed\nwhether the evidence reflects that either three or more members of the Board physically gathered\nto discuss the appointment, or three or more members engaged in \"contemporaneous, interactive\ncommunication\" about that matter, as required to constitute a meeting subject to the requirements\nof OMA. This office did not receive information suggesting that a majority of a quorum of the\ntrustees secretly met in person about selecting the new Village President. Thus, the remaining\nquestion was whether one-on-one in-person meetings or telephone or electronic communications\nabout the issue among three or four of the trustees were both contemporaneous and interactive in\ncharacter.\nE-mail from Pam Piersol, Parks and Marina Chair, Village of Albany, to [Joshua] Jones (May 3,\n\n9\n\n2022).\n\n10\n\n2022).\n\nE-mail from Pam Piersol, Parks and Marina Chair, Village of Albany, to [Joshua] Jones (May 3,\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 7\n\nOMA does not define \"interactive\" or \"contemporaneous.\" In interpreting statutes\nsuch as OMA, undefined statutory terms must be afforded their \"plain, ordinary, and popular\nmeanings[,]\" which may be gleaned from dictionaries. See, for example, Valley Forge Insurance\nCo. v. Swiderski Electronics, 223 Ill. 2d 352, 366 (2006). \"Interactive\" is defined, in relevant\npart, as \"mutually or reciprocally active.\" 11 \"Contemporaneous\" is defined as \"existing,\noccurring, or originating during the same time.\" 12 In accordance with these definitions, a\n\"contemporaneous interactive communication\" occurs in the same general time frame, but is not\nnecessarily simultaneous. Ill. Att'y Gen. PAC Req. Rev. Ltr. 14722, issued August 12, 2011, at 4\n(citing John H. Brechin, E-mail and the Open Meetings Act, Illinois Bar Journal, 94 ILBJ 666,\n667 (2006)). In prior matters, this office determined that we could not conclude that\ncommunications exchanged over a period of hours or longer were \"contemporaneous\" as a matter\nof law. See,for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued September 9, 2013, at\n3 (e-mail responses sent hours apart did not constitute contemporaneous, interactive discussions\nof public business); Ill. Att'y Gen. PAC Req. Rev. Ltr. 40976, issued August 24, 2016, at 3\n(unable to conclude that \"text messages that may have stretched over a period over two hours\"\nconstituted contemporaneous communications).\nThe records this office has reviewed confirmed that Mr. Boston e-mailed Mr.\nShirk on March 18, 2022, concerning the appointment of a new Village President, and copied the\nVillage e-mail accounts of Trustees Manon, Hutton, and Tegeler. Mr. Boston indicated in the e­\nmail that he had spoken with those trustees, without indicating when or how. The records further\nreflect that Mr. Shirk responded to Mr. Boston in the morning of March 20, 2022, and Mr.\nBoston then forwarded the message to Trustees Manon, Hutton, and Tegeler that evening.\nAlthough Ms. Piersol alleged that the trustees' statements are inconsistent because three trustees\ndenied having responsive communications while Mr. Boston confirmed that he copied those\nthree trustees on an e-mail to Mr. Shirk, Trustees Manon and Tegeler expressly addressed only\npersonal device/account communications in their statements. When Ms. Piersol separately\nsubmitted a FOIA request to the Village on March 21, 2022, seeking copies of e-mails on Village\ncomputers,13 Mr. Boston explained to this office that the Village withheld his communications\nwith Mr. Shirk discussed above from Ms. Piersol pursuant to section 7(l )(m) of FOIA.14 Under\nthese circumstances, the facts this office has received suggest that Mr. Boston had individual\nMerriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/interactive\n(last visited April 28, 2023).\n11\n\nMerriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/\ncontemporaneous (last visited April 28, 2023).\n12\n\n13\n\nThe Village's response to this FOIA request is under review in a separate Request for Review,\n\n14\n\n5 ILCS 140/7(l )(m) (West 2021 Supp.).\n\n2022 PAC 71230.\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 8\n\nconversations with Trustees Manon, Hutton, and Tegeler before e-mailing Mr. Shirk on March\n18, 2022, and copying the trustees' Village e-mail accounts. Mr. Boston then notified those\ntrustees of Mr. Shirk's response two days later; this office has not received information\nsuggesting that the three trustees and Mr. Boston corresponded as a group in the interim or in the\ntime before the April 4, 2022, Board meeting. Absent response e-mails from the other trustees\nsent in close proximity in time, the Board did not engage in electronic communications that\ncould constitute a meeting by being both contemporaneous and interactive.\nAs to whether Mr. Boston's separate conversations with Trustees Manon, Hutton,\nand Tegeler before e-mailing Mr. Shirk on March 18, 2022, constituted an improper \"serial\nmeeting\" as Ms. Piersol alleged, the Public Access Bureau has reviewed similar allegations of\nserial meetings or \"walking quorums\" in other circumstances. In 2011 PAC 14722, the Public\nAccess Bureau determined that an in-person gathering, at which single members of a public body\nalternated out of a discussion so that only two members were in the room at any given time, met\nthe definition of a contemporaneous interactive communication of a majority of a quorum of the\npublic body. Ill. Att'y Gen. PAC Reg. Rev. Ltr. 14722, at 5. In that matter, although only two\nmembers spoke to each other at any given time, it was undisputed that three members of the\ncommittee were physically present at the gathering, and the series of two-person discussions\noccurred in the same general timeframe. In contrast, this office was not able conclude that a\nseries of separate communications between two members of a public body held over a longer\nperiod of time was a \"meeting,\" even though the communications involved the same matter of\npublic business. See, for instance, Ill. Att'y Gen. PAC Reg. Rev. Ltr. 54002, issued October 22,\n2018, at 5 (series of conversations between board chairperson and individual board members on\nsame subject matter over course of time was not a \"meeting\" of board).\nIn this instance, this office did not receive information suggesting that Mr.\nBoston's conversations with Trustees Manon, Hutton, and Tegeler occurred close enough in time\nto qualify as both contemporaneous and interactive. In the context of this office's prior\ndeterminations concerning the definition of \"meeting\" in section 1.02 of OMA, this office is\nunable to conclude that the Board held a secret meeting to discuss the appointment of a new\nVillage President in advance of its April 4, 2022, meeting.\nNevertheless, this office notes that communications concerning public business\nthat involve multiple members of a public body skirt the purpose of OMA, 15 even if spaced out\nover time, and have the potential to violate the Act. This office cautions the members of the\nBoard to be mindful of the requirements of OMA, as well as the public policy favoring the open\ndiscussion of matters affecting the public interest, before engaging in such communications.\nSection 1 of OMA (5 ILCS 120/1 (West 2020)) provides that \"is the intent of this Act to\nensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\"\n15\n\n\fThe Honorable Pam Piersol\nThe Honorable Richard \"Floyd\" Boston\nJune 13, 2023\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\njoshua.jones@ilag.gov, or the Chicago address listed on the first page of this letter. This file is\nclosed.\nVery truly yours,\n\nDeputy Bureau Chief\nPublic Access Bureau\n71226 o 2a meeting proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Private board meetings to discuss appointing a village president","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71226/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 13, 2023\n\nVia electronic mail\nThe Honorable Pam Piersol\nParks and Marina Chair\nVilla e of Alban\nVia electronic mail\nThe Honorable Richard \"Floyd\" Boston\nBudget Officer/Finance Committee Chairman\nVillage of Albany\n[street address redacted for site publication -- see original PDF]\nfinance@villageofalbany.com\nRE: OMA Request for Review-2022 PAC 71226\nDear Ms. Piersol and Mr. Boston:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons that follow, the Public Access\nBureau is unable to conclude that the Village of Albany (Village) Board of Trustees (Board)\nimproperly held a private meeting on March 25, 2022, or in the lead up to the April 4, 2022,\nBoard meeting.\nIn her Request for Review, received April 13, 2022, Village Trustee Pam Piersol\nalleged, in pertinent part,1 that: (1) at least a majority of a quorum of the Board held one or more\nunnoticed meetings on or around March 25, 2022, as three Board members were observed\ngathering and one observer in one instance stated that they had their laptops open; (2) a quorum\n1 Ms. Piersol also alleged that the Village improperly kept on its terminally ill former Treasurer so\nshe could retain her life insurance benefits. The Public Access Counselor's authority to resolve disputes, however, is\nlimited to alleged violations of OMA and the Freedom oflnformation Act (5 ILCS 140/1 et seq. (West 2020)). 15\nILCS 205/7(c)(3) (West 2020). Therefore, that allegation is not subject to review by this office, nor are Ms.\nPiersol's various claims about other kinds of alleged misconduct by Trustee Richard \"Floyd\" Boston.\n\nof the Board held an improper meeting, potentially via e-mail, to select a new Village President\nprior to the Board's April 4, 2022, meeting. Ms. Piersol attached statements from past or present\nVillage employees and two former Village Presidents raising a variety of concerns about the\noperations of the Village and Mr. Boston, few of which concern OMA. Several of the statements\nindicated that they witnessed gatherings of at least a majority of a quorum of the Board, but they\ndid not indicate when these incidents occurred other than an employee's statement that she\nwitnessed three trustees gathered in the boardroom on March 25, 2022. Ms. Piersol also attached\na video recording of a portion of the Board's April 4, 2022, meeting, noting that Trustee Boston\nindicated that four trustees were already on the same page about the Village President selection.2\nOn April 18, 2022, this office forwarded a copy of Ms. Piersol's Request for\nReview to the Board and asked it to provide, for this office's confidential review, copies of any\ncommunications (e-mails, text messages, social media messages, or documents) between Board\nmembers prior to the April 4, 2022, meeting concerning the selection of a new Village President,\nincluding from Board members' personal devices and accounts. This office also asked the Board\nto respond in writing to the two OMA allegations specified above, addressing whether three or\nmore Board members held an unnoticed meeting on or around March 25, 2022, and/or in\nadvance of the Board's April 4, 2022, meeting. The Board responded on April 26, 2022, by\nproviding a set of statements from Village Clerk Angela Allen and five trustees; one of Mr.\nBoston's two statements was submitted under a claim of confidentiality.3 On May 3, 2022, Ms.\nPiersol submitted a reply.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" (Emphasis added.) 5 ILCS 120/1 (West 2020). \"[T]he [Open\nMeetings] Act is designed to prohibit secret deliberation and action on business which properly\nshould be discussed in a public forum due to its potential impact on the public.\" People ex rel.\nDifanis v. Barr, 83 I11. 2d 191, 202 (1980); see also Gosnell v. Hogan, 179 I11. App. 3d 161, 171\n(5th Dist. 1989) (\"The Open Meetings Act provides that public agencies exist to aid in the\nconduct of the people's business, and that the intent of the Act is to assure that agency actions be\ntaken openly and that their deliberations be conducted openly.\").\n\nBureau).\n\n2 Village of Albany Board, Meeting, April 4, 2022, Video File (on file with the Public Access\n\n5 ILCS 120/3.S(c) (West 2020) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n\nSection 2.01 of OMA (5 ILCS 120/2.01 (West 2020)) provides that \"[a]ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" Further, section 2(a) of OMA (5 ILCS 120/2(a) (West 2021\nSupp.)) provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted\nin subsection (c) and closed in accordance with Section 2a.\" Therefore, the requirements of\nOMA to apply to any gathering of members of a public body that constitutes a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2020)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\nUnder this statutory definition, a \"meeting\" may include communications through\ne-mail or other electronic means. The Board is comprised of seven members.4 Accordingly,\nfour Board members constitute a quorum, and a majority of the quorum is three members.\nTherefore, any gatherings, either in-person or through audio or video conferencing technology,\nand any contemporaneous, interactive e-mail or other electronic communications involving at\nleast three members of the Board which concern \"public business\" would ordinarily constitute a\nmeeting of the Board which would be subject to the procedural safeguards and requirements of\nOMA. The statute \"is not intended to prohibit bona fide social gatherings of public officials[.]\"\nBarr, 83 Ill. 2d at 202.\nAs an initial matter, this office determined that no further action was warranted as\nto Ms. Piersol's claim that she and others had witnessed three or four of the trustees gathered\ntogether on unspecified dates. Similarly, this office determined that no further action was\nwarranted as to her complaint that:\n[T]he other trustees, and the two prior mayors that have since\nresigned, have constantly brought things up at past meetings to\nvote on that I have never heard of. They have cross conversations,\nand there have been documents handed out during our town\nmeetings, that are given ONLY to our towns attorney, and myself.\n1n an e-mail on August 8, 2022, Ms. Piersol described a three-to-three vote among the Trustees,\nwith the Village President breaking the tie. For reasons unclear to this office, the materials provided to this office\nappear to discuss five Trustees (Boston, Manon, Tegeler, Piersol, Hutton) and the Village President.\n\nThis is indicative to serial meetings taking place somewhere along\nthe line. (Emphasis in original.)[5l\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) requires a Request for\nReview to be filed \"not later than 60 days after the alleged violation[,]\" unless \"facts concerning\nthe violation are not discovered within the 60-day period, but are discovered at a later date, not\nexceeding 2 years after the alleged violation, by a person utilizing reasonable diligence,\" in\nwhich case \"the request for review may be made within 60 days of the discovery of the alleged\nviolation.\" Moreover, to warrant further action, a Request for Review must \"include a summary\nof the facts supporting the allegation.\" 5 ILCS 120/3.5(a) (West 2020). Because Ms. Piersol did\nnot provide dates or approximate dates of these alleged improper meetings, this office received\ninsufficient facts to warrant further action on those claims. Nonetheless, this office will address\nthe notion of \"serial meetings\" towards the end of this determination letter.\nIn its response to this office, the Board provided six non-confidential statements,\nfrom Trustees Boston, Hutton, Manon, Piersol, and Tegeler, as well as Village Clerk Allen.\nTrustee Piersol stated that she had no responsive communications. Trustee Hutton stated that she\nhad no responsive communications either, nor had she engaged in any meetings with other\ntrustees outside of official Board meetings. Trustee Tegeler stated that she had conducted no\nVillage business on her personal e-mail or personal cell phone. Trustee Tegeler also stated that\nshe had \"attended many house gatherings with other trustees[,]\" but that these gatherings were\nfor birthday parties or other social events; she stated that these trustees were friends before they\nwon their elections and do not discuss public business during these gatherings. 6 Addressing the\nalleged March 25, 2022, meeting, Trustee Tegeler stated that she was in the Village boardroom\nworking with Clerk Allen on updating cemetery maps, while Trustees Boston and Manon were\non the other side of the room printing e-mails in order to respond to a FOIA request submitted by\nMs. Piersol. Clerk Allen similarly stated that she had no communications about choosing the\nnew mayor, and gave the same explanation as Trustee Tegeler about their activities in the\nboardroom on March 25, 2022. Trustee Manon stated, as typed:\nI have no personal emails, texts or phone calls prior to\nApril 4 currrently on my cell phone. I use my ce11 phone\nexclusively for emails, and clear old emails weekly to clear storage\nspace. I have already provided a11 emails from my village laptop.\n\nE-mail from Pam Piersol, Parks and Marina Chair - Village of Albany, To whom it may concern\n\nThe only time I can recall three village trustees in the\nvillage office was when I was there with trustee Boston, we were\nboth printing off emails from our village laptops on the village\nprinter, and Trustee Tegler and our village clerk Allen were\nworking on Cemetary map on the other side of the room. There\nwas no village business discussed. To my knowledge, there was no\nprior meetings between trustees to elect a new mayor. We were\nPrinting Emails to Provide for trustee Piersols FOIA request. [7l\nLastly, in his non-confidential response, Mr. Boston addressed the alleged secret meeting to\ndiscuss appointing a new Village President as follows:\nThere were communications between three other trustees and me\nregarding the appointment of an acting president for our town. I\nhad spoken with trustees Manon, Tegeler and Hutton just before\nsending an email to our attorney, Mr. William Shirk, which was\ncarbon copied to these same three individuals. The conversations\nbetween these three trustees and I occurred one-on-one, and either\nin person of over the phone. [SJ\nMr. Boston explained that he did not include Ms. Piersol in the conversations because he was\nconcerned Ms. Piersol would generate a controversy that would cause the candidate to change\nhis mind. Mr. Boston asserted that he had no responsive documents concerning appointment of a\nnew Village President on his personal phone or personal e-mail account. As to the alleged\nMarch 25, 2022, secret meeting, Mr. Boston's explanation aligned with the explanations by Clerk\nAllen and Trustees Tegeler and Manon.\nIn reply, Ms. Piersol contended that the responses contained conflicting stories:\nFirst you have Trustee Teresa Hutton claiming that she has zero\ncommunication with any board members outside of meetings. You\nhave Trustee Manon stating he has no records of texts, calls, or\nemails pertaining to the appointment of the new mayor. Nor to his\nknowledge, was there ever a meeting for such a purpose. Trustee\nTegeler states she does not conduct village business on her\nLetter from Todd Manon, Village Trustee, Walks, Roads, Cemetary, To whom it may concern\n\n7\n\n(April 26, 2022).\n\nLetter from Richard 'Floyd' Boston, Village of Albany Trustee - Budget/Finance Officer, to Josh\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 25, 2022), at [l].\n\npersonal phone or email. But yet, Trustee Boston openly admits,\n\"There were communications between three other trustees and me\nregarding the appointment of an acting president for our town. I\nhad spoken with trustees Manon, Tegeler, and Hutton just before\nsending an email to our attorney, Mr. William Shirk, which was\ncarbon copied to these same three individuals. The\nconversations between these three trustees and I occurred one-on­\none, and either in person or over the phone.\" These contradictions\ndon't add up. (Emphasis in original.)[91\nAs to the alleged secret meeting on March 25, 2022, Ms. Piersol argued that it was unnecessary\nto use the boardroom because \"[t]here are multiple rooms available to use in our village hall. It\ndoesn't make sense to me that they would put themselves in that kind of situation when they\ndidn't need to.\" 10\nThe information provided by the Board indicates that it did not hold a secret\nmeeting on March 25, 2022, when three trustees were present in the boardroom. All four\nindividuals in the boardroom at the time explained that two separate conversations were\noccurring, one between the Village Clerk and a trustee and the other between two trustees.\nAlthough Ms. Piersol argued that the trustees put themselves in a bad situation by carrying out\nactivities in the boardroom, this office received no information suggesting that the three trustees\ndeliberated about public business together at that time. The trustees' separate conversations did\nnot violate OMA.\nAs to whether four trustees held an illegal secret meeting concerning who to\nselect for Village President in advance of the April 4, 2022, Board meeting, this office analyzed\nwhether the evidence reflects that either three or more members of the Board physically gathered\nto discuss the appointment, or three or more members engaged in \"contemporaneous, interactive\ncommunication\" about that matter, as required to constitute a meeting subject to the requirements\nof OMA. This office did not receive information suggesting that a majority of a quorum of the\ntrustees secretly met in person about selecting the new Village President. Thus, the remaining\nquestion was whether one-on-one in-person meetings or telephone or electronic communications\nabout the issue among three or four of the trustees were both contemporaneous and interactive in\ncharacter.\nE-mail from Pam Piersol, Parks and Marina Chair, Village of Albany, to [Joshua] Jones (May 3,\n\n9\n\n2022).\n\n10\n\n2022).\n\nE-mail from Pam Piersol, Parks and Marina Chair, Village of Albany, to [Joshua] Jones (May 3,\n\nOMA does not define \"interactive\" or \"contemporaneous.\" In interpreting statutes\nsuch as OMA, undefined statutory terms must be afforded their \"plain, ordinary, and popular\nmeanings[,]\" which may be gleaned from dictionaries. See, for example, Valley Forge Insurance\nCo. v. Swiderski Electronics, 223 Ill. 2d 352, 366 (2006). \"Interactive\" is defined, in relevant\npart, as \"mutually or reciprocally active.\" 11 \"Contemporaneous\" is defined as \"existing,\noccurring, or originating during the same time.\" 12 In accordance with these definitions, a\n\"contemporaneous interactive communication\" occurs in the same general time frame, but is not\nnecessarily simultaneous. Ill. Att'y Gen. PAC Req. Rev. Ltr. 14722, issued August 12, 2011, at 4\n(citing John H. Brechin, E-mail and the Open Meetings Act, Illinois Bar Journal, 94 ILBJ 666,\n667 (2006)). In prior matters, this office determined that we could not conclude that\ncommunications exchanged over a period of hours or longer were \"contemporaneous\" as a matter\nof law. See,for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 18676, issued September 9, 2013, at\n3 (e-mail responses sent hours apart did not constitute contemporaneous, interactive discussions\nof public business); Ill. Att'y Gen. PAC Req. Rev. Ltr. 40976, issued August 24, 2016, at 3\n(unable to conclude that \"text messages that may have stretched over a period over two hours\"\nconstituted contemporaneous communications).\nThe records this office has reviewed confirmed that Mr. Boston e-mailed Mr.\nShirk on March 18, 2022, concerning the appointment of a new Village President, and copied the\nVillage e-mail accounts of Trustees Manon, Hutton, and Tegeler. Mr. Boston indicated in the e­\nmail that he had spoken with those trustees, without indicating when or how. The records further\nreflect that Mr. Shirk responded to Mr. Boston in the morning of March 20, 2022, and Mr.\nBoston then forwarded the message to Trustees Manon, Hutton, and Tegeler that evening.\nAlthough Ms. Piersol alleged that the trustees' statements are inconsistent because three trustees\ndenied having responsive communications while Mr. Boston confirmed that he copied those\nthree trustees on an e-mail to Mr. Shirk, Trustees Manon and Tegeler expressly addressed only\npersonal device/account communications in their statements. When Ms. Piersol separately\nsubmitted a FOIA request to the Village on March 21, 2022, seeking copies of e-mails on Village\ncomputers,13 Mr. Boston explained to this office that the Village withheld his communications\nwith Mr. Shirk discussed above from Ms. Piersol pursuant to section 7(l)(m) of FOIA.14 Under\nthese circumstances, the facts this office has received suggest that Mr. Boston had individual\nMerriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/interactive\n(last visited April 28, 2023).\n11\n\nMerriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/\ncontemporaneous (last visited April 28, 2023).\n12\n\n13\n\nThe Village's response to this FOIA request is under review in a separate Request for Review,\n\nconversations with Trustees Manon, Hutton, and Tegeler before e-mailing Mr. Shirk on March\n18, 2022, and copying the trustees' Village e-mail accounts. Mr. Boston then notified those\ntrustees of Mr. Shirk's response two days later; this office has not received information\nsuggesting that the three trustees and Mr. Boston corresponded as a group in the interim or in the\ntime before the April 4, 2022, Board meeting. Absent response e-mails from the other trustees\nsent in close proximity in time, the Board did not engage in electronic communications that\ncould constitute a meeting by being both contemporaneous and interactive.\nAs to whether Mr. Boston's separate conversations with Trustees Manon, Hutton,\nand Tegeler before e-mailing Mr. Shirk on March 18, 2022, constituted an improper \"serial\nmeeting\" as Ms. Piersol alleged, the Public Access Bureau has reviewed similar allegations of\nserial meetings or \"walking quorums\" in other circumstances. In 2011 PAC 14722, the Public\nAccess Bureau determined that an in-person gathering, at which single members of a public body\nalternated out of a discussion so that only two members were in the room at any given time, met\nthe definition of a contemporaneous interactive communication of a majority of a quorum of the\npublic body. Ill. Att'y Gen. PAC Reg. Rev. Ltr. 14722, at 5. In that matter, although only two\nmembers spoke to each other at any given time, it was undisputed that three members of the\ncommittee were physically present at the gathering, and the series of two-person discussions\noccurred in the same general timeframe. In contrast, this office was not able conclude that a\nseries of separate communications between two members of a public body held over a longer\nperiod of time was a \"meeting,\" even though the communications involved the same matter of\npublic business. See, for instance, Ill. Att'y Gen. PAC Reg. Rev. Ltr. 54002, issued October 22,\n2018, at 5 (series of conversations between board chairperson and individual board members on\nsame subject matter over course of time was not a \"meeting\" of board).\nIn this instance, this office did not receive information suggesting that Mr.\nBoston's conversations with Trustees Manon, Hutton, and Tegeler occurred close enough in time\nto qualify as both contemporaneous and interactive. In the context of this office's prior\ndeterminations concerning the definition of \"meeting\" in section 1.02 of OMA, this office is\nunable to conclude that the Board held a secret meeting to discuss the appointment of a new\nVillage President in advance of its April 4, 2022, meeting.\nNevertheless, this office notes that communications concerning public business\nthat involve multiple members of a public body skirt the purpose of OMA, 15 even if spaced out\nover time, and have the potential to violate the Act. This office cautions the members of the\nBoard to be mindful of the requirements of OMA, as well as the public policy favoring the open\ndiscussion of matters affecting the public interest, before engaging in such communications.\nSection 1 of OMA (5 ILCS 120/1 (West 2020)) provides that \"is the intent of this Act to\nensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\"\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\njoshua.jones@ilag.gov, or the Chicago address listed on the first page of this letter. This file is\nclosed.\nVery truly yours,\n\nDeputy Bureau Chief\nPublic Access Bureau\n71226 o 2a meeting proper mun"}
{"id":1381,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-04-12","case_number":null,"request_numbers":["71408","71411","75756","79504","79539"],"title":"Urbana City Council and Cunningham Township Board violated OMA 2.06(b) by failing to timely approve minutes","filename":"71408 71411 75756 79504 79539, April 12, 2024.pdf","rel_path":null,"word_count":3070,"summary":"The PAC consolidated five Requests for Review alleging that the City of Urbana and Cunningham Township failed to timely approve and post meeting minutes as required by the Open Meetings Act. The PAC determined that because the minutes were eventually posted, no further remedial action was necessary.","plain_summary":"A citizen complained that the City of Urbana City Council and the Cunningham Township Board failed to timely approve meeting minutes as required by the Open Meetings Act. The Illinois Attorney General's Public Access Bureau reviewed the complaints and found that both public bodies had violated the Act by not approving minutes within the required timeframe. However, because the minutes had since been approved and posted online, the Bureau determined that no further remedial action was necessary.","holding":"The Public Access Bureau found that the City Council and Township Board violated section 2.06(b) of the Open Meetings Act by failing to timely approve minutes, but took no further action because the minutes had already been approved and posted.","legal_question":"Did the City of Urbana and Cunningham Township violate section 2.06(b) of the Open Meetings Act by failing to timely approve and post meeting minutes?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Urbana and Cunningham Township","requesting_party":null,"pac_outcome":"Closed with no further action","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The timely approval and website posting of meeting minutes for the City of Urbana and Cunningham Township.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_b/71408 71411 75756 79504 79539, April 12, 2024.pdf","sha256":"4b03dbb7cb7dfe3c56f8db0d68b7b786afa8748265d8784e72fc9f830865fe46","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","Open Meetings Act","posting requirements","public records"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"April 12, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. David B. Wesner\n\nAttorney for City of Urbana\nEvans, Froehlich, Beth & Chamley\n44 Main Street, Suite 310\nChampaign, Illinois 61820\ndwesner@efbclaw. com\n\nVia electronic mail\nMr. Frederic M. Grosser\nCunningham Township Attorney\n107 North Elm Street, Suite 210\n\nChampaign, Illinois 61820\nfrederic.grosser@gmail.com\nRE:\n\nOMA Requests for Review – 2021 PAC C-0342/71408 ; C-0343/71411 ;\n2023 PAC 75756; 79504; 79539\n\nDear ,\n\nMr. Wesner, and Mr. Grosser:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5( e) ( West 2022 )). This office has consolidated five Requests for Review\n\nin this determination because they concern the same parties and similar allegations.\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 2\nBACKGROUND\nOn September 9, 2021, the Public Access Bureau received a Request for Review\n2021 PAC C-0343/71411) from\nalleging that the City of Urbana (City)\nCity Council ( Council) violated section 2.06( b) of OMA ( 5 ILCS 120/ 2.06( b) ( West 2020)) by\nfailing to timely approve and post minutes of a series of meetings between May 17, 2021, and\n\nAugust 16, 2021. 1 On September 23, 2021, this office forwarded the Request for Review to the\nCouncil and asked it to provide a written response to the allegations in the Request for Review.\nOn September 28, 2021, this office received the Council's response and forwarded a copy to\nOn October 14, 2021, he replied.\nOn September 10, 2021, the Public Access Bureau received a second Request for\nReview (2021 PAC C-0342/71408) from\nalleging that the Cunningham Township\nTownship) Board (Board) violated section 2.06(b) of OMA by failing to timely approve and\npost minutes of a series of meetings between April 5, 2021, and July 12, 2021. 2\nalso\nstated that, although the Board appears to have its own website hosted via Township Officials of\n\nIllinois,3 Board meeting documents are regularly posted on the City's website .4 Following a\nSeptember 21, 2021, telephone conversation between an Assistant Attorney General in the Public\nAccess Bureau and a Township representative, the Township Supervisor sent an e-mail to this\noffice stating that Phyllis Clark, the elected Clerk for both the City and the Township , would\nrespond to the complaint. However, this office did not receive any further communication from\nMs. Clark or the Township. On October 12, 2021,\nclarified the allegations in this\n\nRequest for Review and added two other meetings held on August 9, 2021, to the list of meetings\nhe believed to be in violation of section 2.06(b) of OMA .\nOn March 7, 2023, the Public Access Bureau received a third Request for Review\n2023 PAC 75756) from\nalleging that the Council violated section 2.06( b) of OMA\n\nby failing to timely approve and post minutes of a series of meetings between December 12,\n\nalleged violations in connection with the Council's May 17, 2021, May 24, 2021,\nJune 7, 2021, June 14, 2021, June 21, 2021, June 28, 2021, July 6, 2021, July 12, 2021, August 2, 2021, August 9,\n2021, and August 16, 2021, meetings, which included six Committee of the Whole meetings and two public\nhearings.\nalleged violations in connection with the Board' s April 5, 2021, April 12, 2021, April\n13, 2021, April 19, 2021, May 10, 2021, June 14, 2021, June 21, 2021, June 28, 2021, and July 12, 2021 , meetings\nand public hearings.\n\n3https:// www.toi.org/ township/ champaign - county -cunningham - township .\n4https:// www.urbanaillinois. us/ boards/ cunningham township board .\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 3\n2022, and February 6, 2023. 5 On March 16, 2023, this office forwarded the Request for Review\nto the Council and asked it to provide a written response to those allegations. On March 27,\n2023, this office received the Council's response and forwarded a copy to .\nOn April\n10, 2023, he replied to this office, noting that some additional meetings held in February 2023,\ndid not appear to be approved and/ or posted .\n\nOn December 26 , 2023 , the Public Access Bureau received two Requests for\nReview (2023 PAC 79504 and 79539) from\nalleging that the Council and the Board\nviolated section 2.06(b) of OMA by failing to timely approve and post minutes of a series of\nmeetings between July 31, 2023, and November 27, 2023 .6 On January 5 , 2024 ,this office\nforwarded copies of the Requests for Review to the Council and Board and asked each to provide\n\nthis office with a written response to the allegations in the Request for Review . On January 12,\n2024, and January 16, 2024, this office received response s from the Board and Council,\nrespectively, and forwarded copies of both to .\nOn February 16, 2024,\nreplied to each of those responses .\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan , 179 Ill. App. 3d\n161, 171 ( 1989). Section 2 .06( b) of OMA provide s, in pertinent part:\n\nA public body shall approve the minutes of its open\nmeeting within 30 days after that meeting or at the public\nbody' s second subsequent regular meeting , whichever is later .\nA] public body that has a website that the full-time staff of\n\nthe public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public\nbody's website within 10 days after the approval of the minutes by\nthe public body. ( Emphasis added.)\n\nalleged violations in connection with the Council' s December 12, 2022, December\n19, 2022, January 3, 2023, January 17, 2023, January 23, 2023, and February 6, 2023 , meetings.\nalleged violations in connection with the Council' s July 31, 2023, August 14, 2023,\nAugust 21, 2023, August 28, 2023, September 5, 2023, September 11, 2023, September 18, 2023, September 25,\n2023, October 16, 2023, October 23, 2023, November 6, 2023, November 13, 2023, November 20, 2023, and\nNovember 27, 2023 , meetings, which included Committee of the Whole meetings and one joint meeting with the\nBoard .\nalso alleged violations in connection with the Board's September 11, 2023, and October 16,\n2023, meetings.\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 4\nTimely Approval of Minutes\n\nlisted in\n\nAs an initial matter, the Council's responses stated that some of the meetings\nRequests for Review were Committee of the Whole meetings. The\n\nCouncil asserted that the minutes of the Committee of the Whole meetings identified in 2023\nPAC 75756 were timely approved at the second subsequent meeting of the Committee of the\n\nWhole ,as opposed to the second subsequent Council meeting . However, committees of the\nwhole are not considered separate from a public body ,but rather provide a different meeting\nformat for the public body . See Black's Law Dictionary 341 (11th ed. 2019) (defining\ncommittee of the whole \"as \"[ a] deliberative assembly may resolve itself into a committee of the\nwhole so that it can take advantage of the greater procedural flexibility that a committee enjoys,\n\nusu. presided over by some chair other than the assembly's regular chair.\" Because a public body\nand its committee of the whole are essentially the same entity , the Public Access Bureau has\npreviously determined that a township board must approve minutes of its committee of the whole\nmeeting by the latter of 30 days or at the township board's second subsequent regular meeting––\nregardless of the format in which those meetings were held . See Ill. Att'y Gen. PAC Req. Rev.\n\nLtr. 46954, issued May 23, 2017 , at 3 .\nBeyond the Committee of the Whole meetings, both the Council and Board\nacknowledged in their responses to this office that the minutes of the meetings at issue were not\napproved by the later of 30 days or each of their second subsequent regular meetings. With\nrespect to 2021 PAC C- 0342/ 71408 , the Board provided this office with no additional\n\ninformation disputing the allegation that the minutes of those meetings had not been approved on\na timely basis. Accordingly, this office concludes that the Council and Board violated section\n2.06( b) of OMA by failing to timely approve and make available to the public the minutes of the\nmeetings as alleged , 7 including the meetings of the Council' s Committee of the Whole .\n\nThe Council and Board explained that the late approvals were due to staffing\nissues and the retirement of the then -City Clerk. Both also stated that they would approve and\nmake available any minutes that had not been approved at the time of the Request for Review\nsubmissions. This office' s review of the City' s website confirms that all of the minutes at issue\n\nhave since been approved and made available to the public on the City's website to the extent\n\n7The Council noted that it held two meetings on December 12, 2022. With respect to the regular\nmeeting held that day, the Council stated it approved the minutes of that meeting at its January 9, 2023, regular\nmeeting. Because the Council approved its December 12, 2022, regular meeting minutes within 30 days after that\nmeeting, the Council timely approved those minutes.\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 5\nrequired .8 Because the minutes have since been approved and made available, no further\nremedial action is necessary at this time.\nWebsite Posting of Minutes by the Board\nIn its January 12 , 2024, response to this office, the Board stated that the City posts\n\ncopies of the Board's meeting agendas and minutes on its website and explained that \"[ t]he city\nclerk serves ex officio as the township clerk.\" 9 As noted above, the Board may have also\npreviously posted meeting minutes to a page hosted by the Township Officials of Illinois\nTOI),10 but it does not appear to maintain that website.\nAlthough OMA does not expressly address a public body's use of third -party\nwebsites in the posting of its meeting materials , this office has previously determined that the\nwebsite posting requirements of section 2.06(b) do not apply to social media websites such as a\npublic body's Facebook page . The plain language of section 2.06(b) only requires a public body\nto post meeting minutes if (1) it \"has\" a website , and ( 2) \" the full-time staff of the public body\n\nmaintains\" that website. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 21667, issued October 31, 2012;\nIll. Att'y Gen. PAC Req. Rev. Ltr. 21343, issued September 20, 2012. Therefore, OMA does not\nrequire public bodies to post meeting minutes on websites maintained by third parties, such as\nthe TOI.\nDespite having overlapping boundaries and many of the same officials, 11 the City\n\nand the Township are separate entities governed by separate statutes. Diversified Computer\nServices, Inc. v. York, 104 Ill. App. 3d 852, 856 (1982) (\" townships are not included as\nmunicipalities subject to the proscriptions of the Illinois Municipal Code .\"). The City' s website\n\n8As discussed further below, section 2.06(b) of OMA requires, in relevant part, only that regular\nmeeting minutes of a governing body be posted to a public body's website. Accordingly, the failure of a public body\nto post on its website minutes from its special meetings is not a violation of section 2.06(b ) of OMA.\n\n9Letter from Frederic M. Grosser, Cunningham Township Attorney, to Benjamin J. Silver,\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois ( January 12,\n2024).\n10The web page specified in\nSeptember 10, 2021, Request for Review appears to no\nlonger function as of the date of this determination. See, https:// www.toi.org/ township/ champaign - county cunningham- township . It appears that a similar page is now available at https:// vintage. toi.org/ township/ champaigncounty -cunningham - township .\n\n11City of Urbana, Cunningham Township Board,\nhttps:// urbanaillinois. us/boards/ cunninghamtownship - board (last visited March 23, 2024).\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 6\ncontains a page about the Township Board, but that does not transform the City's website into a\nwebsite of the Township . Because the Township does not have its own website, OMA did not\nrequire the Board to post copies of its meeting materials online . Nonetheless, this office\nencourages the Board to continue posting its meeting materials on the City's website as a matter\nof openness and transparency.\n\nWebsite Posting of Minutes by the Council\nThe Council stated that the City Clerk is responsible for posting minutes to the\nCity s' website, but argued that it did not violate the posting requirements of section 2.06(b)\nbecause the Clerk is an elected official rather than a full-time staff member, and during some of\n\nthe time periods under review ,two staff members who worked in the Clerk's office resigned\nfrom their positions . Specifically, in its September 28, 2021, response to this office, the Council\nasserted that:\nthe City Clerk would be responsible for maintaining the City\n\nClerk's portion of the website, including the posting of any\nmaterial. The City Clerk is an independent elected official within\nthe City. The City Clerk is responsible for the management of the\noffice and all of the duties encompassed within that office. The\nCity Clerk may have full time staff members. The City Clerk\nwould be responsible for assigning any duties to any staff members\n\nof that office. Any duties not so assigned would be the\nresponsibility of the elected City Clerk.[12]\nThe Council further stated:\n\nAs long as the City maintains a full time staff person in the elected\nCity Clerk's office who is assigned the task of maintaining the City\nClerk's portion of the City website, the City will meet its\nobligations under Section 2.06( b) of the Open Meetings Ac t with\n\nregard to the posting of meeting minutes to the City website.[ 13]\n\n12Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\nBureau ( September 28, 2021), at 2.\n\n13Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\nBureau ( September 28, 2021), at 3.\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 7\nIn his replies,\ndisputed the City's claim that the website posting requirements only\napply when the City Clerk's Office has full -time staff who maintain its portion of the website.\nHe noted that City staff includes approximately 250 full -time employees, many of whom prepare\nmaterials and have the ability to post to the City's website. This argument is not disputed by the\nCouncil' s September 28, 2021, response, which acknowledged that \"[ t]he City' s Information\nTechnology staff maintains security controls for the website,\" but also stated that \" each\n\nDepartment is responsible for maintaining their own portion of the website, including posting\nappropriate items and material.\" 14\nSection 2.06 (b) of OMA does not differentiate between portions of a public\nbody' s website, nor does it provide that the full-time staff member' s duties must solely involve\n\nmaintenance of the website. Rather, that provision provides that:\na public body that has a website that the full-time staff of the\npublic body maintains shall post the minutes of a regular meeting\nof its governing body open to the public on the public body' s\n\nwebsite within 10 days after the approval of the minutes by the\npublic body .\nAdopting the Council' s argument that the requirements apply to the \" portion of the website\"\nupdated by the Clerk is contrary to the plain language of section 2.06(b), which expressly applies\nto \" a public body that has a website that the full-time staff of the public body maintains[.]\"\n\nHayashi v. Illinois Department of Financial and Professional Regulation ,2014 IL 116023 , ¶ 16,\nWhere the language of a statute is clear and unambiguous, a reviewing body \"may not depart\nfrom the plain language by reading into the statute exceptions, limitations, or conditions that the\nlegislature did not express .\"). Although the Clerk' s office may not always have full -time staff, it\nis undisputed that other City departments have full -time staff whose job responsibilities include\n\nmaintaining various aspects of the City website. Section 2.06(b) cannot be reasonably construed\nto permit a public body with a website maintained by full-time staff to avoid posting meeting\nminutes on its website by delegating to a part -time employee or elected official the task of\nupdating the portion of the website that contains minutes. Because the Council has a website\n\nthat full-time staff maintains as a part of its duties , this office concludes that the Council is\nsubject to the section 2.06(b) website posting requirements and violated that section by failing to\ntimely post the minutes of its various regular meetings.15\n14Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\nBureau ( September 28, 2021), at 2.\n\n15The website posting requirements of section 2.06(b) of OMA apply to \"the minutes of a regular\nmeeting of \"a public body's governing body. Because a committee of the whole meeting is a meeting with a format\ndifferent from a regular meeting, the website posting requirements do not apply to the minutes of committee of the\nwhole meetings. The website posting requirements also do not apply to the minutes of special meetings.\n\n\fMr. David B. Wesner\nMr. Frederic M. Grosser\nApril 12, 2024\nPage 8\nBecause the minutes have since been posted, no further remedial action is\nnecessary at this time. However, the Public Access Bureau reminds the Council of its obligation\nto timely post the minutes of meetings after their approval, as long as full -time staff of the City\nmaintain its website.\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. These files are closed . If you have any questions,\nplease contact me at benjamin.silver@ilag.gov or (773) 590 -7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n71408 71411 75756 79504 79539 o 206b proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Meeting minutes approval and website posting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71408/","full_text":"April 12, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. David B. Wesner\n\nAttorney for City of Urbana\nEvans, Froehlich, Beth & Chamley\n44 Main Street, Suite 310\nChampaign, Illinois 61820\ndwesner@efbclaw. com\n\nVia electronic mail\nMr. Frederic M. Grosser\nCunningham Township Attorney\n107 North Elm Street, Suite 210\n\nChampaign, Illinois 61820\nfrederic.grosser@gmail.com\nRE:\n\nOMA Requests for Review – 2021 PAC C-0342/71408; C-0343/71411;\n2023 PAC 75756; 79504; 79539\n\nDear,\n\nMr. Wesner, and Mr. Grosser:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). This office has consolidated five Requests for Review\n\nBACKGROUND\nOn September 9, 2021, the Public Access Bureau received a Request for Review\n2021 PAC C-0343/71411) from\nalleging that the City of Urbana (City)\nCity Council (Council) violated section 2.06(b) of OMA (5 ILCS 120/ 2.06(b) (West 2020)) by\nfailing to timely approve and post minutes of a series of meetings between May 17, 2021, and\n\nAugust 16, 2021. 1 On September 23, 2021, this office forwarded the Request for Review to the\nCouncil and asked it to provide a written response to the allegations in the Request for Review.\nOn September 28, 2021, this office received the Council's response and forwarded a copy to\nOn October 14, 2021, he replied.\nOn September 10, 2021, the Public Access Bureau received a second Request for\nReview (2021 PAC C-0342/71408) from\nalleging that the Cunningham Township\nTownship) Board (Board) violated section 2.06(b) of OMA by failing to timely approve and\npost minutes of a series of meetings between April 5, 2021, and July 12, 2021. 2\nalso\nstated that, although the Board appears to have its own website hosted via Township Officials of\n\nIllinois,3 Board meeting documents are regularly posted on the City's website.4 Following a\nSeptember 21, 2021, telephone conversation between an Assistant Attorney General in the Public\nAccess Bureau and a Township representative, the Township Supervisor sent an e-mail to this\noffice stating that Phyllis Clark, the elected Clerk for both the City and the Township, would\nrespond to the complaint. However, this office did not receive any further communication from\nMs. Clark or the Township. On October 12, 2021,\nclarified the allegations in this\n\nRequest for Review and added two other meetings held on August 9, 2021, to the list of meetings\nhe believed to be in violation of section 2.06(b) of OMA.\nOn March 7, 2023, the Public Access Bureau received a third Request for Review\n2023 PAC 75756) from\nalleging that the Council violated section 2.06(b) of OMA\n\nby failing to timely approve and post minutes of a series of meetings between December 12,\n\nalleged violations in connection with the Council's May 17, 2021, May 24, 2021,\nJune 7, 2021, June 14, 2021, June 21, 2021, June 28, 2021, July 6, 2021, July 12, 2021, August 2, 2021, August 9,\n2021, and August 16, 2021, meetings, which included six Committee of the Whole meetings and two public\nhearings.\nalleged violations in connection with the Board's April 5, 2021, April 12, 2021, April\n13, 2021, April 19, 2021, May 10, 2021, June 14, 2021, June 21, 2021, June 28, 2021, and July 12, 2021, meetings\n\n2022, and February 6, 2023. 5 On March 16, 2023, this office forwarded the Request for Review\nto the Council and asked it to provide a written response to those allegations. On March 27,\n2023, this office received the Council's response and forwarded a copy to.\nOn April\n10, 2023, he replied to this office, noting that some additional meetings held in February 2023,\ndid not appear to be approved and/ or posted.\n\nOn December 26, 2023, the Public Access Bureau received two Requests for\nReview (2023 PAC 79504 and 79539) from\nalleging that the Council and the Board\nviolated section 2.06(b) of OMA by failing to timely approve and post minutes of a series of\nmeetings between July 31, 2023, and November 27, 2023.6 On January 5, 2024,this office\nforwarded copies of the Requests for Review to the Council and Board and asked each to provide\n\nthis office with a written response to the allegations in the Request for Review. On January 12,\n2024, and January 16, 2024, this office received response s from the Board and Council,\nrespectively, and forwarded copies of both to.\nOn February 16, 2024,\nreplied to each of those responses.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 2.06(b) of OMA provide s, in pertinent part:\n\nA public body shall approve the minutes of its open\nmeeting within 30 days after that meeting or at the public\nbody's second subsequent regular meeting, whichever is later.\nA] public body that has a website that the full-time staff of\n\nthe public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public\nbody's website within 10 days after the approval of the minutes by\nthe public body. (Emphasis added.)\n\nalleged violations in connection with the Council's December 12, 2022, December\n19, 2022, January 3, 2023, January 17, 2023, January 23, 2023, and February 6, 2023, meetings.\nalleged violations in connection with the Council's July 31, 2023, August 14, 2023,\nAugust 21, 2023, August 28, 2023, September 5, 2023, September 11, 2023, September 18, 2023, September 25,\n2023, October 16, 2023, October 23, 2023, November 6, 2023, November 13, 2023, November 20, 2023, and\nNovember 27, 2023, meetings, which included Committee of the Whole meetings and one joint meeting with the\n\nTimely Approval of Minutes\n\nlisted in\n\nAs an initial matter, the Council's responses stated that some of the meetings\nRequests for Review were Committee of the Whole meetings. The\n\nCouncil asserted that the minutes of the Committee of the Whole meetings identified in 2023\nPAC 75756 were timely approved at the second subsequent meeting of the Committee of the\n\nWhole,as opposed to the second subsequent Council meeting. However, committees of the\nwhole are not considered separate from a public body,but rather provide a different meeting\nformat for the public body. See Black's Law Dictionary 341 (11th ed. 2019) (defining\ncommittee of the whole \"as \"[ a] deliberative assembly may resolve itself into a committee of the\nwhole so that it can take advantage of the greater procedural flexibility that a committee enjoys,\n\nusu. presided over by some chair other than the assembly's regular chair.\" Because a public body\nand its committee of the whole are essentially the same entity, the Public Access Bureau has\npreviously determined that a township board must approve minutes of its committee of the whole\nmeeting by the latter of 30 days or at the township board's second subsequent regular meeting––\nregardless of the format in which those meetings were held. See Ill. Att'y Gen. PAC Req. Rev.\n\nLtr. 46954, issued May 23, 2017, at 3.\nBeyond the Committee of the Whole meetings, both the Council and Board\nacknowledged in their responses to this office that the minutes of the meetings at issue were not\napproved by the later of 30 days or each of their second subsequent regular meetings. With\nrespect to 2021 PAC C- 0342/ 71408, the Board provided this office with no additional\n\ninformation disputing the allegation that the minutes of those meetings had not been approved on\na timely basis. Accordingly, this office concludes that the Council and Board violated section\n2.06(b) of OMA by failing to timely approve and make available to the public the minutes of the\nmeetings as alleged, 7 including the meetings of the Council's Committee of the Whole.\n\nThe Council and Board explained that the late approvals were due to staffing\nissues and the retirement of the then -City Clerk. Both also stated that they would approve and\nmake available any minutes that had not been approved at the time of the Request for Review\nsubmissions. This office's review of the City's website confirms that all of the minutes at issue\n\nhave since been approved and made available to the public on the City's website to the extent\n\n7 The Council noted that it held two meetings on December 12, 2022. With respect to the regular\nmeeting held that day, the Council stated it approved the minutes of that meeting at its January 9, 2023, regular\nmeeting. Because the Council approved its December 12, 2022, regular meeting minutes within 30 days after that\n\nrequired.8 Because the minutes have since been approved and made available, no further\nremedial action is necessary at this time.\nWebsite Posting of Minutes by the Board\nIn its January 12, 2024, response to this office, the Board stated that the City posts\n\ncopies of the Board's meeting agendas and minutes on its website and explained that \"[ t]he city\nclerk serves ex officio as the township clerk.\" 9 As noted above, the Board may have also\npreviously posted meeting minutes to a page hosted by the Township Officials of Illinois\nTOI),10 but it does not appear to maintain that website.\nAlthough OMA does not expressly address a public body's use of third -party\nwebsites in the posting of its meeting materials, this office has previously determined that the\nwebsite posting requirements of section 2.06(b) do not apply to social media websites such as a\npublic body's Facebook page. The plain language of section 2.06(b) only requires a public body\nto post meeting minutes if (1) it \"has\" a website, and (2) \" the full-time staff of the public body\n\nmaintains\" that website. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 21667, issued October 31, 2012;\nIll. Att'y Gen. PAC Req. Rev. Ltr. 21343, issued September 20, 2012. Therefore, OMA does not\nrequire public bodies to post meeting minutes on websites maintained by third parties, such as\nthe TOI.\nDespite having overlapping boundaries and many of the same officials, 11 the City\n\nand the Township are separate entities governed by separate statutes. Diversified Computer\nServices, Inc. v. York, 104 Ill. App. 3d 852, 856 (1982) (\" townships are not included as\nmunicipalities subject to the proscriptions of the Illinois Municipal Code.\"). The City's website\n\n8 As discussed further below, section 2.06(b) of OMA requires, in relevant part, only that regular\nmeeting minutes of a governing body be posted to a public body's website. Accordingly, the failure of a public body\nto post on its website minutes from its special meetings is not a violation of section 2.06(b) of OMA.\n\n9 Letter from Frederic M. Grosser, Cunningham Township Attorney, to Benjamin J. Silver,\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (January 12,\n2024).\n10 The web page specified in\nSeptember 10, 2021, Request for Review appears to no\nlonger function as of the date of this determination. See, https:// www.toi.org/ township/ champaign - county cunningham- township. It appears that a similar page is now available at https:// vintage. toi.org/ township/ champaigncounty -cunningham - township.\n\n11 City of Urbana, Cunningham Township Board,\nhttps:// urbanaillinois. us/boards/ cunninghamtownship - board (last visited March 23, 2024).\n\ncontains a page about the Township Board, but that does not transform the City's website into a\nwebsite of the Township. Because the Township does not have its own website, OMA did not\nrequire the Board to post copies of its meeting materials online. Nonetheless, this office\nencourages the Board to continue posting its meeting materials on the City's website as a matter\nof openness and transparency.\n\nWebsite Posting of Minutes by the Council\nThe Council stated that the City Clerk is responsible for posting minutes to the\nCity s' website, but argued that it did not violate the posting requirements of section 2.06(b)\nbecause the Clerk is an elected official rather than a full-time staff member, and during some of\n\nthe time periods under review,two staff members who worked in the Clerk's office resigned\nfrom their positions. Specifically, in its September 28, 2021, response to this office, the Council\nasserted that:\nthe City Clerk would be responsible for maintaining the City\n\nClerk's portion of the website, including the posting of any\nmaterial. The City Clerk is an independent elected official within\nthe City. The City Clerk is responsible for the management of the\noffice and all of the duties encompassed within that office. The\nCity Clerk may have full time staff members. The City Clerk\nwould be responsible for assigning any duties to any staff members\n\nof that office. Any duties not so assigned would be the\nresponsibility of the elected City Clerk.[12]\nThe Council further stated:\n\nAs long as the City maintains a full time staff person in the elected\nCity Clerk's office who is assigned the task of maintaining the City\nClerk's portion of the City website, the City will meet its\nobligations under Section 2.06(b) of the Open Meetings Ac t with\n\nregard to the posting of meeting minutes to the City website.[ 13]\n\n12 Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\nBureau (September 28, 2021), at 2.\n\n13 Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\n\nIn his replies,\ndisputed the City's claim that the website posting requirements only\napply when the City Clerk's Office has full -time staff who maintain its portion of the website.\nHe noted that City staff includes approximately 250 full -time employees, many of whom prepare\nmaterials and have the ability to post to the City's website. This argument is not disputed by the\nCouncil's September 28, 2021, response, which acknowledged that \"[ t]he City's Information\nTechnology staff maintains security controls for the website,\" but also stated that \" each\n\nDepartment is responsible for maintaining their own portion of the website, including posting\nappropriate items and material.\" 14\nSection 2.06 (b) of OMA does not differentiate between portions of a public\nbody's website, nor does it provide that the full-time staff member's duties must solely involve\n\nmaintenance of the website. Rather, that provision provides that:\na public body that has a website that the full-time staff of the\npublic body maintains shall post the minutes of a regular meeting\nof its governing body open to the public on the public body's\n\nwebsite within 10 days after the approval of the minutes by the\npublic body.\nAdopting the Council's argument that the requirements apply to the \" portion of the website\"\nupdated by the Clerk is contrary to the plain language of section 2.06(b), which expressly applies\nto \" a public body that has a website that the full-time staff of the public body maintains[.]\"\n\nHayashi v. Illinois Department of Financial and Professional Regulation,2014 IL 116023, ¶ 16,\nWhere the language of a statute is clear and unambiguous, a reviewing body \"may not depart\nfrom the plain language by reading into the statute exceptions, limitations, or conditions that the\nlegislature did not express.\"). Although the Clerk's office may not always have full -time staff, it\nis undisputed that other City departments have full -time staff whose job responsibilities include\n\nmaintaining various aspects of the City website. Section 2.06(b) cannot be reasonably construed\nto permit a public body with a website maintained by full-time staff to avoid posting meeting\nminutes on its website by delegating to a part -time employee or elected official the task of\nupdating the portion of the website that contains minutes. Because the Council has a website\n\nthat full-time staff maintains as a part of its duties, this office concludes that the Council is\nsubject to the section 2.06(b) website posting requirements and violated that section by failing to\ntimely post the minutes of its various regular meetings.15\n14 Letter from David B. Wesner to Christopher Boggs, Assistant Attorney General, Public Access\nBureau (September 28, 2021), at 2.\n\n15 The website posting requirements of section 2.06(b) of OMA apply to \"the minutes of a regular\nmeeting of \"a public body's governing body. Because a committee of the whole meeting is a meeting with a format\ndifferent from a regular meeting, the website posting requirements do not apply to the minutes of committee of the\nwhole meetings. The website posting requirements also do not apply to the minutes of special meetings.\n\nBecause the minutes have since been posted, no further remedial action is\nnecessary at this time. However, the Public Access Bureau reminds the Council of its obligation\nto timely post the minutes of meetings after their approval, as long as full -time staff of the City\nmaintain its website.\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\nplease contact me at benjamin.silver@ilag.gov or (773) 590 -7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n71408 71411 75756 79504 79539 o 206b proper improper mun"}
{"id":1383,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-03-24","case_number":null,"request_numbers":["71523"],"title":"Dunlap School Board violated OMA by discussing book removal policy in closed session","filename":"71523, issued March 24, 2023__1.pdf","rel_path":null,"word_count":2464,"summary":"The Public Access Counselor investigated allegations that the Dunlap Community School District No. 323 Board of Education improperly discussed and took final action on a book removal policy during a closed session. The PAC determined that the Board discussed unauthorized topics in closed session and failed to take final action on a policy change in an open meeting.","plain_summary":"A citizen complained that a school board improperly discussed removing a book from a curriculum during a closed session. The Attorney General's office found that the board discussed topics beyond the allowed exception (personnel matters) and implemented a policy change without taking final action in an open meeting, violating the Open Meetings Act. The office requested the board make part of its closed session minutes public and cautioned it to follow the law in the future, but did not declare the policy change invalid.","holding":"The Board of Education violated the Open Meetings Act by discussing unauthorized topics in closed session and implementing a policy change without taking final action in an open session.","legal_question":"Whether a public body violated the Open Meetings Act by discussing a book removal policy in closed session and implementing a policy change without a vote in open session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Board of Education of Dunlap Community School District No. 323","requesting_party":"Stacia Fee","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Education discussed and implemented a policy change regarding the removal of a book from a high school curriculum during a closed session.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/71523, issued March 24, 2023.pdf","sha256":"65c92edc5fbac3415691b01c37e2a310bd32f1cfc308edf4d366db2a18aef495","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","final action","open meeting","policy change"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"FFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nMarch 24, 2023\n\nVia electronic\n\nmail\n\nMs. Stacia Fee\n10305\n\nAutumnview\n\nCourt\n\nPeoria, Illinois 61515\nstaciafee@gmail.\n\nVia electronic\n\ncom\n\nmail\n\nMr. Jay E. Greening\nMiller, Hall &\n\nTriggs, LLC\n\n416 Main Street, Suite 1125\nPeoria, Illinois\n\n61602- 1 54 jay. grenig@mhtlaw. com RE:\n\nOMA Request for\nReview — 2022 PAC 71523 Dear\n\nMs. Fee and\n\nMr.Greening: This determination is issued\npursuant to section 3.\n5(\ne)of the Open Me tings Act OMA) (5 ILCS 120/\n3. 5( e)\nWest (\n2020)). For\n\nthe\n\nreasons explained\n\nbelow, the Public\n\nBoard of Education ( Board) of Dunlap Community\ninto\n\ncertain\n\nunauthorized\n\nAccess\n\nBureau\n\nconcludes that the\n\nSchool District No.323 D\n(istrict) veered\n\ntopics in closed session\n\non April 20,2022, and implemented a policy\n\nchange without properly taking final action in open session. BACKGROUND On April 28,\n2022,\n\nthe Public Access Bureau\n\nreceived Ms.Stacia Fee' s Request for Review aleging that\n\nduring the closed session portion of the April 20,2022, meeting, the Board improperly discussed and\ntook final action regarding the removal of the book Hey Boy by Jarrett Krosoczkal from a\nhigh school English -Language assignment. 1The title of the\n\nbook is Hey, Kiddo and wil be referred to as Hey, Kiddo by this office in this determination letter. 500 South\nSecond\n\nStreet,\n\nSpringfield, Illinois 62701 •217)\n(\n782-1090 •TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100\n\nWest\n\nRandolph Street,\n\nChicago, Illinois 60601 •312)\n(\n814- 3000 •TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601\n\nSouth\n\nUniversity Ave.,\n\nCarbondale, Illinois\n\n529-6400 •TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n62901 •618)\n(\n\n\fs.Stacia Fee\n\nMr. Jay E. Greening\nMarch 24, 2023\nPage 2\n\nOn May 4, 2022, this office forwarded a copy of Ms. Fee' s Request for Review to\nthe Board and asked it to provide a copy of the open session and closed session minutes from its\nApril 20, 2022 meeting, along with the verbatim recording of the closed session discussion for\n\nthis office' s confidential review. This office asked that the Board provide a written response to\nthe allegation that it improperly entered closed session to discuss removing the book and, if it did\ndiscuss the book, then to identify the exception in section 2( c) of OMA that served as the basis\nfor discussing that topic. Further, this office asked the Board to address whether it made a\n\ndecision and/ or held a vote about the book during the closed session, or during open session or\noutside of the meeting. If the Board members exchanged any communications about the topic,\nthis office asked to review copies of any such communications.\nUpon her receipt of this office' s inquiry letter to the Board, Ms. Fee sent this\n\noffice a screenshot of a Facebook post from before the Board meeting on April 20, 2022, in\nwhich Board President Abby Humbles appeared to comment on a parent' s complaint about the\nbook\n\nby stating: \" This is being addressed.\n\nadministrators\n\nand fellow board\n\nmembers.\"'\n\nI have shared this information with our\nMs. Fee alleged that \"[ t] his clearly shows that the\n\nboard discussed this issue outside of the board meeting held that night. i3\nOn May 27, 2022, the Board provided this office with its written response and\ncopies of the open and closed session minutes, but no closed session verbatim recording and no\ncommunications among Board members. On June 21, 2022, Ms. Fee submitted a reply.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their\n\ndeliberations be conducted\n\nopenly.\"\n\n5 ILCS\n\n120/ 1 ( West 2020).\n\nAccordingly, section\n\n2( a) of OMA4 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2( c) of OMA. 5 The\n\nsection 2( c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\nAbby Hulick Humbles, comment, Facebook ( April 20, 2022).\n\n3E- mail from Stacia Fee to [ Steven] Silverman ( May 4, 2022).\n45 ILCS 120/ 2( a) ( West 2021 Supp.).\n55 ILCS 120/ 2( c) ( West 2021 Supp.).\n\n\fs.Stacia Fee\n\nMr. Jay E. Greening\nMarch 24, 2023\nPage 3\n\ni6\n\nSee also Henry v. Anderson,\nconstruing OMA section 2( c)( 1) 7).\ntheir scope.\n\n356 Ill. App. 3d 952, 996- 97 ( 4th Dist. 2005) ( strictly\n\nSection 2( c)( 1) of OMA\n\nSection 2( c)( 1) of OMA, the exception on which the Board relied for the Hey,\nKiddo- related\n\ndiscussion,\n\nbody to enter closed session to discuss \"[ t] he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\npermits\n\na public\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic\n\nbody to determine its validity.\"\n\nThe section 2( c)( 1) exception is designed to protect the\n\nreputation and identity of specific individuals. See, for example, Ill. Att' y Gen. Pub. Acc. Op.\nNo. 15- 007, issued September 16, 2015, at 4 ( finding that discussions concerning the elimination\nof a job position held by a single employee for budgetary reasons would not implicate an\nemployee'\n\ns reputation,\n\nand therefore\n\ndid not fall\n\nwithin\n\nthe exception\n\nin section 2( c)( 1));\n\nIll. Att'y\n\nGen. Pub. Acc. Op. No. 16- 013, issued December 23, 2016, at 4 ( section 2( c)( 1) did not\n\nauthorize discussion of across- the- board salary increase for a broad category of employees).\n\nIn the Board's response to this office, the Board stated that a verbatim recording\nof the pertinent discussion does not exist as a result of a failure of the recording device. Thus,\nthe Board appears to have inadvertently violated section 2. 06( a) of OMA8 in connection with its\nApril 20, 2022, meeting,\na verbatim\n\nbecause section 2. 06( a) requires\n\nrecord of all their closed\n\nmeetings\n\nthat \"[\n\na] 11 public bodies shall keep * *\n\nin the form of an audio\n\nor video\n\nrecording.\"\n\nThe\n\nBoard notified this office that it had since purchased a new recording device, and enclosed a\nreceipt for that product.\nRegarding the contents of the closed session discussion, the Board explained that\n2( c)( 1)] was given, at least in part, to provide the board with information\n\nt] his reason [ section\n\nabout the failure\nof the three teachers to utilize the appropriate process to approve curriculum\ni9\n\nmaterials.\n\nThe Board\n\nalso\n\nexplained that \"[ t] he administration\n\nadvised\n\nthe\n\nboard of * * * the\n\n65 ILCS 120/ 2( b) ( West 2021 Supp.).\n5 ILCS 120/ 2( c)( 1) ( West 2021 Supp.).\n5 ILCS 120/ 2. 06( a) ( West 2021 Supp.).\n9E- mail from Jay Greening,\n2022).\n\nMiller, Hall &\n\nTriggs, LLC, to [ Steven] Silverman ( May 27,\n\n\fs.Stacia Fee\n\nMr. Jay E. Greening\nMarch 24, 2023\nPage 4\n\nway in which it intended to handle the\n\nmatter\n\nwith the teachers\n\ngiven the terms\n\nof the policy.\n\ni10\n\nThe Board provided the closed session minutes for this office' s confidential review. The\nminutes, which comprise just two short paragraphs for a discussion that appears to have lasted\napproximately 48 minutes, indicate that the Board discussed the conduct and performance of two\nspecific employees in closed session. While such a discussion of specific employees' work\nconduct\n\nand performance\n\nfalls\n\nwithin\n\nthe scope of section 2( c)( 1),\n\nthe draft minutes contain little\n\ninformation about this portion of the Board' s discussion, and the Board failed to furnish a\nverbatim recording. Thus, while some if not all of this portion of the discussion may have been\nauthorized by section 2( c)( 1), this office is unable to ascertain the extent to which the Board may\nhave improperly discussed the contents of the book.\nThe Board also explained that:\nBoard members confirmed with the administration\n\nthat there was\n\nan intent to reinforce with all teachers the need to follow the\n\nappropriate curriculum approval process. There was some\nconversation\n\nin closed session between administrators\n\nand board\n\nmembers about the parental complaints which lead to the discovery\nof failure of the teachers to follow district curriculum\n\napproval\n\nprotocol by way of background to address the personnel matter.\nThe administration explained that, going forward, teachers would\nbe required to submit recommended\n\ncurriculum to the Department\n\nChair to have curriculum and books approved.\n\nAt that stage in the\n\nprocess, the teachers are allowed to provide their reasoning for the\nrecommended materials and then the Department Chair makes a\nrecommendation to the administration for consideration and\napproval. (\n\nEmphasis added.)[\"\n\nThis portion of the Board' s discussion clearly exceeded the scope of the section 2( c)( 1) exception\n\nby straying from a discussion of specific employees to broader matters involving all teachers and\ncurriculum\n\npolicy.\n\nTo remedy its improper discussion of matters in closed session, this office\n\nrequests that the Board vote to make publicly available this portion of its closed session minutes\nfrom its April 20, 2022, meeting. This office also cautions the Board to limit its closed session\nE- mail from Jay Greening,\n\nMiller, Hall &\n\nTriggs, LLC, to [ Steven] Silverman ( May 27,\n\n2022).\n\nE- mail from\n2022).\n\nJay Greening, Miller, Hall & Triggs, LLC, to [ Steven] Silverman ( May 27,\n\n\fs. Stacia Fee\n\nMr. Jay E. Greening\nMarch 24, 2023\nPage 5\n\ndiscussion to the scope of the exceptions that it cites to close portions of its meetings in the\nfuture. Additionally, this office cautions the Board that it must make and keep verbatim\nrecordings of all of its closed sessions, as well as closed session minutes that sufficiently\nsummarize\n\nits \" discussion\n\n120/ 2. 06( a)( 3) (\n\non\n\nall matters\n\nproposed, deliberated,\n\nor\n\ndecided[.]\"\n\n5 ILCS\n\nWest 2021 Supp.).\nFinal Action\n\nSection\ntaken at a closed\n\n2( e) of OMA12 provides,\n\nmeeting.\"\n\nin pertinent part, that \"[\n\nn] o final action may be\nWhile a public body may take a preliminary vote in a closed session,\n\nall final actions must be taken in an open meeting. Board ofEducation of Springfield School\nDistrict No. 186 v. Attorney General ofIllinois, 2017 IL 120343, 173-74, 77 N.E. 3d 625, 637\n2017).\n\nIn its response\n\nto this office, the Board' s attorney\n\nstated that: \"\n\nContrary to the\n\nallegations raised in the Request to Review, at no time did the Board vote to ban the book Hey\nKiddo from the school or the assignment. Board members also did not decide to ban the book\nfrom the school or the assignment\n\nboard meeting. i13\n\nThe Board' s attorney claimed\nt] he administration decided, before the board meeting, that families that had concerns\nabout the book would be allowed to substitute a different book for the assignment if they\noutside\n\nthe\n\nthat \"[\n\nchose. i14 The Board' s attorney further claimed that \" a letter explaining the resolution of the\nissue to all of the parents of students in the classes that had selected the Hey, Kiddo book * * *\nwas\n\nsent at\n\n3: 30 p. m. on April 22, 2022 — hours before the meeting. i 15 The Board enclosed a\n\ncopy of this e- mail, which indeed was sent at 3: 30 p. m. on April 22, 2022, and advised that\n\nstudents could select a book other than Hey, Kiddo to complete the assignment. l6\nThe Board' s attorney misstated the timeline here. The Board meeting was held on\nApril 20, 2022, not April 22, 2022; the e- mail to parents was sent out after the Board meeting.\n\n125 ILCS 120/ 2( e) ( West 2021 Supp.).\n13E- mail from Jay Greening, Miller, Hall & Triggs, LLC, to [ Steven] Silverman ( May 27,\n2022).\n\n14E- mail from Jay Greening, Miller, Hall & Triggs, LLC, to [ Steven] Silverman ( May 27,\n2022).\n\n15E- mail from Jay Greening, Miller, Hall & Triggs, LLC, to [ Steven]\n2022).\n\n16E- mail from JEP to [ redacted] ( April 22, 2022).\n\nSilverman ( May 27,\n\n\fs. Stacia Fee\n\nMr. Jay E. Greening\nMarch 24, 2023\nPage 6\n\nIn her reply, Ms. Fee contended that it was difficult to discern whether final action\nwas\n\ntaken.\n\nShe stated: \"\n\nThe board has no audio evidence from the closed session to support\n\ntheir claim, due to the timing of the recording device 'failure' as well as the convenient absence\n\nof the content from the secondary recording device.\" 17 Ms. Fee attached a document to her reply\nlabeled \" FOIA Book Decision — Emails,\"\n\nwhich consists of a compilation of a -mails involving\n\nDistrict personnel. In one e- mail to several teachers on April 21, 2022, Dunlap High School\nPrincipal\n\nDr. Scott Adreon\n\npassed\n\nSuperintendent of Curriculum,\nBoard meeting.\"\n\nalong\n\na \" message * * *\n\nInstruction, &\n\nfrom Matt Andrews[,]\"\n\nHuman Resources, \"\n\nAssistant\n\nresulting from last night' s\n\n1 s In this message, Mr. Andrews mentioned parental concerns about Hey, Kiddo\n\nand another book, then directed that \" neither book is to be used moving forward. i19 He also\nspecified a new procedure that teachers must follow to obtain approval for any new texts. In\nanother e- mail on April 22, 2022, Dr. Adreon responded to a parent's April 19, 2022, e- mail\ncomplaint\n\nabout\n\nHey, Kiddo, by advising: \" we are currently working through the process of\n\npulling a couple of books out of our curriculum, Hey Kiddo is one of them. i20 Ms. Fee alleged\nthat \" processes/ policies were revised as part of the resolution of this matter. i21\nThe April 20, 2022, closed session minutes do not state that the Board decided to\n\nban the book Hey, Kiddo. Dr. Adreon' s April 21, 2022, e- mail to teachers, however, reflects that\n\nDistrict administrators ended the District' s use of the book as a result of the Board meeting. The\nclosed session minutes do document that the Board unanimously agreed on a new procedure\nrelated to curriculum in closed session and issued a directive to the Board to implement it.\n\nAdditionally, the communications this office reviewed from before and after the meeting suggest\nthat the Board decided on and began to implement such a change during the closed session\nwithout following up with action on that change in open session. When a public body finalizes\naction such as a policy change, that final action must be taken openly. See Howe v. Retirement\nBoard of Firemen' s Annuity & Benefit Fund of Chicago, 2013 IL App ( 1st) 122446, ¶ 26, 996\nN. E. 2d 664, 974- 75 ( 2013) (\n\nfinding board' s written denial of benefits invalid because the board\n\nhad circulated the decision for signatures privately rather than voting on it in open session).\nE- mail from Stacia Fee to [ Steven] Silverman ( June 21, 2022) ( referencing the Board' s assertion\nthat after the recording device failed, the Board Secretary used her personal phone to record the discussion, but her\nphone failed too before the discussion in question).\n\n18E- mail from Scott Adreon, Ed. D, Principal, Dunlap High School, to Leah Aeschliman, Julia\nMackel, and Davina Frazier ( April 21, 2022).\n\n19Message from Matt [ Andrews] to [ unspecified] ( undated).\n\nE- mail from Scott Adreon, Ed. D, Principal, Dunlap High School, to Julia Ekstrom and Matt\nAndrews ( April 22, 2022).\nE- mail from Stacia Fee to [ Steven]\n\nSilverman ( June 21, 2022).\n\n\f\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's closed-session discussion of a book removal policy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71523/","full_text":"FFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nMarch 24, 2023\n\nVia electronic\n\nmail\n\nMs. Stacia Fee\n10305\n\nAutumnview\n\nCourt\n\nPeoria, Illinois 61515\nstaciafee@gmail.\n\nVia electronic\n\ncom\n\nmail\n\nMr. Jay E. Greening\nMiller, Hall &\n\nTriggs, LLC\n\n416 Main Street, Suite 1125\nPeoria, Illinois\n\n61602- 1 54 jay. grenig@mhtlaw. com RE:\n\nOMA Request for\nReview — 2022 PAC 71523 Dear\n\nMs. Fee and\n\nMr.Greening: This determination is issued\npursuant to section 3.\n5(e)of the Open Me tings Act OMA) (5 ILCS 120/\n3. 5(e)\nWest (2020)). For\n\nthe\n\nreasons explained\n\nbelow, the Public\n\nBoard of Education (Board) of Dunlap Community\ninto\n\ncertain\n\nunauthorized\n\nAccess\n\nBureau\n\nconcludes that the\n\nSchool District No.323 D\n(istrict) veered\n\ntopics in closed session\n\non April 20,2022, and implemented a policy\n\nchange without properly taking final action in open session. BACKGROUND On April 28,\n2022,\n\nthe Public Access Bureau\n\nreceived Ms.Stacia Fee's Request for Review aleging that\n\nduring the closed session portion of the April 20,2022, meeting, the Board improperly discussed and\ntook final action regarding the removal of the book Hey Boy by Jarrett Krosoczkal from a\nhigh school English -Language assignment. 1 The title of the\n\nbook is Hey, Kiddo and wil be referred to as Hey, Kiddo by this office in this determination letter. 500 South\nSecond\n\nStreet,\n\nSpringfield, Illinois 62701 •217)\n(782-1090 •TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n\n100\n\nWest\n\nRandolph Street,\n\nChicago, Illinois 60601 •312)\n(814- 3000 •TTY: (800) 964- 3013 • Fax: (312) 814- 3806\n\n601\n\nSouth\n\nOn May 4, 2022, this office forwarded a copy of Ms. Fee's Request for Review to\nthe Board and asked it to provide a copy of the open session and closed session minutes from its\nApril 20, 2022 meeting, along with the verbatim recording of the closed session discussion for\n\nthis office's confidential review. This office asked that the Board provide a written response to\nthe allegation that it improperly entered closed session to discuss removing the book and, if it did\ndiscuss the book, then to identify the exception in section 2(c) of OMA that served as the basis\nfor discussing that topic. Further, this office asked the Board to address whether it made a\n\ndecision and/ or held a vote about the book during the closed session, or during open session or\noutside of the meeting. If the Board members exchanged any communications about the topic,\nthis office asked to review copies of any such communications.\nUpon her receipt of this office's inquiry letter to the Board, Ms. Fee sent this\n\noffice a screenshot of a Facebook post from before the Board meeting on April 20, 2022, in\nwhich Board President Abby Humbles appeared to comment on a parent's complaint about the\nbook\n\nby stating: \" This is being addressed.\n\nadministrators\n\nand fellow board\n\nmembers.\"'\n\nI have shared this information with our\nMs. Fee alleged that \"[ t] his clearly shows that the\n\nboard discussed this issue outside of the board meeting held that night. i3\nOn May 27, 2022, the Board provided this office with its written response and\ncopies of the open and closed session minutes, but no closed session verbatim recording and no\ncommunications among Board members. On June 21, 2022, Ms. Fee submitted a reply.\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their\n\ndeliberations be conducted\n\nopenly.\"\n\n5 ILCS\n\n120/ 1 (West 2020).\n\nAccordingly, section\n\n2(a) of OMA4 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. 5 The\n\nsection 2(c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ni6\n\nSee also Henry v. Anderson,\nconstruing OMA section 2(c)(1) 7).\ntheir scope.\n\n356 Ill. App. 3d 952, 996- 97 (4th Dist. 2005) (strictly\n\nSection 2(c)(1) of OMA\n\nSection 2(c)(1) of OMA, the exception on which the Board relied for the Hey,\nKiddo- related\n\ndiscussion,\n\nbody to enter closed session to discuss \"[ t] he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\npermits\n\na public\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic\n\nbody to determine its validity.\"\n\nThe section 2(c)(1) exception is designed to protect the\n\nreputation and identity of specific individuals. See, for example, Ill. Att' y Gen. Pub. Acc. Op.\nNo. 15- 007, issued September 16, 2015, at 4 (finding that discussions concerning the elimination\nof a job position held by a single employee for budgetary reasons would not implicate an\nemployee's reputation,\n\nand therefore\n\ndid not fall\n\nwithin\n\nthe exception\n\nin section 2(c)(1));\n\nIll. Att'y\n\nGen. Pub. Acc. Op. No. 16- 013, issued December 23, 2016, at 4 (section 2(c)(1) did not\n\nauthorize discussion of across- the- board salary increase for a broad category of employees).\n\nIn the Board's response to this office, the Board stated that a verbatim recording\nof the pertinent discussion does not exist as a result of a failure of the recording device. Thus,\nthe Board appears to have inadvertently violated section 2. 06(a) of OMA8 in connection with its\nApril 20, 2022, meeting,\na verbatim\n\nbecause section 2. 06(a) requires\n\nrecord of all their closed\n\nmeetings\n\nthat \"[\n\na] 11 public bodies shall keep * *\n\nin the form of an audio\n\nor video\n\nrecording.\"\n\nThe\n\nBoard notified this office that it had since purchased a new recording device, and enclosed a\nreceipt for that product.\nRegarding the contents of the closed session discussion, the Board explained that\n2(c)(1)] was given, at least in part, to provide the board with information\n\nt] his reason [ section\n\nabout the failure\nof the three teachers to utilize the appropriate process to approve curriculum\ni9\n\nmaterials.\n\nThe Board\n\nalso\n\nexplained that \"[ t] he administration\n\nadvised\n\nthe\n\nboard of * * * the\n\n65 ILCS 120/ 2(b) (West 2021 Supp.).\n5 ILCS 120/ 2(c)(1) (West 2021 Supp.).\n5 ILCS 120/ 2. 06(a) (West 2021 Supp.).\n\nway in which it intended to handle the\n\nmatter\n\nwith the teachers\n\ngiven the terms\n\nof the policy.\n\ni10\n\nThe Board provided the closed session minutes for this office's confidential review. The\nminutes, which comprise just two short paragraphs for a discussion that appears to have lasted\napproximately 48 minutes, indicate that the Board discussed the conduct and performance of two\nspecific employees in closed session. While such a discussion of specific employees' work\nconduct\n\nand performance\n\nfalls\n\nwithin\n\nthe scope of section 2(c)(1),\n\nthe draft minutes contain little\n\ninformation about this portion of the Board's discussion, and the Board failed to furnish a\nverbatim recording. Thus, while some if not all of this portion of the discussion may have been\nauthorized by section 2(c)(1), this office is unable to ascertain the extent to which the Board may\nhave improperly discussed the contents of the book.\nThe Board also explained that:\nBoard members confirmed with the administration\n\nthat there was\n\nan intent to reinforce with all teachers the need to follow the\n\nappropriate curriculum approval process. There was some\nconversation\n\nin closed session between administrators\n\nand board\n\nmembers about the parental complaints which lead to the discovery\nof failure of the teachers to follow district curriculum\n\napproval\n\nprotocol by way of background to address the personnel matter.\nThe administration explained that, going forward, teachers would\nbe required to submit recommended\n\ncurriculum to the Department\n\nChair to have curriculum and books approved.\n\nAt that stage in the\n\nprocess, the teachers are allowed to provide their reasoning for the\nrecommended materials and then the Department Chair makes a\nrecommendation to the administration for consideration and\napproval. (Emphasis added.)[\"\n\nThis portion of the Board's discussion clearly exceeded the scope of the section 2(c)(1) exception\n\nby straying from a discussion of specific employees to broader matters involving all teachers and\ncurriculum\n\npolicy.\n\nTo remedy its improper discussion of matters in closed session, this office\n\nrequests that the Board vote to make publicly available this portion of its closed session minutes\nfrom its April 20, 2022, meeting. This office also cautions the Board to limit its closed session\nE- mail from Jay Greening,\n\nMiller, Hall &\n\nTriggs, LLC, to [ Steven] Silverman (May 27,\n\ndiscussion to the scope of the exceptions that it cites to close portions of its meetings in the\nfuture. Additionally, this office cautions the Board that it must make and keep verbatim\nrecordings of all of its closed sessions, as well as closed session minutes that sufficiently\nsummarize\n\nits \" discussion\n\n120/ 2. 06(a)(3) (on\n\nall matters\n\nproposed, deliberated,\n\nor\n\ndecided[.]\"\n\n5 ILCS\n\nWest 2021 Supp.).\nFinal Action\n\nSection\ntaken at a closed\n\n2(e) of OMA12 provides,\n\nmeeting.\"\n\nin pertinent part, that \"[\n\nn] o final action may be\nWhile a public body may take a preliminary vote in a closed session,\n\nall final actions must be taken in an open meeting. Board ofEducation of Springfield School\nDistrict No. 186 v. Attorney General ofIllinois, 2017 IL 120343, 173-74, 77 N.E. 3d 625, 637\n2017).\n\nIn its response\n\nto this office, the Board's attorney\n\nstated that: \"\n\nContrary to the\n\nallegations raised in the Request to Review, at no time did the Board vote to ban the book Hey\nKiddo from the school or the assignment. Board members also did not decide to ban the book\nfrom the school or the assignment\n\nboard meeting. i13\n\nThe Board's attorney claimed\nt] he administration decided, before the board meeting, that families that had concerns\nabout the book would be allowed to substitute a different book for the assignment if they\noutside\n\nthe\n\nthat \"[\n\nchose. i14 The Board's attorney further claimed that \" a letter explaining the resolution of the\nissue to all of the parents of students in the classes that had selected the Hey, Kiddo book * * *\nwas\n\nsent at\n\n3: 30 p. m. on April 22, 2022 — hours before the meeting. i 15 The Board enclosed a\n\ncopy of this e- mail, which indeed was sent at 3: 30 p. m. on April 22, 2022, and advised that\n\nstudents could select a book other than Hey, Kiddo to complete the assignment. l6\nThe Board's attorney misstated the timeline here. The Board meeting was held on\nApril 20, 2022, not April 22, 2022; the e- mail to parents was sent out after the Board meeting.\n\n125 ILCS 120/ 2(e) (West 2021 Supp.).\n13E- mail from Jay Greening, Miller, Hall & Triggs, LLC, to [ Steven] Silverman (May 27,\n2022).\n\n14E- mail from Jay Greening, Miller, Hall & Triggs, LLC, to [ Steven] Silverman (May 27,\n2022).\n\nIn her reply, Ms. Fee contended that it was difficult to discern whether final action\nwas\n\ntaken.\n\nShe stated: \"\n\nThe board has no audio evidence from the closed session to support\n\ntheir claim, due to the timing of the recording device 'failure' as well as the convenient absence\n\nof the content from the secondary recording device.\" 17 Ms. Fee attached a document to her reply\nlabeled \" FOIA Book Decision — Emails,\"\n\nwhich consists of a compilation of a -mails involving\n\nDistrict personnel. In one e- mail to several teachers on April 21, 2022, Dunlap High School\nPrincipal\n\nDr. Scott Adreon\n\npassed\n\nSuperintendent of Curriculum,\nBoard meeting.\"\n\nalong\n\na \" message * * *\n\nInstruction, &\n\nfrom Matt Andrews[,]\"\n\nHuman Resources, \"\n\nAssistant\n\nresulting from last night's\n\n1 s In this message, Mr. Andrews mentioned parental concerns about Hey, Kiddo\n\nand another book, then directed that \" neither book is to be used moving forward. i19 He also\nspecified a new procedure that teachers must follow to obtain approval for any new texts. In\nanother e- mail on April 22, 2022, Dr. Adreon responded to a parent's April 19, 2022, e- mail\ncomplaint\n\nabout\n\nHey, Kiddo, by advising: \" we are currently working through the process of\n\npulling a couple of books out of our curriculum, Hey Kiddo is one of them. i20 Ms. Fee alleged\nthat \" processes/ policies were revised as part of the resolution of this matter. i21\nThe April 20, 2022, closed session minutes do not state that the Board decided to\n\nban the book Hey, Kiddo. Dr. Adreon's April 21, 2022, e- mail to teachers, however, reflects that\n\nDistrict administrators ended the District's use of the book as a result of the Board meeting. The\nclosed session minutes do document that the Board unanimously agreed on a new procedure\nrelated to curriculum in closed session and issued a directive to the Board to implement it.\n\nAdditionally, the communications this office reviewed from before and after the meeting suggest\nthat the Board decided on and began to implement such a change during the closed session\nwithout following up with action on that change in open session. When a public body finalizes\naction such as a policy change, that final action must be taken openly. See Howe v. Retirement\nBoard of Firemen's Annuity & Benefit Fund of Chicago, 2013 IL App (1st) 122446, ¶ 26, 996\nN. E. 2d 664, 974- 75 (2013) (finding board's written denial of benefits invalid because the board\n\nhad circulated the decision for signatures privately rather than voting on it in open session).\nE- mail from Stacia Fee to [ Steven] Silverman (June 21, 2022) (referencing the Board's assertion\nthat after the recording device failed, the Board Secretary used her personal phone to record the discussion, but her\nphone failed too before the discussion in question).\n\n18E- mail from Scott Adreon, Ed. D, Principal, Dunlap High School, to Leah Aeschliman, Julia\nMackel, and Davina Frazier (April 21, 2022).\n\n19 Message from Matt [ Andrews] to [ unspecified] (undated).\n\nE- mail from Scott Adreon, Ed. D, Principal, Dunlap High School, to Julia Ekstrom and Matt\nAndrews (April 22, 2022).\nE- mail from Stacia Fee to [ Steven]\n\nSilverman (June 21, 2022).\n\nAccordingly, if it has not already done so, the Board should vote on any curriculum and policy changes it has directed in connection with the April 20, 2022, meeting at a properly noticed open meeting under an agenda item that reasonably describes the general subject matter of that final action. See 5 ILCS 120/2.02(c) (West 2020).\n\nThe Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at katherine.goldsmith@ilag.gov.\n\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n\ncc: Via electronic mail\nThe Honorable Abby Humbles\nPresident, Board of Education\nDunlap Community School District No. 323\n400 South Fourth Street\nDunlap, Illinois 61525\nahumbles@dunlapcusd.net"}
{"id":1386,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-09-20","case_number":null,"request_numbers":["71528"],"title":"Veterans Assistance Commission of Will County not required to post agendas online without web staff","filename":"71528, issued September 20, 2022__1.pdf","rel_path":null,"word_count":2167,"summary":"The requester alleged that the Veterans Assistance Commission of Will County violated the Open Meetings Act by failing to post meeting agendas and minutes on its website. The PAC determined that because the Commission does not employ a full-time staff member responsible for website maintenance, it is not required to post these documents online.","plain_summary":"A citizen complained that a local Veterans Assistance Commission wasn't posting its meeting agendas and minutes online as required by law. The Attorney General's office investigated and found that the law only requires this if the agency has a full-time employee responsible for the website. Since this Commission does not have such an employee, they are not in violation of the law.","holding":"The Commission did not violate the Open Meetings Act because it is not required to post agendas or minutes on its website as it lacks a full-time staff member dedicated to website maintenance.","legal_question":"Whether the Veterans Assistance Commission of Will County is required to post meeting agendas and minutes on its website under the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Veterans Assistance Commission of Will County","requesting_party":"Mr. Lee Kerr","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requirement for public bodies to post meeting agendas and minutes on their websites.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_b/71528, issued September 20, 2022.pdf","sha256":"9dc075e2651bd515809a8736ee14f9baea5edf7fafdde2fbe7eec0f76ef7090c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","meeting minutes","website posting","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\nVia electronic\n\n20, 2022\n\nmail\n\nMr. Lee Kerr\nwilltransparency@outlook. com\nVia electronic mail\nMs. Jennifer\nAssistant\n\nSolum\n\nSuperintendent\n\nVeterans Assistance Commission of Will County\n2400 Glenwood\n\nAvenue, Suite 110\n\n[street address redacted for site publication -- see original PDF]\njsolum@willcountyillinois. com\nOMA Request for Review — 2022 PAC 71528\n\nRE:\n\nDear Mr. Kerr and Ms. Solum:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2020)).\nOn April 28, 2022, the Public Access Bureau received Mr. Lee Kerr' s Request for\n\nReview alleging that the Veterans Assistance Commission ( Commission) of Will County\n\nCounty) violated OMA by failing to post meeting agendas and minutes on its website. l Mr.\nKerr\n\nalso\n\nasserted\n\nthat the\n\nCommission,\n\nor\n\nthe\n\nCommission' s Executive\n\nBoard ( Board), held a\n\nmeeting on March 30, 2022, during which the resignation of the Commission's superintendent\nwas\neven\n\naccepted\n\nand an interim\n\ndate, for this meeting\n\nsuperintendent\n\nwas\n\nposted.\n\nwas\n\nappointed.\n\nHe alleged that \"[ n] o agenda, or\n\ni2\n\nThe Public Access Bureau' s review of this allegation is limited to the agendas and minutes from\nmeetings that occurred within 60 days of April 28, 2022, the date this office received his Request for Review,\n\nbecause Mr. Kerr did not provide any information to establish that a person utilizing reasonable diligence could not\nhave discovered the alleged violations within the 60- day statutory deadline for any earlier meetings.\n\nSee 5 ILCS\n\n120/ 3. 5( a) ( West 2020).\n\n2OMA —Request for Review by Public Access Counselor ( PAC) form completed by Lee Kerr\nApril\n\n3, 2022).\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South\n\nUniversity Ave., Carbondale,\n\nIllinois 62901 • (\n\n618) 529- 6400 •\n\nTTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fr.Lee Kerr\nMs. Jennifer\n\nSolum\n\nSeptember 20, 2022\nPage 2\n\nOn May 5, 2022, this office sent a copy of the Request for Review to the\nCommission and asked it to provide a written response to those allegations, including\n\nclarification about whether the Commission held a meeting on March 30, 2022, and, if so, to\nspecify if, when, and where notice was posted and whether it took minutes, and allowed the\npublic to attend and participate in that meeting. This office also requested that the Commission\n\nclarify whether its website is maintained by a full-time Commission staff member. On May 9,\n2022, the Commission provided a written answer together with copies of the agenda and the\nmeeting minutes for the Board' s March 30, 2022, special meeting. On May 12, 2022, this office\n\nforwarded a copy of the Commission' s written answer to Mr. Kerr; he replied on May 20, 2022. 3\nOn August 2, 2022, an Assistant Attorney General ( AAG) in the Public Access Bureau spoke\nwith Ms. Jennifer Solum, Assistant Superintendent for the Commission, to clarify certain aspects\nof the Commission' s response to this office.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989). Section 1. 02 of OMA ( 5\nopenly.\"\nILCS 120/ 1. 02 ( West 2020)) defines \" public body\" as including:\n\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees\n\nand subcommittees\n\nwhich are supported\n\nin whole or in\n\npart by tax revenue, or which expend tax revenue[.]\n\nThe Commission is a \" separate County Governmental Agencyi4 that was created pursuant to\nsection\n\n2 of the\n\nMilitary Veterans\n\nAssistance\n\nAct.\n\n330 ILCS 45/ 2 ( West 2020).\n\nTherefore,\n\nthe\n\nCommission meets the definition of a \" public body\" as defined by section 1. 02 of OMA.\n3In his reply, Mr. Kerr raises additional alleged OMA violations. However, because those\nallegations were not raised in the Request for Review, they are outside the scope of this determination.\n4Will County Illinois, Veterans Assistance Commission,\nhttps:// www. willcountyillinois. com/ County- Offices/ Special- Services/ Veterans- Assistance- Commission ( last visited\nJuly 7, 2022).\n\n\fr.Lee Kerr\nMs. Jennifer\nSeptember\n\nSolum\n\n20, 2022\n\nPage 3\n\nAlleged Violations of Meeting Requirements\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 ( West 2020). To that end,\nOMA provides for advance notice of meetings,'\nthe right of the public to attend all meetings\n\nwhere public business is discussed or acted upon, 6 and an opportunity for members of the public\nto address public officials during open meetings.'\nThe Commission' s response to this office confirmed that the Board held a special\n\nmeeting on March 30, 2022, but asserted that the agenda for this meeting was properly posted on\nthe announcement board in the building that is the Commission' s principal office and meeting\nlocation. The Commission also indicated that the agenda was available for the public to view for\nat least 48 hours before the meeting. The Commission further stated that \"[ t]he public was\nallowed to attend and participate in the meeting. i8\n\nThe Commission provided this office with\n\ncopies of the Board' s agenda and minutes for the March 30, 2022, special meeting, which show\n\nthat the meeting was held in -person, and included a Zoom link to permit remote participation.\nMr. Kerr has not stated that he was unable to view the agenda on the Commission' s\n\nannouncement board or that he attempted to attend the special meeting, either in person or\nremotely,\n\nbut was unable\n\nexecutive\n\norder\n\nto so.\n\nAlthough\n\nMr. Kerr asserted that \"[\n\nallowing completely remote\n\nmeetings\n\nt] he disaster proclamation and\n\nhas long since expired[,] i9 a disaster\n\nproclamation authorizing the Board to meet remotely10 was in effect at the time of the March 30,\n\nSection 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2020) requires an agenda for each regular\n\nmeeting to be posted at the principal office of the public body and at the location where the meeting is to be held at\nleast 48 hours in advance of the holding of the meeting.\nSection 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2020), as amended by Public Act 102- 558,\n\neffective August 20, 2021; 102- 237, effective January 1, 2022; 102- 813, effective May 13, 2022) provides that \"[ a] 11\nmeetings of public bodies shall be open to the public unless excepted in subsection ( c) and closed in accordance with\nSection\n\n2a.\"\n\n5 ILCS 120/ 2. 06( g) ( West 2020), as amended by Public Act 102- 653, effective January 1, 2022,\nprovides that \"[ a] ny person shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nLetter from Jennifer Solum, Assistant Superintendent, Veterans Assistance Commission of Will\n\nCounty, to Shannon Barnaby Assistant Attorney General, Public Access Bureau, Office of the Attorney General,\nState of Illinois (May 9, 2022).\n9OMA — Request for Review by Public Access Counselor ( PAC) form completed\nApril 3, 2022).\n1°\n\nSee 5 ILCS\n\n120/ 7( e)( 1) (\n\nWest 2020).\n\nby Lee Kerr\n\n\fr.Lee Kerr\nMs. Jennifer\n\nSolum\n\nSeptember 20, 2022\nPage 4\n\n2022, meeting.\"\n\nTherefore, the available information does not include facts from which this\n\noffice can conclude that the Board violated sections 2( a) or 2. 02( a) of OMA in connection with\n\nits March 30, 2022, special meeting.\nBased on this office' s review of the agenda of Board' s March 30, 2022, special\n\nmeeting, public comment was not listed on the agenda. Section 2. 06( g) of OMA ( 5 ILCS\n120/ 2. 06( g) ( West 2021 Supp.)) requires a public body to permit members of the public to\n\naddress its members at all meetings, including special meetings, during a designated time period.\nThe Public Access Bureau has previously determined that section 2. 06( g) of OMA does not\n\nrequire a public body to list public comment on a meeting agenda in order for members of the\npublic to be able to address the members of the public body during that meeting. Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 26020, issued April 14, 2014, at 2. A better practice, however, would be for\nthe Board to list public comment as an agenda item ( with the timing in accordance with its\nestablished and recorded rules governing public comment), or, at least, to invite public comment\nduring open meetings even if public comment is not listed as an agenda item.\nPosting of Agendas and Minutes on Website\n\nSection 2. 02( a) of OMA requires an agenda for each regular meeting to be posted\nat the principal office of the public body and at the location where the meeting is to be held at\nleast 48 hours in advance of the holding of the meeting, and further provides: \" A public body\nthat has a website that the full- time staff of the public body maintains shall also post on its\nwebsite the agenda of any regular meetings of the governing\nbody of that public body.\" Section\n\n2. 02( b) of OMA12 adds that \" a public body that has a website that the full-time staff of the public\nbody maintains shall post notice on its website of all meetings of the governing body of the\npublic body.\"\nIn its response to this office, the Commission\n\nindicated that its website is not\n\ncurrently maintained by a full-time staff member. Further, the Commission confirmed that\nagendas and approved meeting minutes are posted and made publicly available for review at the\noffice of the [ Commission]\"\nand stated that it \"gave Public Notice of the schedule of regular\n\nGubernatorial\nissued March\n\nDisaster Proclamation,\n\n4, 2020.\n\n125 ILCS 120/ 2. 02( b) ( West 2020).\n\nissued March 4, 2022; Executive\n\nOrder No. 2020- 07,\n\n\fr.Lee Kerr\n\nMs. Jennifer Solum\nSeptember 20, 2022\nPage 5\n\nmeetings at the beginning of the year that states the regular dates, times, and place of\nmeetings. i 13\n\nMr. Kerr' s reply disputes the Commission' s statement that its website is not\ncurrently maintained by a full- time staff member. He appears to argue that because the\nCommission has full- time employees, and because the website has been updated since he\nsubmitted his Request for Review, a full- time Commission\n\ninclude website maintenance.\n\nstaff member' s responsibilities\n\nmust\n\nIn the August 2, 2022, telephone conversation, Ms. Solum\n\nexplained to this office that at the time of the meeting in question, information concerning the\nCommission was hosted on the County' s website. She stated that employees of the County' s\nCounty' s website— not any employee of the\nand that the Commission was required to submit a request to the County' s IT\ndepartment to update Commission information on the County' s website. As noted above, the\nCommission is a separate agency from the County. See 330 ILCS 45/ 10 ( West 2020) (\" The\ninformation\n\ntechnology ( IT) department maintain\n\nthe\n\nCommission —\n\nsuperintendent and other employees shall be employees of the Veterans Assistance Commission,\n\nand no provision in this Section or elsewhere in this Act shall be construed to mean that they are\nemployees\nof the county.\"). Accordingly, County IT staff are not employees of the Commission.\nBecause the Commission does not employ a full- time staff member whose responsibilities\n\ninclude maintaining its website, the Commission was not required to post its agendas or meeting\nminutes to the Commission' s website.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, my e- mail address is\nShannon.Barnaby@ilag.gov. This matter is closed.\nVery truly yours,\ncv \\ 1 -\n\nDGLtvv`\n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n71528 o no vio co\n\nLetter from Jennifer Solum, Assistant Superintendent, Veterans Assistance Commission of Will\n\nCounty, to Shannon Barnaby Assistant Attorney General, Public Access Bureau, Office of the Attorney General,\nState of Illinois ( May 9, 2022).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Website posting of meeting agendas and minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71528/","full_text":"FFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\nVia electronic\n\n20, 2022\n\nmail\n\nMr. Lee Kerr\nwilltransparency@outlook. com\nVia electronic mail\nMs. Jennifer\nAssistant\n\nSolum\n\nSuperintendent\n\nVeterans Assistance Commission of Will County\n2400 Glenwood\n\nAvenue, Suite 110\n\n[street address redacted for site publication -- see original PDF]\njsolum@willcountyillinois. com\nOMA Request for Review — 2022 PAC 71528\n\nRE:\n\nDear Mr. Kerr and Ms. Solum:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2020)).\nOn April 28, 2022, the Public Access Bureau received Mr. Lee Kerr's Request for\n\nReview alleging that the Veterans Assistance Commission (Commission) of Will County\n\nCounty) violated OMA by failing to post meeting agendas and minutes on its website. l Mr.\nKerr\n\nalso\n\nasserted\n\nthat the\n\nCommission,\n\nor\n\nthe\n\nCommission's Executive\n\nBoard (Board), held a\n\nmeeting on March 30, 2022, during which the resignation of the Commission's superintendent\nwas\neven\n\naccepted\n\nand an interim\n\ndate, for this meeting\n\nsuperintendent\n\nwas\n\nposted.\n\nwas\n\nappointed.\n\nHe alleged that \"[ n] o agenda, or\n\ni2\n\nThe Public Access Bureau's review of this allegation is limited to the agendas and minutes from\nmeetings that occurred within 60 days of April 28, 2022, the date this office received his Request for Review,\n\nbecause Mr. Kerr did not provide any information to establish that a person utilizing reasonable diligence could not\nhave discovered the alleged violations within the 60- day statutory deadline for any earlier meetings.\n\nSee 5 ILCS\n\n120/ 3. 5(a) (West 2020).\n\n2OMA —Request for Review by Public Access Counselor (PAC) form completed by Lee Kerr\nApril\n\n3, 2022).\n\nOn May 5, 2022, this office sent a copy of the Request for Review to the\nCommission and asked it to provide a written response to those allegations, including\n\nclarification about whether the Commission held a meeting on March 30, 2022, and, if so, to\nspecify if, when, and where notice was posted and whether it took minutes, and allowed the\npublic to attend and participate in that meeting. This office also requested that the Commission\n\nclarify whether its website is maintained by a full-time Commission staff member. On May 9,\n2022, the Commission provided a written answer together with copies of the agenda and the\nmeeting minutes for the Board's March 30, 2022, special meeting. On May 12, 2022, this office\n\nforwarded a copy of the Commission's written answer to Mr. Kerr; he replied on May 20, 2022. 3\nOn August 2, 2022, an Assistant Attorney General (AAG) in the Public Access Bureau spoke\nwith Ms. Jennifer Solum, Assistant Superintendent for the Commission, to clarify certain aspects\nof the Commission's response to this office.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989). Section 1. 02 of OMA (5\nopenly.\"\nILCS 120/ 1. 02 (West 2020)) defines \" public body\" as including:\n\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees\n\nand subcommittees\n\nwhich are supported\n\nin whole or in\n\npart by tax revenue, or which expend tax revenue[.]\n\nThe Commission is a \" separate County Governmental Agencyi4 that was created pursuant to\nsection\n\n2 of the\n\nMilitary Veterans\n\nAssistance\n\nAct.\n\n330 ILCS 45/ 2 (West 2020).\n\nTherefore,\n\nthe\n\nCommission meets the definition of a \" public body\" as defined by section 1. 02 of OMA.\n3 In his reply, Mr. Kerr raises additional alleged OMA violations. However, because those\nallegations were not raised in the Request for Review, they are outside the scope of this determination.\n4 Will County Illinois, Veterans Assistance Commission,\nhttps:// www. willcountyillinois. com/ County- Offices/ Special- Services/ Veterans- Assistance- Commission (last visited\nJuly 7, 2022).\n\nr.Lee Kerr\nMs. Jennifer\nSeptember\n\nSolum\n\nAlleged Violations of Meeting Requirements\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2020). To that end,\nOMA provides for advance notice of meetings,'\nthe right of the public to attend all meetings\n\nwhere public business is discussed or acted upon, 6 and an opportunity for members of the public\nto address public officials during open meetings.'\nThe Commission's response to this office confirmed that the Board held a special\n\nmeeting on March 30, 2022, but asserted that the agenda for this meeting was properly posted on\nthe announcement board in the building that is the Commission's principal office and meeting\nlocation. The Commission also indicated that the agenda was available for the public to view for\nat least 48 hours before the meeting. The Commission further stated that \"[ t]he public was\nallowed to attend and participate in the meeting. i8\n\nThe Commission provided this office with\n\ncopies of the Board's agenda and minutes for the March 30, 2022, special meeting, which show\n\nthat the meeting was held in -person, and included a Zoom link to permit remote participation.\nMr. Kerr has not stated that he was unable to view the agenda on the Commission's\n\nannouncement board or that he attempted to attend the special meeting, either in person or\nremotely,\n\nbut was unable\n\nexecutive\n\norder\n\nto so.\n\nAlthough\n\nMr. Kerr asserted that \"[\n\nallowing completely remote\n\nmeetings\n\nt] he disaster proclamation and\n\nhas long since expired[,] i9 a disaster\n\nproclamation authorizing the Board to meet remotely10 was in effect at the time of the March 30,\n\nSection 2. 02(a) of OMA (5 ILCS 120/ 2. 02(a) (West 2020) requires an agenda for each regular\n\nmeeting to be posted at the principal office of the public body and at the location where the meeting is to be held at\nleast 48 hours in advance of the holding of the meeting.\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2020), as amended by Public Act 102- 558,\n\neffective August 20, 2021; 102- 237, effective January 1, 2022; 102- 813, effective May 13, 2022) provides that \"[ a] 11\nmeetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with\nSection\n\n2a.\"\n\n5 ILCS 120/ 2. 06(g) (West 2020), as amended by Public Act 102- 653, effective January 1, 2022,\nprovides that \"[ a] ny person shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nLetter from Jennifer Solum, Assistant Superintendent, Veterans Assistance Commission of Will\n\nCounty, to Shannon Barnaby Assistant Attorney General, Public Access Bureau, Office of the Attorney General,\nState of Illinois (May 9, 2022).\n9OMA — Request for Review by Public Access Counselor (PAC) form completed\nApril 3, 2022).\n1°\n\n2022, meeting.\"\n\nTherefore, the available information does not include facts from which this\n\noffice can conclude that the Board violated sections 2(a) or 2. 02(a) of OMA in connection with\n\nits March 30, 2022, special meeting.\nBased on this office's review of the agenda of Board's March 30, 2022, special\n\nmeeting, public comment was not listed on the agenda. Section 2. 06(g) of OMA (5 ILCS\n120/ 2. 06(g) (West 2021 Supp.)) requires a public body to permit members of the public to\n\naddress its members at all meetings, including special meetings, during a designated time period.\nThe Public Access Bureau has previously determined that section 2. 06(g) of OMA does not\n\nrequire a public body to list public comment on a meeting agenda in order for members of the\npublic to be able to address the members of the public body during that meeting. Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 26020, issued April 14, 2014, at 2. A better practice, however, would be for\nthe Board to list public comment as an agenda item (with the timing in accordance with its\nestablished and recorded rules governing public comment), or, at least, to invite public comment\nduring open meetings even if public comment is not listed as an agenda item.\nPosting of Agendas and Minutes on Website\n\nSection 2. 02(a) of OMA requires an agenda for each regular meeting to be posted\nat the principal office of the public body and at the location where the meeting is to be held at\nleast 48 hours in advance of the holding of the meeting, and further provides: \" A public body\nthat has a website that the full- time staff of the public body maintains shall also post on its\nwebsite the agenda of any regular meetings of the governing\nbody of that public body.\" Section\n\n2. 02(b) of OMA12 adds that \" a public body that has a website that the full-time staff of the public\nbody maintains shall post notice on its website of all meetings of the governing body of the\npublic body.\"\nIn its response to this office, the Commission\n\nindicated that its website is not\n\ncurrently maintained by a full-time staff member. Further, the Commission confirmed that\nagendas and approved meeting minutes are posted and made publicly available for review at the\noffice of the [ Commission]\"\nand stated that it \"gave Public Notice of the schedule of regular\n\nGubernatorial\nissued March\n\nDisaster Proclamation,\n\nmeetings at the beginning of the year that states the regular dates, times, and place of\nmeetings. i 13\n\nMr. Kerr's reply disputes the Commission's statement that its website is not\ncurrently maintained by a full- time staff member. He appears to argue that because the\nCommission has full- time employees, and because the website has been updated since he\nsubmitted his Request for Review, a full- time Commission\n\ninclude website maintenance.\n\nstaff member's responsibilities\n\nmust\n\nIn the August 2, 2022, telephone conversation, Ms. Solum\n\nexplained to this office that at the time of the meeting in question, information concerning the\nCommission was hosted on the County's website. She stated that employees of the County's\nCounty's website— not any employee of the\nand that the Commission was required to submit a request to the County's IT\ndepartment to update Commission information on the County's website. As noted above, the\nCommission is a separate agency from the County. See 330 ILCS 45/ 10 (West 2020) (\" The\ninformation\n\ntechnology (IT) department maintain\n\nthe\n\nCommission —\n\nsuperintendent and other employees shall be employees of the Veterans Assistance Commission,\n\nand no provision in this Section or elsewhere in this Act shall be construed to mean that they are\nemployees\nof the county.\"). Accordingly, County IT staff are not employees of the Commission.\nBecause the Commission does not employ a full- time staff member whose responsibilities\n\ninclude maintaining its website, the Commission was not required to post its agendas or meeting\nminutes to the Commission's website.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, my e- mail address is\nShannon.Barnaby@ilag.gov. This matter is closed.\nVery truly yours,\ncv \\ 1 -\n\nDGLtvv`\n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n71528 o no vio co\n\nLetter from Jennifer Solum, Assistant Superintendent, Veterans Assistance Commission of Will\n\nCounty, to Shannon Barnaby Assistant Attorney General, Public Access Bureau, Office of the Attorney General,\nState of Illinois (May 9, 2022)."}
{"id":1387,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-11-09","case_number":null,"request_numbers":["72122"],"title":"PAC dismisses complaint against WIU Board as untimely, does not rule on recording destruction issue","filename":"72122, issued November 9, 2021.pdf","rel_path":null,"word_count":1118,"summary":"The requester alleged that Western Illinois University violated the Open Meetings Act by destroying verbatim recordings of closed sessions before the minutes of those sessions were released to the public. The PAC determined that the University complied with the law because OMA only requires the approval of minutes, not their public release, prior to the destruction of recordings.","plain_summary":"A complainant alleged that a university violated the Open Meetings Act by destroying verbatim recordings of past closed sessions before releasing the minutes from those sessions to the public. The PAC dismissed the complaint as untimely because it was filed more than 60 days after discovering the alleged violation and more than two years after the recordings were destroyed, and did not rule on the merits. The PAC noted, for informational purposes, that the Act requires only board approval of destruction and of the closed-session minutes - not public release of those minutes - before a recording may be destroyed.","holding":"The PAC declined to reach the merits of the alleged violation because the request for review was untimely under section 3.5(a) of the Open Meetings Act.","legal_question":"Does section 2.06(c) of the Open Meetings Act require a public body to release closed session minutes to the public before it may destroy the verbatim recording of that meeting?","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of Western Illinois University","requesting_party":"Mr. William Thompson","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The destruction of verbatim recordings of closed session meetings by a university board of trustees.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/Reasonable-diligence-if-did-not-discover-violation-within-60-days/72122, issued November 9, 2021.pdf","sha256":"2667771710b94abf145dffbdf54369e28864ccf931413ae0b8f18d2e548b69e2","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","verbatim recording","meeting minutes","destruction of records"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 9, 2021\n\nVia electronic mail\nMr. William Thompson\nUPI @ WIU Chapter Secretary\n\nRE: OMA Request for Review – 2021- PAC- C-0480\nDear Mr. Thompson:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons that follow, this office concludes that\nyour Request for Review is unfounded.\nOn June 20, 2021, you e-mailed a Request for Review 1 to this office alleging that\nthe Board of Trustees ( Board) of Western Illinois University ( University) violated the\nrequirements of OMA by destroying closed session verbatim recordings before releasing the\nminutes from those closed sessions. Specifically, you stated that you obtained copies of certain\nclosed session minutes from 2015 and 2016 that the Board voted to release on March 26, 2021.\nYou alleged that \"[ u] pon review of the minutes, I noted that the previous Board had several times\nviolated [ OMA] in those years by discussing layoffs in closed session.\" 2 You alleged that these\nimproper closed session discussions occurred on December 17, 2015, January 25, 2016, March\n10, 2016, April 20, 2016, and June 9, 2016. You also alleged that \" the current Board knowingly\nordered the destruction of the verbatim recordings of these meetings[,]\" which you contend\nviolates OMA because verbatim recordings \" are not allowed to be destroyed until the closed\nsession minutes are approved and released[.]\" 3 ( Emphasis in original.) You argue that the Board\n\n1Due to a breach of the Attorney General' s computer network, this office did not receive your\nRequest for Review at or near the time you submitted it.\n2Letter from William A. Thompson to Public Access Counselor ( June 20, 2021), at 1.\n3Letter from William A. Thompson to Public Access Counselor ( June 20, 2021), at 1.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. William Thompson\nNovember 9, 2021\nPage 2\n\nshould not have approved the destruction of the recordings because they contained discussion\nthat should have been released to the public.\nOn November 5, 2021, in response to an inquiry from this office, Elizabeth\nDuvall, General Counsel for the University, clarified when the Board approved the destruction of\nthe verbatim recordings at issue. Ms. Duvall provided copies of Board meeting minutes to\nestablish that on June 9, 2017, the Board approved the destruction of the verbatim recordings for\nthe meetings held on December 17, 2015, January 25, 2016, and March 10, 2016, and on\nSeptember 29, 2017, it approved the destruction of the verbatim recordings for the meetings held\non April 20, 2016, and June 9, 2016. Ms. Duvall did not have records or knowledge of exactly\nwhen the verbatim recordings were destroyed, as the destruction occurred before her July 9,\n2018, start date at the University. She noted that the former secretary informed her that if the\nBoard voted to approve the destruction of the verbatim recordings during a meeting that occurred\nfewer than 18 months after the meetings at issue, the former secretary stated that she would wait\nto shred the disc containing the recordings until 18 months had passed.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) ( West 2020)) provides, in pertinent\npart:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation.\nUnder the plain language of section 3.5(a), a person must submit a Request for\nReview within 60 days after an alleged violation unless the person did not discover facts\nconcerning the alleged violation within those 60 days despite utilizing reasonable diligence. You\nacknowledge that you made your request \" more than sixty days after the release of the [ 2015 and\n2016] closed session minutes\" and you have not established that you did not discover the alleged\nviolation within 60-day period despite using reasonable diligence. Moreover, even if you had\nexercised reasonable diligence, the Board destroyed the verbatim recordings at issue more than\ntwo years before you submitted your Request for Review. Because an individual may not submit\na Request for Review more than 2 years after the alleged violation, this office will take no further\naction in this matter.\n\n\fr.William Thompson\nNovember 9, 2021\nPage 3\n\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a),\nb), (c) ( West 2020). This office notes that section 2.06(c) of OMA (5 ILCS 120/ 2.06(c) (West\n2020)) states:\nc) The verbatim record may be destroyed without notification to\nor the approval of a records commission or the State Archivist\nunder the Local Records Act or the State Records Act no less than\n18 months after the completion of the meeting recorded but only\nafter:\n1) the public body approves the destruction of a particular\nrecording; and\n2) the public body approves minutes of the closed meeting\nthat meet the written minutes requirements of subsection ( a) of this\nSection.\nThe plain language of section 2.06(c) requires that prior to destruction of a closed session\nverbatim recording, a public body must vote to approve destruction of the recording and vote to\napprove the written minutes of that closed session. Neither section 2.06(c), nor any other section\nof OMA, requires that a public body vote to release to the public the minutes of a closed session\nmeeting before approving the destruction of that meeting' s verbatim recording.\nThis letter serves to close this file. If you have questions, please contact me at\nlaura.harter@ilag. gov or the Springfield address on the bottom of the first page of this letter.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\nC-0480 o 60 days univ\ncc:\n\nVia electronic mail\nMs. Elizabeth Duvall\nWestern Illinois University\nGeneral Counsel\nFreedom of Information Act Officer\nel-duvall@wiu. edu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester complained that a university destroyed audio recordings of closed-door meetings before the minutes of those meetings were made public. The Attorney General's office dismissed the request as unfounded because it was filed more than 60 days after the alleged violation and more than two years after the destruction occurred, making it untimely under the Open Meetings Act. The office did not decide whether the destruction itself violated the law, but noted that the statute does not require the minutes to be released to the public before destroying recordings.","card_headline":"Destruction of closed-session recordings by a university board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72122/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 9, 2021\n\nVia electronic mail\nMr. William Thompson\nUPI @ WIU Chapter Secretary\n\nRE: OMA Request for Review – 2021- PAC- C-0480\nDear Mr. Thompson:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons that follow, this office concludes that\nyour Request for Review is unfounded.\nOn June 20, 2021, you e-mailed a Request for Review 1 to this office alleging that\nthe Board of Trustees (Board) of Western Illinois University (University) violated the\nrequirements of OMA by destroying closed session verbatim recordings before releasing the\nminutes from those closed sessions. Specifically, you stated that you obtained copies of certain\nclosed session minutes from 2015 and 2016 that the Board voted to release on March 26, 2021.\nYou alleged that \"[ u] pon review of the minutes, I noted that the previous Board had several times\nviolated [ OMA] in those years by discussing layoffs in closed session.\" 2 You alleged that these\nimproper closed session discussions occurred on December 17, 2015, January 25, 2016, March\n10, 2016, April 20, 2016, and June 9, 2016. You also alleged that \" the current Board knowingly\nordered the destruction of the verbatim recordings of these meetings[,]\" which you contend\nviolates OMA because verbatim recordings \" are not allowed to be destroyed until the closed\nsession minutes are approved and released[.]\" 3 (Emphasis in original.) You argue that the Board\n\n1 Due to a breach of the Attorney General's computer network, this office did not receive your\nRequest for Review at or near the time you submitted it.\n2 Letter from William A. Thompson to Public Access Counselor (June 20, 2021), at 1.\n3 Letter from William A. Thompson to Public Access Counselor (June 20, 2021), at 1.\n\nshould not have approved the destruction of the recordings because they contained discussion\nthat should have been released to the public.\nOn November 5, 2021, in response to an inquiry from this office, Elizabeth\nDuvall, General Counsel for the University, clarified when the Board approved the destruction of\nthe verbatim recordings at issue. Ms. Duvall provided copies of Board meeting minutes to\nestablish that on June 9, 2017, the Board approved the destruction of the verbatim recordings for\nthe meetings held on December 17, 2015, January 25, 2016, and March 10, 2016, and on\nSeptember 29, 2017, it approved the destruction of the verbatim recordings for the meetings held\non April 20, 2016, and June 9, 2016. Ms. Duvall did not have records or knowledge of exactly\nwhen the verbatim recordings were destroyed, as the destruction occurred before her July 9,\n2018, start date at the University. She noted that the former secretary informed her that if the\nBoard voted to approve the destruction of the verbatim recordings during a meeting that occurred\nfewer than 18 months after the meetings at issue, the former secretary stated that she would wait\nto shred the disc containing the recordings until 18 months had passed.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides, in pertinent\npart:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation.\nUnder the plain language of section 3.5(a), a person must submit a Request for\nReview within 60 days after an alleged violation unless the person did not discover facts\nconcerning the alleged violation within those 60 days despite utilizing reasonable diligence. You\nacknowledge that you made your request \" more than sixty days after the release of the [ 2015 and\n2016] closed session minutes\" and you have not established that you did not discover the alleged\nviolation within 60-day period despite using reasonable diligence. Moreover, even if you had\nexercised reasonable diligence, the Board destroyed the verbatim recordings at issue more than\ntwo years before you submitted your Request for Review. Because an individual may not submit\na Request for Review more than 2 years after the alleged violation, this office will take no further\n\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a),\nb), (c) (West 2020). This office notes that section 2.06(c) of OMA (5 ILCS 120/ 2.06(c) (West\n2020)) states:\nc) The verbatim record may be destroyed without notification to\nor the approval of a records commission or the State Archivist\nunder the Local Records Act or the State Records Act no less than\n18 months after the completion of the meeting recorded but only\nafter:\n1) the public body approves the destruction of a particular\nrecording; and\n2) the public body approves minutes of the closed meeting\nthat meet the written minutes requirements of subsection (a) of this\nSection.\nThe plain language of section 2.06(c) requires that prior to destruction of a closed session\nverbatim recording, a public body must vote to approve destruction of the recording and vote to\napprove the written minutes of that closed session. Neither section 2.06(c), nor any other section\nof OMA, requires that a public body vote to release to the public the minutes of a closed session\nmeeting before approving the destruction of that meeting's verbatim recording.\nThis letter serves to close this file. If you have questions, please contact me at\nlaura.harter@ilag. gov or the Springfield address on the bottom of the first page of this letter.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\nC-0480 o 60 days univ\ncc:\n\nVia electronic mail\nMs. Elizabeth Duvall\nWestern Illinois University\nGeneral Counsel\nFreedom of Information Act Officer\nel-duvall@wiu. edu"}
{"id":1388,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-04-14","case_number":null,"request_numbers":["72129"],"title":"Prairie Hill School Board committees failed to post agendas and minutes for committee meetings","filename":"72129, issued April 14, 2022.pdf","rel_path":null,"word_count":3777,"summary":"A requester alleged that the Prairie Hill School District #133 Board of Education improperly entered closed sessions and failed to comply with agenda and minute requirements. The PAC determined the Board violated OMA by discussing topics outside of the cited exceptions and failing to properly conduct semi-annual reviews of closed session minutes.","plain_summary":"A complainant alleged multiple Open Meetings Act violations by a school board and its committees, including improper closed sessions and failures to post committee agendas and minutes. The PAC found most of the closed-session timing allegations untimely, but did find that the board's committees violated OMA by not preparing or posting required agendas and minutes, that the board's generic \"personnel\" citation for one closed session inadequately identified the specific statutory exception, and that portions of that session's discussion of general employee categories exceeded the scope of the personnel exemption. The board was asked to release the affected portions of the closed-session recording and reminded to follow OMA's procedural and posting requirements going forward.","holding":"The Board of Education's committees violated the Open Meetings Act by failing to prepare and post meeting agendas and minutes as required by sections 2.02 and 2.06 of OMA. The allegations regarding improper closed sessions and semi-annual review of closed session minutes were not reviewed due to the 60-day filing deadline or lack of a finding.","legal_question":"Whether the Board of Education violated OMA by discussing topics in closed session that exceeded the scope of the cited exceptions and by failing to conduct required semi-annual reviews of closed session minutes.","disposition":"violation_found","primary_statute":["5 ILCS 120/2","5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Prairie Hill School District #133 Board of Education","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The board improperly discussed topics in closed session and failed to perform mandatory semi-annual reviews of closed session minutes.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_9/72129, issued April 14, 2022.pdf","sha256":"79fba6935831f82162f2868e00740e7f5d82051c9297d52f9e04aaabf8f9532c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","meeting minutes","open meetings act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 14, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Kim Aulenbacher\nPresident, Board of Education\nPrairie Hill School District #133\n6605 Prairie Hill Road\nSouth Beloit, Illinois 61080\naulenbacherk@prairiehill.org\nRE: OMA Request for Review – 2021-PAC-C-0472\nDear\n\nand Ms. Aulenbacher:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Education (Board) of the Prairie Hill School District #133 (School\nDistrict) violated the requirements of OMA.\nBACKGROUND\nOn June 22, 2021,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Board violated section 2(c) of OMA (5 ILCS 120/2(c) (West\n2020)) at its May 25, 2021, February 23, 2021, September 29, 2020, and July 28, 2020, meetings\nby failing to adequately identify its bases for entering closed session and for discussing topics in\nclosed session that did not fall within the scope of the exceptions it publicly recited as the bases\nfor closing those meetings.\nalso alleged that the Board's committees have not\ncomplied with OMA's requirements related to the preparation and posting of meeting agendas\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 2\n\nand minutes, as set forth in sections 2.02 and 2.06 of OMA (5 ILCS 120/2.02 (West 2020); 5\nILCS 120/2.06 (West 2020)). Additionally,\ncontended that the Board had not\nperformed a semi-annual review of its closed session minutes in the past year.\nOn October 20, 2021, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing\nallegations\nregarding the May 25, 2021, meeting, any committee meetings held in May or June 2021, and its\nreview of closed session minutes. This office also asked the Board to provide copies of: (1) the\nBoard's May 25, 2021, meeting agenda, open and closed session minutes, and verbatim recording\nof the closed session; (2) the agendas for any Board committee meetings held in May 2021 and\nJune 2021, with clarification of when and where those agendas were physically posted; and (3)\ncopies of the minutes for those May 2021 and June 2021 committee meetings. On October 29,\n2021, this office received the requested materials, including a complete response for this office's\nconfidential review and a redacted version for this office to forward to\n.1 On\nNovember 2, 2021, this office forwarded a copy of the Board's redacted response to\n;\nhe did not reply.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nFebruary 23, 2021, September 29, 2020, and July 28, 2020 Meetings\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides:\nA person who believes that a violation of this Act by a public body\nhas occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General not\nlater than 60 days after the alleged violation. If facts concerning\nthe violation are not discovered within the 60-day period, but are\ndiscovered at a later date, not exceeding 2 years after the alleged\nviolation, by a person utilizing reasonable diligence, the request\n1\n\nSee 5 ILCS 120/3.5(c) (West 2020) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 3\n\nfor review may be made within 60 days of the discovery of the\nalleged violation. (Emphasis added.)\nUnder the plain language of section 3.5(a), a person must submit a Request for Review within 60\ndays after an alleged violation occurred unless the person did not discover facts concerning the\nalleged violation within those 60 days despite utilizing reasonable diligence. If a person\nexercising reasonable diligence discovers an alleged violation more than 60 days after it\noccurred, that individual must submit his or her Request for Review within 60 days of that\ndiscovery.\nalleged that the Board violated OMA at its February 23, 2021,\nSeptember 29, 2020, and July 28, 2020, meetings by holding improper closed sessions.\nSpecifically, he alleged that the Board's motions to go into closed sessions were too general to\nadequately identify the reasons for closing the meetings. He also alleged that a vote taken at the\nFebruary 23, 2021, meeting was vague. He further alleged that, based on agendas and open\nsession discussions, the Board had improper discussions during the closed sessions of its\nSeptember 29, 2020, and July 28, 2020, meetings.\nThere is no indication that\ndid not learn of the alleged OMA violations\nat the time of the February 23, 2021, September 29, 2020, and July 28, 2020, meetings or within\n60 days of those meetings despite exercising reasonable diligence. Indeed,\nstated he\nattended the February 23, 2021, and September 29, 2020, meetings. Further, the minutes for the\nJuly 28, 2020, meeting were approved on August 25, 2020,2 and would have been available for\nreview 10 days later.3 Because\ndid not submit his Request for Review before the\nstatutory period for doing so expired and because he did not provide facts indicating that he did\nnot learn of the alleged violations within 60 days of their occurrences despite using reasonable\ndiligence, section 3.5(a) of OMA precludes this office from reviewing those allegations.\nCommittee Meeting Agendas and Minutes\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides that\n\"[a]n agenda for each regular meeting shall be posted at the principal office of the public body\nand at the location where the meeting is to be held at least 48 hours in advance of the holding of\n2\n\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting,\nAugust 25, 2020, Minutes 2.\n3\n\nSection 2.06(b) of OMA (5 ILCS 120/2.06(b) (West 2020)) states that \"[a] public body shall\napprove the minutes of its open meeting within 30 days after that meeting or at the public body's second subsequent\nregular meeting, whichever is later. The minutes of meetings open to the public shall be available for public\ninspection within 10 days after the approval of such minutes by the public body.\"\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 4\n\nthe meeting.\" That provision further states that \"[a] public body that has a website that the fulltime staff of the public body maintains shall also post on its website the agenda of any regular\nmeetings of the governing body of that public body.\" (Emphasis added.) Additionally, section\n2.06(b) of OMA (5 ILCS 120/2.06(b) (West 2020)) provides that \"a public body that has a\nwebsite that the full-time staff of the public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public body's website within 10 days\nafter the approval of the minutes by the public body.\" (Emphasis added.) Based on the plain\nlanguage of sections 2.02(a) and 2.06(b), the Public Access Bureau has previously determined\nthat OMA only requires meeting agendas and minutes of the governing body of a public body to\nbe posted on a public body's website. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 38000, issued\nJanuary 11, 2016, at 3 (school district's local school council not required by OMA to post its\nmeeting agendas and minutes online because the board of education constituted the \"governing\nbody\" of the school district).\nSection 2.06(a) of OMA (5 ILCS 120/2.06(a) (West 2020)) provides that \"[a]ll\npublic bodies shall keep written minutes of all their meetings, whether open or closed, and a\nverbatim record of all their closed meetings[.]\" Section 2.06(b) of OMA requires that a public\nbody approve the meeting minutes \"within 30 days after that meeting or at the public body's\nsecond subsequent regular meeting, whichever is later. The minutes of meetings open to the\npublic shall be available for public inspection within 10 days after the approval of such minutes\nby the public body.\"\nIn his Request for Review,\nstated that the Finance Committee has\nposted meeting notices to the School District website, but that \"[a]ll agendas are the same and\nvery sparsely worded as to what will be discussed.\"4 He stated that the Board's Negotiations,\nPolicy, and Education/Transportation Committees do not post agendas to the website. He also\nindicated that no committee minutes are available on the website.\nIn its response to this office, the Board stated that the Finance Committee held\nmeetings in May 2021 and June 2021, and that the Board posted copies of that committee's\nmeeting notices on the School District website and at the School District Office more than 48\nhours in advance of holding the meetings. Although the Board posted Finance Committee\nmeeting notices, it does not appear that agendas were prepared for those meetings. The Board\nstated that it held Education and Transportation Committee meetings \"in May (May 20) and June\n\n4\n\nLetter from\nGeneral's Office (undated).\n\nto Sarah Pratt, Public Access Counselor, Illinois State Attorney\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 5\n\n(June 16), with one board member in attendance at each meeting.\"5 It acknowledged that it did\nnot prepare agendas for those meetings.\nIt does not appear that the Board has prepared meeting minutes for any of its\ncommittee meetings. In its response, the Board stated \"there are minutes for these particular\nFinance meetings and no agendas or minutes for the Education and Transportation Committee\nmeetings,\"6 but the Board did not provide this office with copies of the Finance Committee\nminutes, nor are they posted to the School District website. It is not clear whether the Board\nprepared any Finance Committee meeting minutes for the May or June meetings.\nAlthough OMA does not require the committees to post copies of their meeting\nagendas or minutes on the School District website because they are not the governing body of the\nSchool District, the committees must still create and post copies of their meeting agendas at the\nSchool District's principal office and meeting location at least 48 hours in advance of holding the\nmeetings. The committees must also prepare minutes and make them available to the public\nwithin 10 days of approval.\nThe Board stated in its response that it has taken steps since August 2021 to\nensure that it prepares, posts, and approves agendas and minutes for all of its committee\nmeetings. Those steps included providing additional OMA training to Board members and\nadditional content to the meeting agendas. Although this office does not recommend any\nadditional remedial action, we remind the Board's committees to adhere to all of the\nrequirements under sections 2.02 and 2.06 of OMA when holding meetings, including posting\nagendas at least 48 hours in advance and preparing minutes of those meetings.\nClosed Session Procedure\nSection 2a of OMA (5 ILCS 120/2a (West 2020)) sets forth the procedure for a\npublic body to enter closed session. Among those requirements, section 2a provides that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\n\n5\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2021), at 3.\n6\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2021), at 3.\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 6\n\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nSection 2(c) of OMA (5 ILCS 120/2(c) (West 2020)) lists the exceptions to the general\nrequirement that public bodies conduct public business openly. A public body does not need to\nprovide a citation to the statutory section number before going into closed session, but it must\n\"adequately identif[y] the exception\" in section 2(c) on which it relies to close the meeting.\nWyman v. Schweighart, 385 Ill. App. 3d 1099, 1105 (4th Dist. 2008).\nIn his Request for Review,\nalleged that at the May 25, 2021, meeting,\nthe Board's motion to enter closed session referenced only a \"personnel report\" and did not\ninclude a citation to any specific exception. The Board confirmed that it entered closed session\nat its May 25, 2021, meeting to discuss personnel-related matters pursuant to section 2(c)(1) of\nOMA, as well as student matters pursuant to section 2(c)(9) of OMA. Although the Board stated\nthat its agenda for the May 25, 2021, meeting agenda referenced the topics it intended to discuss\nin closed session,7 the Board did not assert that it provided a citation to the specific exception\ncontained in section 2 of OMA before voting to go into closed session.\nA general reference to \"personnel\" is insufficient to identify a particular\nexception. The Attorney General has issued a binding opinion explaining that referencing\n\"personnel\" before voting to enter closed session does not adequately identify any specific\nexception in section 2(a) of OMA. Ill. Att'y Gen. Pub. Acc. Op. No. 15-007, issued September\n16, 2015, at 4. This is because two other OMA exceptions (5 ILCS 120/2(c)(8), (c)(14) (West\n2020)) that permit public bodies to enter closed session contain the word \"personnel,\" whereas\nthe section 2(c)(1) exception for \"[t]he appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees[,]\" does not. The meeting minutes document\nthat the Board held an executive session for \"Employment/Appointment Matters\"8 and list\nsections 2(c)(1) and 2(c)(9) of OMA, among other exceptions under section 2(c). Although the\nmeeting minutes provide more detail regarding the particular exceptions that the Board appeared\nto have relied on to hold the executive session, the Board did not illustrate that it adequately\nidentified those exceptions when it moved to close the meeting. Indeed, the minutes simply\n\n7\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Agenda Item\n9, Executive Session (May 25, 2021) (\"Employment/Appointment Matters/Negotiations\").\n8\n\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting, May\n25, 2021, Minutes 3.\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 7\n\nstate: \"Motion to move into closed session.\"9 Under these circumstances, this office is unable to\nconclude that the Board met the public recital requirements of section 2a.\nThe Board stated that, starting with its October 26, 2021, meeting, it \"will include\nthe citation to the applicable exception(s) in the motion to enter closed session.\"10 Therefore, no\nremedial action is required. This office reminds the Board to adhere to the procedure for\nentering closed session, as set forth in section 2a. If the Board wishes to close a portion of a\nmeeting to discuss specific employees in the future, it must in open session either announce that\nit intends to close the meeting pursuant to \"section 2(c)(1)\" or recite language from section\n2(c)(1) that sufficiently identifies that exception. Ill. Att'y Gen. Pub. Acc. Op. No. 15-007,\nissued September 16, 2015, at 4-5. Similarly, if it plans to discuss student disciplinary matters, it\nmust make a public recital sufficient to identify the 2(c)(9) exception.\nClosed Session Exceptions\nAs noted above, OMA requires that all meetings of a public body remain open to\nthe public unless the public body properly invokes an exception in section 2(c) of OMA that\nauthorizes it to close the meeting. 5 ILCS 120/2(a), (c) (West 2020). The section 2(c)\nexceptions are to be \"strictly construed, extending only to subjects clearly within their scope.\" 5\nILCS 120/2(b) (West 2020).\nThe Board contended that its closed session discussion was proper pursuant to\nsections 2(c)(1) and 2(c)(9) of OMA (5 ILCS 120/2(c)(1), 2(c)(9) (West 2020)), which permit a\npublic body to hold closed session to discuss, in pertinent part:\n(1) The appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees,\nspecific individuals who serve as independent contractors in a\npark, recreational, or educational setting, or specific volunteers of\nthe public body or legal counsel for the public body, including\nhearing testimony on a complaint lodged against an employee, a\nspecific individual who serves as an independent contractor in a\npark, recreational, or educational setting, or a volunteer of the\npublic body or against legal counsel for the public body to\ndetermine its validity. * * * [and]\n9\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting, May\n25, 2021, Minutes 3.\n10\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2021), at 2.\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 8\n\n***\n(9) Student disciplinary cases.\nThe Attorney General has previously examined the purpose of section 2(c)(1) and\nconcluded that \"the General Assembly did not intend to permit public bodies to hold general\ndiscussions concerning categories of employees in closed session pursuant to section 2(c)(1).\"\nIll. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December 23, 2016, at 4. Rather, \"section\n2(c)(1) of OMA 'is intended to permit public bodies to candidly discuss the relative merits of\nindividual employees, or the conduct of individual employees.'\" Ill. Att'y Gen. Pub. Acc. Op.\nNo. 16-013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3);\nsee also 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 128 (the \"purpose of the\n[2(c)(1)] exception is to protect the identity and reputation of a person\").\nIn his Request for Review,\nstated that at the May 25, 2021, meeting,\nthe Board President \"was asking the board if they had other items or questions before going into\nclosed session to discuss 'resealing the parking lots, discuss the door replacement project, and\ngarden club proposal[,]'\" but that the motion to enter closed session stated only that the Board\nwould discuss a \"personnel report.\"11 Based on the Board President's statements,\nalleged that the Board did not limit its closed session discussion to the \"personnel report.\"\nIn its response to this office, the Board denied that it discussed the resealing of\nparking lots and a door replacement project in closed session but acknowledged that it discussed\nthe garden club. It contended that its discussion surrounding the garden club fell within the\nscope of section 2(c)(1). Additionally, the Board asserted that it discussed specific employee\nresignations and \"discipline issued to several specific students following incidents of student\nmisconduct[.]\"12 Because the Board submitted the portion of its response concerning the\napplicability of sections 2(c)(1) and 2(c)(9) under a claim of confidentiality, this office is\nrestricted from disclosing that information other than to note that the Board further explained its\ndiscussion regarding the employee and student matters.\nThis office's review of the closed session materials and complete Board response\nconfirmed that the Board discussed disciplinary issues related to specific students within the\nscope of section 2(c)(9). The Board also discussed individual employee resignations and certain\n11\nLetter from\nGeneral's Office (undated).\n12\n\nto Sarah Pratt, Public Access Counselor, Illinois State Attorney\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2021), at 3.\n\n\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 9\n\nother matters concerning the employment or appointment of specific employees, including a\nmatter involving the garden club; the Board did not discuss the resealing of parking lots or a door\nreplacement project. However, the Board did not limit its discussion of personnel matters to\nspecific employees. In particular, portions of the discussion pertained to broader employee\nconcerns or issues affecting categories of employees, as opposed to particular individuals. Such\ndiscussions did not involve the merits, performance, or conduct of specific employees and\ntherefore did not fall within the scope of section 2(c)(1). See, for example, Ill. Att'y Gen. Pub.\nAcc. Op. No. 18-012, issued October 2, 2018 (closed session budgetary discussions that did not\ncenter on the merits or conduct of specific employees or prospective employees were not\nauthorized by section 2(c)(1)); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62386, issued July 2, 2020\n(closed session discussions concerning the hiring and retaining of general categories of\nemployees, a school district's organizational structure, and educational issues fell outside the\nscope of section 2(c)(1)). Accordingly, this office concludes that the Board improperly\ndiscussed certain topics outside of the exceptions it relied upon to close its May 25, 2021,\nmeeting.\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available the portions of the closed session verbatim recording that did\nnot concern student disciplinary cases or particular employees. Specifically, this office requests\nthat the Board vote to make publicly available the portions of the verbatim recording at the\nfollowing time marks: 13:40-16:40 and 21:15-42:15.\nSemi-Annual Review of Closed Session Minutes\nAt the time of\nRequest for Review submission, section 2.06(d) of\nOMA (5 ILCS 140/2.06(d) (West 2020)) provided, in pertinent part:\nEach public body shall periodically, but no less than semiannually, meet to review minutes of all closed meetings. At such\nmeetings a determination shall be made, and reported in an open\nsession that (1) the need for confidentiality still exists as to all or\npart of those minutes or (2) that the minutes or portions thereof no\nlonger require confidential treatment and are available for public\ninspection.\nThe Board stated that at its October 26, 2021, meeting, it performed a semi-annual\nof its closed session minutes covering the time period of July 2018 through July 2021. The\n\n\f\fThe Honorable Kim Aulenbacher\nApril 14, 2022\nPage 11\n\ncc:\n\nVia electronic mail\nMs. Catherine Locallo\nAttorney for Prairie Hill School District #133\nRobbins Schwartz\n55 West Monroe, Suite 800\nChicago, Illinois 60603\nclocallo@robbins-schwartz.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that a local school board's committees were not properly posting agendas or keeping minutes for their meetings, and also alleged improper closed sessions at several board meetings. The Attorney General's office found that the citizen's closed-session complaints were filed too late to review, but did find that the board's committees had violated the Open Meetings Act by failing to prepare and post agendas and minutes for committee meetings. The office reminded the committees to follow the law but did not order any specific release of recordings or other materials.","card_headline":"A school board's closed-session discussions and failure to review minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72129/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 14, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Kim Aulenbacher\nPresident, Board of Education\nPrairie Hill School District #133\n6605 Prairie Hill Road\nSouth Beloit, Illinois 61080\naulenbacherk@prairiehill.org\nRE: OMA Request for Review – 2021-PAC-C-0472\nDear\n\nand Ms. Aulenbacher:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Education (Board) of the Prairie Hill School District #133 (School\nDistrict) violated the requirements of OMA.\nBACKGROUND\nOn June 22, 2021,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Board violated section 2(c) of OMA (5 ILCS 120/2(c) (West\n2020)) at its May 25, 2021, February 23, 2021, September 29, 2020, and July 28, 2020, meetings\nby failing to adequately identify its bases for entering closed session and for discussing topics in\nclosed session that did not fall within the scope of the exceptions it publicly recited as the bases\nfor closing those meetings.\nalso alleged that the Board's committees have not\ncomplied with OMA's requirements related to the preparation and posting of meeting agendas\n\nand minutes, as set forth in sections 2.02 and 2.06 of OMA (5 ILCS 120/2.02 (West 2020); 5\nILCS 120/2.06 (West 2020)). Additionally,\ncontended that the Board had not\nperformed a semi-annual review of its closed session minutes in the past year.\nOn October 20, 2021, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing\nallegations\nregarding the May 25, 2021, meeting, any committee meetings held in May or June 2021, and its\nreview of closed session minutes. This office also asked the Board to provide copies of: (1) the\nBoard's May 25, 2021, meeting agenda, open and closed session minutes, and verbatim recording\nof the closed session; (2) the agendas for any Board committee meetings held in May 2021 and\nJune 2021, with clarification of when and where those agendas were physically posted; and (3)\ncopies of the minutes for those May 2021 and June 2021 committee meetings. On October 29,\n2021, this office received the requested materials, including a complete response for this office's\nconfidential review and a redacted version for this office to forward to\n.1 On\nNovember 2, 2021, this office forwarded a copy of the Board's redacted response to\n;\nhe did not reply.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nFebruary 23, 2021, September 29, 2020, and July 28, 2020 Meetings\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides:\nA person who believes that a violation of this Act by a public body\nhas occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General not\nlater than 60 days after the alleged violation. If facts concerning\nthe violation are not discovered within the 60-day period, but are\ndiscovered at a later date, not exceeding 2 years after the alleged\nviolation, by a person utilizing reasonable diligence, the request\n1\n\nSee 5 ILCS 120/3.5(c) (West 2020) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review.\").\n\nfor review may be made within 60 days of the discovery of the\nalleged violation. (Emphasis added.)\nUnder the plain language of section 3.5(a), a person must submit a Request for Review within 60\ndays after an alleged violation occurred unless the person did not discover facts concerning the\nalleged violation within those 60 days despite utilizing reasonable diligence. If a person\nexercising reasonable diligence discovers an alleged violation more than 60 days after it\noccurred, that individual must submit his or her Request for Review within 60 days of that\ndiscovery.\nalleged that the Board violated OMA at its February 23, 2021,\nSeptember 29, 2020, and July 28, 2020, meetings by holding improper closed sessions.\nSpecifically, he alleged that the Board's motions to go into closed sessions were too general to\nadequately identify the reasons for closing the meetings. He also alleged that a vote taken at the\nFebruary 23, 2021, meeting was vague. He further alleged that, based on agendas and open\nsession discussions, the Board had improper discussions during the closed sessions of its\nSeptember 29, 2020, and July 28, 2020, meetings.\nThere is no indication that\ndid not learn of the alleged OMA violations\nat the time of the February 23, 2021, September 29, 2020, and July 28, 2020, meetings or within\n60 days of those meetings despite exercising reasonable diligence. Indeed,\nstated he\nattended the February 23, 2021, and September 29, 2020, meetings. Further, the minutes for the\nJuly 28, 2020, meeting were approved on August 25, 2020,2 and would have been available for\nreview 10 days later.3 Because\ndid not submit his Request for Review before the\nstatutory period for doing so expired and because he did not provide facts indicating that he did\nnot learn of the alleged violations within 60 days of their occurrences despite using reasonable\ndiligence, section 3.5(a) of OMA precludes this office from reviewing those allegations.\nCommittee Meeting Agendas and Minutes\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides that\n\"[a]n agenda for each regular meeting shall be posted at the principal office of the public body\nand at the location where the meeting is to be held at least 48 hours in advance of the holding of\n2\n\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting,\nAugust 25, 2020, Minutes 2.\n3\n\nSection 2.06(b) of OMA (5 ILCS 120/2.06(b) (West 2020)) states that \"[a] public body shall\napprove the minutes of its open meeting within 30 days after that meeting or at the public body's second subsequent\nregular meeting, whichever is later. The minutes of meetings open to the public shall be available for public\n\nthe meeting.\" That provision further states that \"[a] public body that has a website that the fulltime staff of the public body maintains shall also post on its website the agenda of any regular\nmeetings of the governing body of that public body.\" (Emphasis added.) Additionally, section\n2.06(b) of OMA (5 ILCS 120/2.06(b) (West 2020)) provides that \"a public body that has a\nwebsite that the full-time staff of the public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public body's website within 10 days\nafter the approval of the minutes by the public body.\" (Emphasis added.) Based on the plain\nlanguage of sections 2.02(a) and 2.06(b), the Public Access Bureau has previously determined\nthat OMA only requires meeting agendas and minutes of the governing body of a public body to\nbe posted on a public body's website. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 38000, issued\nJanuary 11, 2016, at 3 (school district's local school council not required by OMA to post its\nmeeting agendas and minutes online because the board of education constituted the \"governing\nbody\" of the school district).\nSection 2.06(a) of OMA (5 ILCS 120/2.06(a) (West 2020)) provides that \"[a]ll\npublic bodies shall keep written minutes of all their meetings, whether open or closed, and a\nverbatim record of all their closed meetings[.]\" Section 2.06(b) of OMA requires that a public\nbody approve the meeting minutes \"within 30 days after that meeting or at the public body's\nsecond subsequent regular meeting, whichever is later. The minutes of meetings open to the\npublic shall be available for public inspection within 10 days after the approval of such minutes\nby the public body.\"\nIn his Request for Review,\nstated that the Finance Committee has\nposted meeting notices to the School District website, but that \"[a]ll agendas are the same and\nvery sparsely worded as to what will be discussed.\"4 He stated that the Board's Negotiations,\nPolicy, and Education/Transportation Committees do not post agendas to the website. He also\nindicated that no committee minutes are available on the website.\nIn its response to this office, the Board stated that the Finance Committee held\nmeetings in May 2021 and June 2021, and that the Board posted copies of that committee's\nmeeting notices on the School District website and at the School District Office more than 48\nhours in advance of holding the meetings. Although the Board posted Finance Committee\nmeeting notices, it does not appear that agendas were prepared for those meetings. The Board\nstated that it held Education and Transportation Committee meetings \"in May (May 20) and June\n\n(June 16), with one board member in attendance at each meeting.\"5 It acknowledged that it did\nnot prepare agendas for those meetings.\nIt does not appear that the Board has prepared meeting minutes for any of its\ncommittee meetings. In its response, the Board stated \"there are minutes for these particular\nFinance meetings and no agendas or minutes for the Education and Transportation Committee\nmeetings,\"6 but the Board did not provide this office with copies of the Finance Committee\nminutes, nor are they posted to the School District website. It is not clear whether the Board\nprepared any Finance Committee meeting minutes for the May or June meetings.\nAlthough OMA does not require the committees to post copies of their meeting\nagendas or minutes on the School District website because they are not the governing body of the\nSchool District, the committees must still create and post copies of their meeting agendas at the\nSchool District's principal office and meeting location at least 48 hours in advance of holding the\nmeetings. The committees must also prepare minutes and make them available to the public\nwithin 10 days of approval.\nThe Board stated in its response that it has taken steps since August 2021 to\nensure that it prepares, posts, and approves agendas and minutes for all of its committee\nmeetings. Those steps included providing additional OMA training to Board members and\nadditional content to the meeting agendas. Although this office does not recommend any\nadditional remedial action, we remind the Board's committees to adhere to all of the\nrequirements under sections 2.02 and 2.06 of OMA when holding meetings, including posting\nagendas at least 48 hours in advance and preparing minutes of those meetings.\nClosed Session Procedure\nSection 2a of OMA (5 ILCS 120/2a (West 2020)) sets forth the procedure for a\npublic body to enter closed session. Among those requirements, section 2a provides that:\nThe vote of each member on the question of holding a meeting\nclosed to the public and a citation to the specific exception\ncontained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\n\n5\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\nOffice of the Illinois Attorney General, Public Access Bureau (October 29, 2021), at 3.\n6\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\n\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. (Emphasis added.)\nSection 2(c) of OMA (5 ILCS 120/2(c) (West 2020)) lists the exceptions to the general\nrequirement that public bodies conduct public business openly. A public body does not need to\nprovide a citation to the statutory section number before going into closed session, but it must\n\"adequately identif[y] the exception\" in section 2(c) on which it relies to close the meeting.\nWyman v. Schweighart, 385 Ill. App. 3d 1099, 1105 (4th Dist. 2008).\nIn his Request for Review,\nalleged that at the May 25, 2021, meeting,\nthe Board's motion to enter closed session referenced only a \"personnel report\" and did not\ninclude a citation to any specific exception. The Board confirmed that it entered closed session\nat its May 25, 2021, meeting to discuss personnel-related matters pursuant to section 2(c)(1) of\nOMA, as well as student matters pursuant to section 2(c)(9) of OMA. Although the Board stated\nthat its agenda for the May 25, 2021, meeting agenda referenced the topics it intended to discuss\nin closed session,7 the Board did not assert that it provided a citation to the specific exception\ncontained in section 2 of OMA before voting to go into closed session.\nA general reference to \"personnel\" is insufficient to identify a particular\nexception. The Attorney General has issued a binding opinion explaining that referencing\n\"personnel\" before voting to enter closed session does not adequately identify any specific\nexception in section 2(a) of OMA. Ill. Att'y Gen. Pub. Acc. Op. No. 15-007, issued September\n16, 2015, at 4. This is because two other OMA exceptions (5 ILCS 120/2(c)(8), (c)(14) (West\n2020)) that permit public bodies to enter closed session contain the word \"personnel,\" whereas\nthe section 2(c)(1) exception for \"[t]he appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees[,]\" does not. The meeting minutes document\nthat the Board held an executive session for \"Employment/Appointment Matters\"8 and list\nsections 2(c)(1) and 2(c)(9) of OMA, among other exceptions under section 2(c). Although the\nmeeting minutes provide more detail regarding the particular exceptions that the Board appeared\nto have relied on to hold the executive session, the Board did not illustrate that it adequately\nidentified those exceptions when it moved to close the meeting. Indeed, the minutes simply\n\n7\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Agenda Item\n9, Executive Session (May 25, 2021) (\"Employment/Appointment Matters/Negotiations\").\n8\n\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting, May\n\nstate: \"Motion to move into closed session.\"9 Under these circumstances, this office is unable to\nconclude that the Board met the public recital requirements of section 2a.\nThe Board stated that, starting with its October 26, 2021, meeting, it \"will include\nthe citation to the applicable exception(s) in the motion to enter closed session.\"10 Therefore, no\nremedial action is required. This office reminds the Board to adhere to the procedure for\nentering closed session, as set forth in section 2a. If the Board wishes to close a portion of a\nmeeting to discuss specific employees in the future, it must in open session either announce that\nit intends to close the meeting pursuant to \"section 2(c)(1)\" or recite language from section\n2(c)(1) that sufficiently identifies that exception. Ill. Att'y Gen. Pub. Acc. Op. No. 15-007,\nissued September 16, 2015, at 4-5. Similarly, if it plans to discuss student disciplinary matters, it\nmust make a public recital sufficient to identify the 2(c)(9) exception.\nClosed Session Exceptions\nAs noted above, OMA requires that all meetings of a public body remain open to\nthe public unless the public body properly invokes an exception in section 2(c) of OMA that\nauthorizes it to close the meeting. 5 ILCS 120/2(a), (c) (West 2020). The section 2(c)\nexceptions are to be \"strictly construed, extending only to subjects clearly within their scope.\" 5\nILCS 120/2(b) (West 2020).\nThe Board contended that its closed session discussion was proper pursuant to\nsections 2(c)(1) and 2(c)(9) of OMA (5 ILCS 120/2(c)(1), 2(c)(9) (West 2020)), which permit a\npublic body to hold closed session to discuss, in pertinent part:\n(1) The appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees,\nspecific individuals who serve as independent contractors in a\npark, recreational, or educational setting, or specific volunteers of\nthe public body or legal counsel for the public body, including\nhearing testimony on a complaint lodged against an employee, a\nspecific individual who serves as an independent contractor in a\npark, recreational, or educational setting, or a volunteer of the\npublic body or against legal counsel for the public body to\ndetermine its validity. * * * [and]\n9\nPrairie Hill Community Consolidated School District No. 133 Board of Education, Meeting, May\n25, 2021, Minutes 3.\n10\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\n\n***\n(9) Student disciplinary cases.\nThe Attorney General has previously examined the purpose of section 2(c)(1) and\nconcluded that \"the General Assembly did not intend to permit public bodies to hold general\ndiscussions concerning categories of employees in closed session pursuant to section 2(c)(1).\"\nIll. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December 23, 2016, at 4. Rather, \"section\n2(c)(1) of OMA 'is intended to permit public bodies to candidly discuss the relative merits of\nindividual employees, or the conduct of individual employees.'\" Ill. Att'y Gen. Pub. Acc. Op.\nNo. 16-013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3);\nsee also 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 128 (the \"purpose of the\n[2(c)(1)] exception is to protect the identity and reputation of a person\").\nIn his Request for Review,\nstated that at the May 25, 2021, meeting,\nthe Board President \"was asking the board if they had other items or questions before going into\nclosed session to discuss 'resealing the parking lots, discuss the door replacement project, and\ngarden club proposal[,]'\" but that the motion to enter closed session stated only that the Board\nwould discuss a \"personnel report.\"11 Based on the Board President's statements,\nalleged that the Board did not limit its closed session discussion to the \"personnel report.\"\nIn its response to this office, the Board denied that it discussed the resealing of\nparking lots and a door replacement project in closed session but acknowledged that it discussed\nthe garden club. It contended that its discussion surrounding the garden club fell within the\nscope of section 2(c)(1). Additionally, the Board asserted that it discussed specific employee\nresignations and \"discipline issued to several specific students following incidents of student\nmisconduct[.]\"12 Because the Board submitted the portion of its response concerning the\napplicability of sections 2(c)(1) and 2(c)(9) under a claim of confidentiality, this office is\nrestricted from disclosing that information other than to note that the Board further explained its\ndiscussion regarding the employee and student matters.\nThis office's review of the closed session materials and complete Board response\nconfirmed that the Board discussed disciplinary issues related to specific students within the\nscope of section 2(c)(9). The Board also discussed individual employee resignations and certain\n11\nLetter from\nGeneral's Office (undated).\n12\n\nto Sarah Pratt, Public Access Counselor, Illinois State Attorney\n\nLetter from Catherine R. Locallo, Robbins Schwartz, to Teresa Lim, Assistant Attorney General,\n\nother matters concerning the employment or appointment of specific employees, including a\nmatter involving the garden club; the Board did not discuss the resealing of parking lots or a door\nreplacement project. However, the Board did not limit its discussion of personnel matters to\nspecific employees. In particular, portions of the discussion pertained to broader employee\nconcerns or issues affecting categories of employees, as opposed to particular individuals. Such\ndiscussions did not involve the merits, performance, or conduct of specific employees and\ntherefore did not fall within the scope of section 2(c)(1). See, for example, Ill. Att'y Gen. Pub.\nAcc. Op. No. 18-012, issued October 2, 2018 (closed session budgetary discussions that did not\ncenter on the merits or conduct of specific employees or prospective employees were not\nauthorized by section 2(c)(1)); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62386, issued July 2, 2020\n(closed session discussions concerning the hiring and retaining of general categories of\nemployees, a school district's organizational structure, and educational issues fell outside the\nscope of section 2(c)(1)). Accordingly, this office concludes that the Board improperly\ndiscussed certain topics outside of the exceptions it relied upon to close its May 25, 2021,\nmeeting.\nTo remedy this violation, this office asks that the Board vote to release to\nand make publicly available the portions of the closed session verbatim recording that did\nnot concern student disciplinary cases or particular employees. Specifically, this office requests\nthat the Board vote to make publicly available the portions of the verbatim recording at the\nfollowing time marks: 13:40-16:40 and 21:15-42:15.\nSemi-Annual Review of Closed Session Minutes\nAt the time of\nRequest for Review submission, section 2.06(d) of\nOMA (5 ILCS 140/2.06(d) (West 2020)) provided, in pertinent part:\nEach public body shall periodically, but no less than semiannually, meet to review minutes of all closed meetings. At such\nmeetings a determination shall be made, and reported in an open\nsession that (1) the need for confidentiality still exists as to all or\n\ncc:\n\nVia electronic mail\nMs. Catherine Locallo\nAttorney for Prairie Hill School District #133\nRobbins Schwartz\n55 West Monroe, Suite 800\nChicago, Illinois 60603\nclocallo@robbins-schwartz.com"}
{"id":1389,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-10-20","case_number":null,"request_numbers":["72176"],"title":"Village of Maywood Board of Trustees violated OMA with inadequate emergency meeting notice","filename":"72176, issued October 20, 2022.pdf","rel_path":null,"word_count":1974,"summary":"A requester alleged that the Village of Maywood Board of Trustees failed to provide proper notice and lacked a valid emergency basis for a June 4, 2022, meeting. The PAC determined that the Board violated the Open Meetings Act by failing to provide the required public notice for the meeting.","plain_summary":"A citizen complained that the Village of Maywood held an 'emergency' meeting without giving the public proper notice or having a real emergency. The Attorney General's office agreed, finding that the Village failed to follow the legal requirements for notifying the public about the meeting. This means the Village did not comply with transparency laws regarding how and when public meetings must be announced.","holding":"The Village of Maywood Board of Trustees violated the Open Meetings Act by failing to provide proper public notice for its June 4, 2022, emergency meeting.","legal_question":"Whether the Village of Maywood Board of Trustees complied with the Open Meetings Act notice requirements for an emergency meeting held on June 4, 2022.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Maywood Board of Trustees","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The propriety of an emergency meeting held by the Village of Maywood Board of Trustees and the associated public notice requirements.","ocr_status":"ok","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/emergency-meetings/72176, issued October 20, 2022.pdf","sha256":"92fb4392f5bd26d95f86a2aeb8e849adf5e6a6ca5f8d17a1fd35d87fed6abe97","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["emergency meeting","public notice","Open Meetings Act","meeting agenda"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 20, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Nathaniel George Booker\nMayor\nVillage of Maywood\n40 Madison Street\nMaywood, Illinois 60153\nnbooker@maywood- il.org\nRE: OMA Request for Review – 2022 PAC 72176\nDear\n\nand Mr. Booker:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the Village of Maywood' s Board of Trustees ( Board) violated OMA in\nconnection with its June 4, 2022, emergency meeting.\nBACKGROUND\nIn a Request for Review received by this office on June 8, 2022,\nalleged that that the Board did not have a valid basis for holding an emergency\nmeeting on June 4, 2022. She also alleged that the Board did not provide advance notice of the\nJune 4, 2022, emergency meeting. On June 14, 2022, this office sent a copy of the Request for\nReview to the Board and requested that it provide a detailed legal and factual explanation of the\nbona fide emergency that necessitated the June 4, 2022, emergency meeting. This office also\nasked when the Board determined that an emergency meeting needed to take place and to\ndescribe how the Board notified members of the public of the emergency meeting. This office\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Nathaniel George Booker\nOctober 20, 2022\nPage 2\n\nrequested copies of the notice, agenda, and open and closed session minutes, and open session\nrecording for the June 4, 2022, emergency meeting. On June 23, 2022, the Board' s legal counsel\nprovided a written response on behalf of the Board and the requested materials. On June 27,\n2022, this office forwarded the Board' s written response to\nshe replied on July 2,\n2022.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nOMA provides that it is the \" public policy of this State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in anyway.\" 5 ILCS 120/ 1 (West 2020). Section 2.02(a) of\nOMA ( 5 ILCS 120/ 2.02(a) ( West 2020)) provides that \"[ p] ublic notice of any special meeting\nexcept a meeting held in the event of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\nEmphasis added.)\nOMA does not define the phrase \" bona fide emergency,\" and no Illinois appellate\ncourt has addressed the issue of what constitutes a bona fide emergency for purposes of section\n2.02(a). An \" emergency\" is defined as \" an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 ( Emphasis added.) Based on this definition, the\nPublic Access Bureau has previously determined that \" unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body's\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \" bona fide emergency\" under section 2.02(a), partly because the \" situation\nthat precipitated\" the meeting \" was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass' n v. South Texas Sports, 720 S.W.2d 551,\n557 ( Tex. App. 1986) (\" The mere necessity for quick action does not constitute an emergency\nwhere the situation calling for such action is one which reasonably should have been\nanticipated.\").\n\n1WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY, 741 ( 1993).\n\n\fThe Honorable Nathaniel George Booker\nOctober 20, 2022\nPage 3\n\nIn its response to this office, the Board argued that it needed to hold the Saturday,\nJune 4, 2022, emergency meeting to vote on a replacement for its suspended Village Manager.\nThe Board explained that on Thursday, June 2, 2022, it held a special meeting at 8:05 p.m. to\nconsider the employment status of its Village Manager, during which it entered closed session to\n\"review and discuss the investigative report regarding occurrences of [the Village Manager's]\nworkplace misconduct[.]\" 2 After coming out of closed session at 1:16 a.m. on Friday, June 3,\n2022, the Board voted to suspend the Village Manager. In its written answer in this matter, the\nBoard asserted that \"it was imperative that [it] immediately schedule an emergency meeting to\nappoint a person to act as Interim Village Manager\" because of the essential role a village\nmanager plays in the daily Village operations. 3 The Board explained that \"[t]he Village Manager\nis generally responsible for enforcement of all laws and ordinances within the municipality;\nmanagement of municipal departments including the appointment and/or removal of all\ndirectors; and attending and participating in all Board of Trustee meetings.\" 4 The Board further\ncontended that \"a constant executive presence is necessary to provide authority\" in the case of a\nVillage emergency. 5 The Board stated that \"[h]ad [it] declined to hold the Emergency Meeting\non June 4, 2022, the Board would remain without a Village executive until at least June 21,\n2022, the next regularly scheduled Board\" meeting. 6\nThe Board explained that it posted the notice and agenda for the 10:00 a.m. June\n4, 2022, emergency meeting on June 3, 2022, at the Village Hall and on the Village website\ncalendar. The Board provided a screenshot of the history of changes made to the June 4, 2022,\nmeeting agenda on the BoardBook online platform, showing that at 11:06 a.m. on June 3, 2022,\nthe June 4, 2022, meeting was created. The history reflects that edits were made to the agenda\nperiodically throughout the day until June 3, 2022, at 2:03 p.m. The Board also provided an e­\nmail sent at 3:00 p.m. on June 3, 2022, confirming that the physical copy of the agenda was\nposted. The Board argued that notice was provided as quickly as practicable given how late the\nspecial meeting had ended that morning.\n2\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 1.\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n3\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n4\n\n5 Letter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n6\n\n\fThe Honorable Nathaniel George Booker\nOctober 20, 2022\nPage 4\n\nIn her reply,\nasserted that the suspension of the Village Manager\nwas foreseeable. She contended that \"[ i]t had been apparent for months now that the mayor and\nthe village manager had reached irreconcilable differences.\" 7 She further questioned why the\nBoard did not go into the June 2, 2022, special meeting with a plan to replace the Village\nManager.\nIt is not apparent to this office that the appointment of an interim Village Manager\nwas an unforeseen circumstance that required immediate action on Saturday, June 4, 2022.\nWhile the Board did not know for certain that it would vote to suspend the Village Manager at its\nJune 2, 2022, special meeting, it had foreseen that it might need to take action on her\nemployment, as demonstrated by the June 2, 2022, agenda item \" Consideration of Village\nManager' s Employment status.\" 8 It was logically foreseeable that if the Board voted to terminate\nor suspend the Village Manager, it would need to appoint a replacement at the same time;\ntherefore, the Board should have included an agenda item on its June 2, 2022, special meeting\nagenda to consider the appointment of an interim Village Manager. 9 Although the Board\nemphasized the importance of having a Village Manager in place to manage the daily operations\nof the Village, it did not point to any specific circumstances occurring on the weekend of June 45, 2022, that required the appointment of an interim executive on Saturday morning. Contrary to\nthe Board' s contention, it would not have had to wait until its next regularly scheduled Board\nmeeting on June 21, 2022, to appoint an interim Village Manager; it could have called a special\nmeeting for Sunday, June 5, 2022, to be held 48 hours after it posted the agenda on June 3, 2022.\nBecause the Board did not provide this office with facts supporting that a bona fide emergency\nexisted that warranted holding a meeting with less than 48 hours' advance notice of the proposed\nfinal action, this office concludes that the Board violated section 2.02(a) of OMA. Because\nremedial action is not feasible at this time, this office requests that the Board comply with the\nnotice provisions of OMA in the future.\n\n7E- mail from\n\nto [ Laura Harter] ( July 2, 2022).\n\n8President and Board of Trustees, Village of Maywood, Special Meeting, Agenda Item 8.A.,\nConsideration of Village Manager' s Employment status ( June 2, 2022).\n9This office recognizes that the June 2, 2022, special meeting ran very late, but had the Board\nincluded an agenda item to consider the appointment of an interim village manager on its June 2, 2022, special\nmeeting agenda, it could have reconvened the special meeting within 24 hours to finish any business that it could not\ncomplete due to the late hour. 5 ILCS 120/2.02(a) ( West 2020) (\" The requirement of public notice of reconvened\nmeetings does not apply to any case where the meeting was open to the public and ( 1) it is to be reconvened within\n24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting\nand there is no change in the agenda.\").\n\n\fThe Honorable Nathaniel George Booker\nOctober 20, 2022\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n72176 o 202a notice improper mun\ncc:\n\nVia electronic mail\nMs. Mallory A. Milluzzi\nAssistant Village Attorney\nKlein, Thorpe & Jenkins, LTD.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606\nmamilluzzi@ktjlaw. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's emergency meeting notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72176/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 20, 2022\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Nathaniel George Booker\nMayor\nVillage of Maywood\n40 Madison Street\nMaywood, Illinois 60153\nnbooker@maywood- il.org\nRE: OMA Request for Review – 2022 PAC 72176\nDear\n\nand Mr. Booker:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau concludes that the Village of Maywood's Board of Trustees (Board) violated OMA in\nconnection with its June 4, 2022, emergency meeting.\nBACKGROUND\nIn a Request for Review received by this office on June 8, 2022,\nalleged that that the Board did not have a valid basis for holding an emergency\nmeeting on June 4, 2022. She also alleged that the Board did not provide advance notice of the\nJune 4, 2022, emergency meeting. On June 14, 2022, this office sent a copy of the Request for\nReview to the Board and requested that it provide a detailed legal and factual explanation of the\nbona fide emergency that necessitated the June 4, 2022, emergency meeting. This office also\nasked when the Board determined that an emergency meeting needed to take place and to\ndescribe how the Board notified members of the public of the emergency meeting. This office\n\nrequested copies of the notice, agenda, and open and closed session minutes, and open session\nrecording for the June 4, 2022, emergency meeting. On June 23, 2022, the Board's legal counsel\nprovided a written response on behalf of the Board and the requested materials. On June 27,\n2022, this office forwarded the Board's written response to\nshe replied on July 2,\n2022.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nOMA provides that it is the \" public policy of this State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in anyway.\" 5 ILCS 120/ 1 (West 2020). Section 2.02(a) of\nOMA (5 ILCS 120/ 2.02(a) (West 2020)) provides that \"[ p] ublic notice of any special meeting\nexcept a meeting held in the event of a bona fide emergency, or of any rescheduled regular\nmeeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting[.]\"\nEmphasis added.)\nOMA does not define the phrase \" bona fide emergency,\" and no Illinois appellate\ncourt has addressed the issue of what constitutes a bona fide emergency for purposes of section\n2.02(a). An \" emergency\" is defined as \" an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 (Emphasis added.) Based on this definition, the\nPublic Access Bureau has previously determined that \" unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body's\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \" bona fide emergency\" under section 2.02(a), partly because the \" situation\nthat precipitated\" the meeting \" was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass' n v. South Texas Sports, 720 S.W.2d 551,\n557 (Tex. App. 1986) (\" The mere necessity for quick action does not constitute an emergency\n\nIn its response to this office, the Board argued that it needed to hold the Saturday,\nJune 4, 2022, emergency meeting to vote on a replacement for its suspended Village Manager.\nThe Board explained that on Thursday, June 2, 2022, it held a special meeting at 8:05 p.m. to\nconsider the employment status of its Village Manager, during which it entered closed session to\n\"review and discuss the investigative report regarding occurrences of [the Village Manager's]\nworkplace misconduct[.]\" 2 After coming out of closed session at 1:16 a.m. on Friday, June 3,\n2022, the Board voted to suspend the Village Manager. In its written answer in this matter, the\nBoard asserted that \"it was imperative that [it] immediately schedule an emergency meeting to\nappoint a person to act as Interim Village Manager\" because of the essential role a village\nmanager plays in the daily Village operations. 3 The Board explained that \"[t]he Village Manager\nis generally responsible for enforcement of all laws and ordinances within the municipality;\nmanagement of municipal departments including the appointment and/or removal of all\ndirectors; and attending and participating in all Board of Trustee meetings.\" 4 The Board further\ncontended that \"a constant executive presence is necessary to provide authority\" in the case of a\nVillage emergency. 5 The Board stated that \"[h]ad [it] declined to hold the Emergency Meeting\non June 4, 2022, the Board would remain without a Village executive until at least June 21,\n2022, the next regularly scheduled Board\" meeting. 6\nThe Board explained that it posted the notice and agenda for the 10:00 a.m. June\n4, 2022, emergency meeting on June 3, 2022, at the Village Hall and on the Village website\ncalendar. The Board provided a screenshot of the history of changes made to the June 4, 2022,\nmeeting agenda on the BoardBook online platform, showing that at 11:06 a.m. on June 3, 2022,\nthe June 4, 2022, meeting was created. The history reflects that edits were made to the agenda\nperiodically throughout the day until June 3, 2022, at 2:03 p.m. The Board also provided an e­\nmail sent at 3:00 p.m. on June 3, 2022, confirming that the physical copy of the agenda was\nposted. The Board argued that notice was provided as quickly as practicable given how late the\nspecial meeting had ended that morning.\n2\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 1.\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n3\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n4\n\n5 Letter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n\nLetter from Mallory A. Milluzzi, Assistant Village Attorney, Klein Thorpe and Jenkins, LTD, to\nLaura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (June 23, 2022), at 2.\n\nIn her reply,\nasserted that the suspension of the Village Manager\nwas foreseeable. She contended that \"[ i]t had been apparent for months now that the mayor and\nthe village manager had reached irreconcilable differences.\" 7 She further questioned why the\nBoard did not go into the June 2, 2022, special meeting with a plan to replace the Village\nManager.\nIt is not apparent to this office that the appointment of an interim Village Manager\nwas an unforeseen circumstance that required immediate action on Saturday, June 4, 2022.\nWhile the Board did not know for certain that it would vote to suspend the Village Manager at its\nJune 2, 2022, special meeting, it had foreseen that it might need to take action on her\nemployment, as demonstrated by the June 2, 2022, agenda item \" Consideration of Village\nManager's Employment status.\" 8 It was logically foreseeable that if the Board voted to terminate\nor suspend the Village Manager, it would need to appoint a replacement at the same time;\ntherefore, the Board should have included an agenda item on its June 2, 2022, special meeting\nagenda to consider the appointment of an interim Village Manager. 9 Although the Board\nemphasized the importance of having a Village Manager in place to manage the daily operations\nof the Village, it did not point to any specific circumstances occurring on the weekend of June 45, 2022, that required the appointment of an interim executive on Saturday morning. Contrary to\nthe Board's contention, it would not have had to wait until its next regularly scheduled Board\nmeeting on June 21, 2022, to appoint an interim Village Manager; it could have called a special\nmeeting for Sunday, June 5, 2022, to be held 48 hours after it posted the agenda on June 3, 2022.\nBecause the Board did not provide this office with facts supporting that a bona fide emergency\nexisted that warranted holding a meeting with less than 48 hours' advance notice of the proposed\nfinal action, this office concludes that the Board violated section 2.02(a) of OMA. Because\nremedial action is not feasible at this time, this office requests that the Board comply with the\nnotice provisions of OMA in the future.\n\n7E- mail from\n\nto [ Laura Harter] (July 2, 2022).\n\n8 President and Board of Trustees, Village of Maywood, Special Meeting, Agenda Item 8.A.,\nConsideration of Village Manager's Employment status (June 2, 2022).\n9 This office recognizes that the June 2, 2022, special meeting ran very late, but had the Board\nincluded an agenda item to consider the appointment of an interim village manager on its June 2, 2022, special\nmeeting agenda, it could have reconvened the special meeting within 24 hours to finish any business that it could not\ncomplete due to the late hour. 5 ILCS 120/2.02(a) (West 2020) (\" The requirement of public notice of reconvened\nmeetings does not apply to any case where the meeting was open to the public and (1) it is to be reconvened within\n24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\nSpringfield address on the first page of this letter. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n72176 o 202a notice improper mun\ncc:\n\nVia electronic mail\nMs. Mallory A. Milluzzi\nAssistant Village Attorney\nKlein, Thorpe & Jenkins, LTD.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606\nmamilluzzi@ktjlaw. com"}
{"id":1390,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-07-12","case_number":null,"request_numbers":["72478"],"title":"Hinsdale District 86 FOIA: School board member's public comment rights not covered by OMA","filename":"72478, issued July 12, 2022.pdf","rel_path":null,"word_count":1073,"summary":"A requester alleged that the Hinsdale Township High School District 86 Board violated the Open Meetings Act by preventing a Board member from speaking during the public comment period, but the PAC determined the Act's public comment provisions apply only to members of the public, not Board members.","plain_summary":"A citizen complained that a school board member was unfairly silenced during the public comment portion of a meeting. The Attorney General's office determined that the law requiring public comment periods is intended for members of the public, not for board members themselves. Consequently, the office closed the file without taking further action.","holding":"The PAC concluded that no further action was warranted because the Open Meetings Act's public comment requirement does not grant a right for a public body member to address the body during the public comment period.","legal_question":"Does section 2.06(g) of the Open Meetings Act, which requires public bodies to provide an opportunity for members of the public to address officials, extend to members of the public body itself?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of Hinsdale Township High School District 86","requesting_party":null,"pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerned whether a school board member has a statutory right to speak during the public comment period of a board meeting.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/72478, issued July 12, 2022.pdf","sha256":"90672c9a22e9a2ad013b7914c8bbb852845dd3a612bb32c9d96ba312848bdfee","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","school board","Open Meetings Act","board member rights"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 12, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 72478\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) (West 2010)). For the reasons set forth below, the Public Access\nBureau concludes that no further action in this matter is warranted.\nIn your Request for Review, received July 3, 2022, you alleged that the Board of\nEducation ( Board) of Hinsdale Township High School District 86 violated section 2.06(g) of\nOMA ( 5 ILCS 120/ 2.06(g) (West 2020), as amended by Public Act 102- 653, effective January 1,\n2022) by restraining a Board member from giving public comment on confidential Board matters\nduring the public comment period of the Board' s June 23, 2022, meeting. Specifically, you\nallege that the Board member presiding over the meeting interrupted her fellow member twice\nwhile she attempted to comment, during the period designated for public comments, about draft\nminutes of a prior closed session Board meeting.\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Your Request for Review argues that section 2.06(g) of OMA permits \" any person\" the\nright address the public body, and that it does not matter whether the person wishing to speak\nhappens to be a member of the public body. However, the Attorney General has previously\nnoted that \"[ s] ection 2.06(g) of OMA, which was added by Public Act 96-1473, effective\nJanuary 1, 2011, now requires that all public bodies subject to the Act provide an opportunity for\nmembers of the public to address public officials at open meetings.\" ( Emphasis added.) Ill.\nAtt'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 4; see Ill. Att'y Gen. Pub.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fJuly 12, 2022\nPage 2\n\nAcc. Op. No. 21-009, issued September 21, 2021, at 4 (\" A public body violates section 2.06(g)\nof OMA when it prohibits ' public comment' during a meeting by denying members of the\npublic an opportunity to address the members of the public body in open session.\") ( Emphasis\nadded.). Relying on that statement, this office determined that no further inquiry was warranted\non an allegation that a public body violated OMA when it prevented a member of the public\nbody from voicing her opinions and concerns during the public comment portions of its\nmeetings. Ill. Att'y Gen. PAC Req. Rev. Ltr. 52413, issued April 6, 2018. In that matter, this\noffice concluded that \" section 2.06(g) is intended to provide the right to address the Board to\nmembers of the public, not to the Board members themselves.\" Ill. Att'y Gen. PAC Req. Rev.\nLtr. 52413, issued April 6, 2018, at 2; cf. Ill. Att'y Gen. PAC Req. Rev. Ltr. 66974, issued March\n3, 2021, at 2 (noting that 2.06(g) of OMA is not intended to secure the right of public body\nmembers to speak during meetings).\nSection 2.06(g) of OMA was adopted to ensure that members of the public have\nat least one designated time period at every public meeting during which they can address public\nofficials. Prior to its enactment, any right to address the public body was derived only from\nstatutes governing specific governmental entities or policies adopted by them. Ill. Att'y Gen.\nPub. Acc. Op. No. 14-009, issued September 4, 2014, at 4. In contrast, public officials who are\nmembers of public bodies are entitled to fully participate in meetings and are not reliant on\nprovisions within OMA to ensure that they can communicate with their fellow public officials.\nAlthough a public official constitutes a \" person\" under the common definition of that term, it is\napparent that the purpose of section 2.06(g) was not to ensure that public officials \" shall be\npermitted an opportunity to address public officials\" at public meetings. See also Higgs v.\nHouston- Philpot, No. 302767, 2012 Mich. App. LEXIS 677, at * 6 (Mich. Ct. Appeals Apr. 17,\n2012) ( construing Michigan' s Open Meetings Act; \" We fail to see how the purpose of the OMA\nis achieved when individual members of the public body are permitted to present their personal\ndisagreements about the decision- making of the public body to which they are a member during\nthe public comment segment of the meeting.\"). Most public bodies permit only a limited amount\nof time for public comment, such as 30 minutes or 60 minutes. It would undermine the intent of\nsection 2.06(g) to construe that provision as requiring public bodies to permit their members to\nseek to use a portion of the time that the General Assembly intended to devote to members of the\npublic. Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 107 ( 2000) ( A statute should\nnot be construed in a way that would defeat its purpose \" or yield an absurd or unjust result.\").\nAccordingly, because you have alleged that the Board prohibited a Board member\nrather than a member of the public from addressing public officials at its June 23, 2022, meeting,\nthis office will take no further action as to this matter. 5 ILCS 120/ 3.5(a) ( West 2020) (\" A\nperson who believes that a violation of this Act by a public body has occurred may file a request\nfor review with the Public Access Counselor established in the Office of the Attorney General[.]\nThe request for review * * * must include a summary of the facts supporting the\nallegation.\").\n\n\fJuly 12, 2022\nPage 3\n\nThis file is closed. If you have any questions, you may contact me at the\nleah.bartelt@ilag. gov or (312) 814-6437.\nVery truly yours,\n\nLEAH BARTELT\nPublic Access Counselor\nPublic Access Bureau\n72478 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Erik Held\nPresident, Board of Education\nHinsdale Township High School District 86\n5500 South Grant Street\nHinsdale, Illinois 60521\neheld@hinsdale86. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board member's right to speak during public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72478/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 12, 2022\n\nVia electronic mail\n\nRE: OMA Request for Review – 2022 PAC 72478\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2010)). For the reasons set forth below, the Public Access\nBureau concludes that no further action in this matter is warranted.\nIn your Request for Review, received July 3, 2022, you alleged that the Board of\nEducation (Board) of Hinsdale Township High School District 86 violated section 2.06(g) of\nOMA (5 ILCS 120/ 2.06(g) (West 2020), as amended by Public Act 102- 653, effective January 1,\n2022) by restraining a Board member from giving public comment on confidential Board matters\nduring the public comment period of the Board's June 23, 2022, meeting. Specifically, you\nallege that the Board member presiding over the meeting interrupted her fellow member twice\nwhile she attempted to comment, during the period designated for public comments, about draft\nminutes of a prior closed session Board meeting.\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Your Request for Review argues that section 2.06(g) of OMA permits \" any person\" the\nright address the public body, and that it does not matter whether the person wishing to speak\nhappens to be a member of the public body. However, the Attorney General has previously\nnoted that \"[ s] ection 2.06(g) of OMA, which was added by Public Act 96-1473, effective\nJanuary 1, 2011, now requires that all public bodies subject to the Act provide an opportunity for\nmembers of the public to address public officials at open meetings.\" (Emphasis added.) Ill.\nAtt'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 4; see Ill. Att'y Gen. Pub.\n\nAcc. Op. No. 21-009, issued September 21, 2021, at 4 (\" A public body violates section 2.06(g)\nof OMA when it prohibits ' public comment' during a meeting by denying members of the\npublic an opportunity to address the members of the public body in open session.\") (Emphasis\nadded.). Relying on that statement, this office determined that no further inquiry was warranted\non an allegation that a public body violated OMA when it prevented a member of the public\nbody from voicing her opinions and concerns during the public comment portions of its\nmeetings. Ill. Att'y Gen. PAC Req. Rev. Ltr. 52413, issued April 6, 2018. In that matter, this\noffice concluded that \" section 2.06(g) is intended to provide the right to address the Board to\nmembers of the public, not to the Board members themselves.\" Ill. Att'y Gen. PAC Req. Rev.\nLtr. 52413, issued April 6, 2018, at 2; cf. Ill. Att'y Gen. PAC Req. Rev. Ltr. 66974, issued March\n3, 2021, at 2 (noting that 2.06(g) of OMA is not intended to secure the right of public body\nmembers to speak during meetings).\nSection 2.06(g) of OMA was adopted to ensure that members of the public have\nat least one designated time period at every public meeting during which they can address public\nofficials. Prior to its enactment, any right to address the public body was derived only from\nstatutes governing specific governmental entities or policies adopted by them. Ill. Att'y Gen.\nPub. Acc. Op. No. 14-009, issued September 4, 2014, at 4. In contrast, public officials who are\nmembers of public bodies are entitled to fully participate in meetings and are not reliant on\nprovisions within OMA to ensure that they can communicate with their fellow public officials.\nAlthough a public official constitutes a \" person\" under the common definition of that term, it is\napparent that the purpose of section 2.06(g) was not to ensure that public officials \" shall be\npermitted an opportunity to address public officials\" at public meetings. See also Higgs v.\nHouston- Philpot, No. 302767, 2012 Mich. App. LEXIS 677, at * 6 (Mich. Ct. Appeals Apr. 17,\n2012) (construing Michigan's Open Meetings Act; \" We fail to see how the purpose of the OMA\nis achieved when individual members of the public body are permitted to present their personal\ndisagreements about the decision- making of the public body to which they are a member during\nthe public comment segment of the meeting.\"). Most public bodies permit only a limited amount\nof time for public comment, such as 30 minutes or 60 minutes. It would undermine the intent of\nsection 2.06(g) to construe that provision as requiring public bodies to permit their members to\nseek to use a portion of the time that the General Assembly intended to devote to members of the\npublic. Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 107 (2000) (A statute should\nnot be construed in a way that would defeat its purpose \" or yield an absurd or unjust result.\").\nAccordingly, because you have alleged that the Board prohibited a Board member\nrather than a member of the public from addressing public officials at its June 23, 2022, meeting,\nthis office will take no further action as to this matter. 5 ILCS 120/ 3.5(a) (West 2020) (\" A\nperson who believes that a violation of this Act by a public body has occurred may file a request\nfor review with the Public Access Counselor established in the Office of the Attorney General[.]\n\nThis file is closed. If you have any questions, you may contact me at the\nleah.bartelt@ilag. gov or (312) 814-6437.\nVery truly yours,\n\nLEAH BARTELT\nPublic Access Counselor\nPublic Access Bureau\n72478 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Erik Held\nPresident, Board of Education\nHinsdale Township High School District 86\n5500 South Grant Street\nHinsdale, Illinois 60521\neheld@hinsdale86. org"}
{"id":1391,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-09-18","case_number":null,"request_numbers":["72604"],"title":"Chicago Board of Ethics violated OMA by discussing policy matters in closed session","filename":"72604, issued September 18, 2024.pdf","rel_path":null,"word_count":1718,"summary":"The requester alleged that the City of Chicago Board of Ethics improperly discussed policy matters during a closed session meeting. The PAC determined that the Board violated the Open Meetings Act by discussing topics that did not fall within the cited closed session exceptions.","plain_summary":"A citizen complained that the Chicago Board of Ethics discussed policy issues in a private meeting that should have been held in public. The Attorney General's office reviewed the meeting recording and agreed that the Board improperly discussed these topics behind closed doors. The Board has been asked to release the portions of the meeting minutes and recordings related to those specific discussions.","holding":"The City of Chicago Board of Ethics violated the Open Meetings Act by discussing matters beyond the scope of the cited closed session exceptions.","legal_question":"Whether the City of Chicago Board of Ethics improperly discussed matters outside the scope of the cited OMA closed session exceptions (5 ILCS 120/2(c)(1), (4), and (21)) during its May 16, 2022, meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(1)","120/2(c)(4)","120/2(c)(21)"],"public_body":"City of Chicago Board of Ethics","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board discussed amendments to financial interest statements, a transit card program, and ward newsletters during a closed session.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_d/quasi-adjudicative-body/72604, issued September 18, 2024.pdf","sha256":"78da242ceaad4f3316a8b11d6c16fcbbdeea36c2e3f29ec9fc6e7e1991ca6fff","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","open meetings act","board of ethics","meeting minutes"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"September 18, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard Superfine\nLegal Counsel\nCity of Chicago Board of Ethics\n740 North Sedgwick\nChicago, Illinois 60654\nrichard. superfine@cityofchicago. org\nRE: OMA Request for Review – 2022 PAC 72604\nDear\n\nand Mr. Superfine:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). For the reasons that follow, the Public Access Bureau concludes that the City of\nChicago Board of Ethics ( Board) violated OMA at its May 16, 2022, meeting.\n1\n\nBACKGROUND\nOn July 13, 2022,\nsubmitted a Request for Review alleging that\nduring the closed session portion of its May 16, 2022, meeting, the Board improperly discussed\nmatters beyond the scope of the exceptions in sections 2(c)(1), 2(c)(4) and 2(c)(21) of OMA (5\nILCS 120/ 2(c)(1), ( c)(4), ( c)(21) ( West2022)) which the Board cited to enter closed session.\nSpecifically,\nalleges that the Board improperly discussed the following three matters:\n15 ILCS 120/3.5(e) ( West 2022).\n\n\fMr. Richard Superfine\nSeptember 18, 2024\nPage 2\nProcedures re amendments to Statements of Financial Interests[,]\" \" Mayor' s Program to Make\nPrepaid Gas and Transit Cards Publicly Available[,]\" and \" Ward newsletters[.]\" 2\nfurther\nalleges that these three items are outside the scope of the exceptions in sections 2(c)(1) and\n2(c)(4) of OMA. 3\nOn July 19, 2022, this office sent a copy of the Request for Review to the Board\nand asked it to provide a detailed written response to the allegation in the Request for Review\nThis office also requested copies of the closed session meeting minutes and the closed session\nverbatim recording of the May 16, 2022, meeting. The Board responded on September 13, 2022.\nOn that date, this office forwarded a copy of the Board' s response to\nhe did not reply.\nOn November 15, 2022, the Board furnished us with a copy of the written closed session meeting\nminutes and the audio recording.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 4 Section 2(a) of OMA 5 provides that all\nmeetings of a public body shall be open to the public unless the subject of discussion falls within\none of the exceptions set out in subsection 2(c) of OMA.\nSection 2(c)(1) of OMA\nSection 2(c)(1) of OMA permits a public body to hold a closed session to discuss,\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" as well as specified independent contractors or volunteers and legal counsel of the\npublic body.\nIn its answer to this office, the Board asserted that section 2(c)(1) of OMA allows\npublic bodies to engage in \"discussions centered around specific individuals and allegations that\n\n2Letter from\nJuly 13, 2022), at [ 1].\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney General\n\n3In his Request for Review,\nsession minutes, is inapplicable to our analysis.\n45 ILCS 120/1 (West 2022).\n55 ILCS 120/2(a) ( West 2022).\n\nnotes that section 2(c)(21), which applies to reviews of closed\n\n\fMr. Richard Superfine\nSeptember 18, 2024\nPage 3\nthe individuals failed to properly disclose certain activity or engaged in prohibited activity.\" 6\nHowever, under section 2(b) of OMA, 7 exceptions are to be \" strictly construed, extending only\nto subjects clearly within their scope.\" The plain language of section 2(c)(1) of OMA is limited\nto \" specific employees\" and specified independent contractors or volunteers and legal counsel of\na public body; it does not encompass elected officials. In a binding opinion, the Attorney\nGeneral concluded that section 2(c)(1) does not apply to elected officials. Ill. Att'y Gen. Pub.\nAcc. Op. No. 17-023, issued November 21, 2017, at 4 (\" Because elected members of a Village\nBoard are occupants of a public office, not 'employees' of public bodies, section 2(c)(1) would\nnot have provided a basis for the Board to close a meeting to discuss the conduct of a Board\nmember.\"). Accordingly, the Board improperly relied on section 2(c)(1) to discuss the financial\ninterest statements, pre-paid gas cards and ward newsletters during its May 16, 2022, closed\nsession.\nSection 2(c)( 4) of OMA\nAs noted above, the Board also cited 2(c)(4) of OMA as a basis for entering\nclosed session during its May 16, 2022, meeting. Section 2(c)(4) of OMA allows a public body\nto discuss in a closed meeting, \"[ e] vidence or testimony presented in open hearing, or in closed\nhearing where specifically authorized by law, to a quasi- adjudicative body, as defined in this\nAct, provided that the body prepares and makes available for public inspection a written decision\nsetting forth its determinative reasoning.\" ( Emphasis added.) Section 2(d) of OMA 8 defines\nquasi- adjudicative body as \" an administrative body charged by law or ordinance with the\nresponsibility to conduct hearings, receive evidence or testimony and make determinations based\nthereon, but does not include local electoral boards when such bodies are considering petition\nchallenges.\"\nThe Municipal Code of the City of Chicago ( Municipal Code) charges the Board\nwith, among other things, the authority to conduct hearings, receive evidence, and issue opinions\non whether certain conduct violated the City's ethics ordinances. 9 When the inspector general\nasks the Board to make a probable cause finding, the Municipal Code authorizes the Board to\nhold a meeting to discuss the evidence and provide the subject an opportunity to respond;\n\n6Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, City of Chicago, to Grace\nAngelos, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, ( September 13,\n2023), at 5.\n75 ILCS 120/2(b) (West 2022).\n85 ILCS 120/2(d) (West 2022).\n9Chicago Municipal Code § 2-156- 392 ( 2024).\n\n\fMr. Richard Superfine\nSeptember 18, 2024\nPage 4\nrecords of the meeting shall be kept confidential to the extent allowable under applicable law.\" 10\nIf the Board chooses to pursue an action for a fine, \"[ a] hearing on the merits shall be held in a\nclosed session, to the extent allowable under applicable law, before a hearing officer.\" 11 In\nperforming those duties, the Board functions as a quasi- adjudicative body.\nIn its response, the Board asserts that the topics of the closed session discussion\nwere \" appropriately considered under [ s] ection 2(c)(4) regarding information that was relayed to\nthe [ Board] through testimony versus through other means.\" 12 The Board argues that because it\noversees financial statements has the authority to assess penalties against those who fail to\ncomply, and to levy sanctions with respect to individuals engaging in prohibited political\nactivity, its discussions regarding statements of financial interest, prepaid gas and transit cards,\nand ward newsletters, were proper.\nIn his Request for Review,\nargues that section 2(c)(4) does not permit the\nBoard to hold the particular discussions it had on those topics in closed session:\nSince the Board is a quasi- adjudicative body, it may invoke\nthe section 2(c)(4) exception to hold a closed session, but only\nwhen two conditions are met: ( 1) there is \" evidence or testimony\npresented in open hearing, or in closed hearing where specifically\nauthorized by law\", and ( 2) the Board \" prepares and makes\navailable for public inspection a written decision setting forth its\ndeterminative reasoning\".[ 13]\nRequest for Review asserts that the Board' s May 16, 2022, meeting did not satisfy\neither of those conditions with respect to those topics.\nBlack' s Law Dictionary defines an \" adjudication\" as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" 14 Black' s Law Dictionary defines\nevidence\" as \" something ( including testimony, documents, and tangible objects) that tends to\n10Chicago Municipal Code § 2-156-385( 3) ( 2024).\n11Chicago Municipal Code § 2-156-392( a)( 1) (2024).\n12Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, City of Chicago, to Grace\nAngelos, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, ( September 13,\n2023), at 5.\n13Letter from\nJuly 13, 2022), at [3].\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney General\n\n14Black' s Law Dictionary 52 (11th ed. 2019).\n\n\fMr. Richard Superfine\nSeptember 18, 2024\nPage 5\nprove or disprove the existence of an alleged fact; anything presented to the senses and offered to\nprove the existence or nonexistence of a fact[.]\" 15\nThis office' s review of the closed session recording and minutes does indicate that\nevidence was presented to the Board with regard to the ward newsletters and the statement of\nfinancial interests. The Board did not, however, consider an inspector general' s request for a\nprobable cause finding or hold a hearing on the merits while pursuing a fine, nor was there any\nindication that the Board intended to prepare or make \" available for public inspection a written\ndecision setting forth its determinative reasoning.\" The brief discussion about prepaid gas cards\ndid not involve the Board receiving evidence in the course of pursuing an action for a fine or\notherwise functioning as a quasi- adjudicative body that would issue a written explanation\ndescribing its reasoning. Instead, the discussions on all three topics consisted of the Board' s and\nstaff's general opinions and recommendations about how to address those issues in a nonadjudicatory manner and absent specific request to determine whether specific individuals\nviolated the City’ s ethics ordinance. Accordingly, the Board' s discussion of the financial interest\nstatements, the pre-paid gas cards, and the ward newsletters were beyond the scope of the section\n2(c)(4) exception. To remedy this violation, this office requests the Board disclose the portions\nof the minutes and verbatim recording of its May 16, 2022, closed session that pertained to\nfinancial statements, gas cards and ward newsletters\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at Matthew. Rogina@ilag. gov.\nVery truly yours,\n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n72604 o 2c1 improper 2c4 improper mun\nCc:\n\nVia electronic mail\nMr. Steven I. Berlin\nExecutive Director\n15Black' s Law Dictionary 697 (11th ed. 2019).\n\n\fMr. Richard Superfine\nSeptember 18, 2024\nPage 6\nChicago Board of Ethics\n740 North Sedgwick, Suite 500\nChicago, Illinois 60654\nSteve. berlin@cityofchicago. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of financial statements, transit cards, and newsletters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72604/","full_text":"September 18, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard Superfine\nLegal Counsel\nCity of Chicago Board of Ethics\n740 North Sedgwick\nChicago, Illinois 60654\nrichard. superfine@cityofchicago. org\nRE: OMA Request for Review – 2022 PAC 72604\nDear\n\nand Mr. Superfine:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). For the reasons that follow, the Public Access Bureau concludes that the City of\nChicago Board of Ethics (Board) violated OMA at its May 16, 2022, meeting.\n1\n\nBACKGROUND\nOn July 13, 2022,\nsubmitted a Request for Review alleging that\nduring the closed session portion of its May 16, 2022, meeting, the Board improperly discussed\nmatters beyond the scope of the exceptions in sections 2(c)(1), 2(c)(4) and 2(c)(21) of OMA (5\nILCS 120/ 2(c)(1), (c)(4), (c)(21) (West2022)) which the Board cited to enter closed session.\n\nProcedures re amendments to Statements of Financial Interests[,]\" \" Mayor's Program to Make\nPrepaid Gas and Transit Cards Publicly Available[,]\" and \" Ward newsletters[.]\" 2\nfurther\nalleges that these three items are outside the scope of the exceptions in sections 2(c)(1) and\n2(c)(4) of OMA. 3\nOn July 19, 2022, this office sent a copy of the Request for Review to the Board\nand asked it to provide a detailed written response to the allegation in the Request for Review\nThis office also requested copies of the closed session meeting minutes and the closed session\nverbatim recording of the May 16, 2022, meeting. The Board responded on September 13, 2022.\nOn that date, this office forwarded a copy of the Board's response to\nhe did not reply.\nOn November 15, 2022, the Board furnished us with a copy of the written closed session meeting\nminutes and the audio recording.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 4 Section 2(a) of OMA 5 provides that all\nmeetings of a public body shall be open to the public unless the subject of discussion falls within\none of the exceptions set out in subsection 2(c) of OMA.\nSection 2(c)(1) of OMA\nSection 2(c)(1) of OMA permits a public body to hold a closed session to discuss,\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" as well as specified independent contractors or volunteers and legal counsel of the\npublic body.\nIn its answer to this office, the Board asserted that section 2(c)(1) of OMA allows\npublic bodies to engage in \"discussions centered around specific individuals and allegations that\n\n2 Letter from\nJuly 13, 2022), at [ 1].\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney General\n\nthe individuals failed to properly disclose certain activity or engaged in prohibited activity.\" 6\nHowever, under section 2(b) of OMA, 7 exceptions are to be \" strictly construed, extending only\nto subjects clearly within their scope.\" The plain language of section 2(c)(1) of OMA is limited\nto \" specific employees\" and specified independent contractors or volunteers and legal counsel of\na public body; it does not encompass elected officials. In a binding opinion, the Attorney\nGeneral concluded that section 2(c)(1) does not apply to elected officials. Ill. Att'y Gen. Pub.\nAcc. Op. No. 17-023, issued November 21, 2017, at 4 (\" Because elected members of a Village\nBoard are occupants of a public office, not 'employees' of public bodies, section 2(c)(1) would\nnot have provided a basis for the Board to close a meeting to discuss the conduct of a Board\nmember.\"). Accordingly, the Board improperly relied on section 2(c)(1) to discuss the financial\ninterest statements, pre-paid gas cards and ward newsletters during its May 16, 2022, closed\nsession.\nSection 2(c)(4) of OMA\nAs noted above, the Board also cited 2(c)(4) of OMA as a basis for entering\nclosed session during its May 16, 2022, meeting. Section 2(c)(4) of OMA allows a public body\nto discuss in a closed meeting, \"[ e] vidence or testimony presented in open hearing, or in closed\nhearing where specifically authorized by law, to a quasi- adjudicative body, as defined in this\nAct, provided that the body prepares and makes available for public inspection a written decision\nsetting forth its determinative reasoning.\" (Emphasis added.) Section 2(d) of OMA 8 defines\nquasi- adjudicative body as \" an administrative body charged by law or ordinance with the\nresponsibility to conduct hearings, receive evidence or testimony and make determinations based\nthereon, but does not include local electoral boards when such bodies are considering petition\nchallenges.\"\nThe Municipal Code of the City of Chicago (Municipal Code) charges the Board\nwith, among other things, the authority to conduct hearings, receive evidence, and issue opinions\non whether certain conduct violated the City's ethics ordinances. 9 When the inspector general\nasks the Board to make a probable cause finding, the Municipal Code authorizes the Board to\nhold a meeting to discuss the evidence and provide the subject an opportunity to respond;\n\n6 Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, City of Chicago, to Grace\nAngelos, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, (September 13,\n\nrecords of the meeting shall be kept confidential to the extent allowable under applicable law.\" 10\nIf the Board chooses to pursue an action for a fine, \"[ a] hearing on the merits shall be held in a\nclosed session, to the extent allowable under applicable law, before a hearing officer.\" 11 In\nperforming those duties, the Board functions as a quasi- adjudicative body.\nIn its response, the Board asserts that the topics of the closed session discussion\nwere \" appropriately considered under [ s] ection 2(c)(4) regarding information that was relayed to\nthe [ Board] through testimony versus through other means.\" 12 The Board argues that because it\noversees financial statements has the authority to assess penalties against those who fail to\ncomply, and to levy sanctions with respect to individuals engaging in prohibited political\nactivity, its discussions regarding statements of financial interest, prepaid gas and transit cards,\nand ward newsletters, were proper.\nIn his Request for Review,\nargues that section 2(c)(4) does not permit the\nBoard to hold the particular discussions it had on those topics in closed session:\nSince the Board is a quasi- adjudicative body, it may invoke\nthe section 2(c)(4) exception to hold a closed session, but only\nwhen two conditions are met: (1) there is \" evidence or testimony\npresented in open hearing, or in closed hearing where specifically\nauthorized by law\", and (2) the Board \" prepares and makes\navailable for public inspection a written decision setting forth its\ndeterminative reasoning\".[ 13]\nRequest for Review asserts that the Board's May 16, 2022, meeting did not satisfy\neither of those conditions with respect to those topics.\nBlack's Law Dictionary defines an \" adjudication\" as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" 14 Black's Law Dictionary defines\nevidence\" as \" something (including testimony, documents, and tangible objects) that tends to\n10 Chicago Municipal Code § 2-156-385(3) (2024).\n11 Chicago Municipal Code § 2-156-392(a)(1) (2024).\n12 Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, City of Chicago, to Grace\nAngelos, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, (September 13,\n\nprove or disprove the existence of an alleged fact; anything presented to the senses and offered to\nprove the existence or nonexistence of a fact[.]\" 15\nThis office's review of the closed session recording and minutes does indicate that\nevidence was presented to the Board with regard to the ward newsletters and the statement of\nfinancial interests. The Board did not, however, consider an inspector general's request for a\nprobable cause finding or hold a hearing on the merits while pursuing a fine, nor was there any\nindication that the Board intended to prepare or make \" available for public inspection a written\ndecision setting forth its determinative reasoning.\" The brief discussion about prepaid gas cards\ndid not involve the Board receiving evidence in the course of pursuing an action for a fine or\notherwise functioning as a quasi- adjudicative body that would issue a written explanation\ndescribing its reasoning. Instead, the discussions on all three topics consisted of the Board's and\nstaff's general opinions and recommendations about how to address those issues in a nonadjudicatory manner and absent specific request to determine whether specific individuals\nviolated the City’ s ethics ordinance. Accordingly, the Board's discussion of the financial interest\nstatements, the pre-paid gas cards, and the ward newsletters were beyond the scope of the section\n2(c)(4) exception. To remedy this violation, this office requests the Board disclose the portions\nof the minutes and verbatim recording of its May 16, 2022, closed session that pertained to\nfinancial statements, gas cards and ward newsletters\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at Matthew. Rogina@ilag. gov.\nVery truly yours,\n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n72604 o 2c1 improper 2c4 improper mun\n\nChicago Board of Ethics\n740 North Sedgwick, Suite 500\nChicago, Illinois 60654\nSteve. berlin@cityofchicago. org"}
{"id":1392,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-10-28","case_number":null,"request_numbers":["73114"],"title":"Village of West Salem Board violated OMA on ordinance notice, not on removal of public member","filename":"73114, issued October 28, 2022.pdf","rel_path":null,"word_count":3363,"summary":"A citizen alleged the Village of West Salem Board of Trustees improperly removed him from a meeting and failed to provide proper notice for final actions taken. The PAC determined the removal was not a violation but found the Board violated the OMA by taking final action on an item not listed on the meeting agenda.","plain_summary":"A resident complained that he was removed from a Village Board meeting and that the Board voted on an ordinance that was not clearly described on the meeting agenda. The Attorney General's office reviewed the complaint and found that it could not conclude the Board violated the Open Meetings Act by removing the resident, because his comments disrupted the meeting. The office also found that the Board failed to provide adequate advance notice of the final action taken on the ordinance, but the document cuts off before stating any conclusion or remedy regarding that issue.","holding":"","legal_question":"Did the Board violate the Open Meetings Act by removing a member of the public from a meeting and by taking final action on a matter not included in the meeting agenda?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of West Salem Board of Trustees","requesting_party":"Darrin K. Rice","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board took final action on fire department ordinance amendments that were not listed on the meeting agenda.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/73114, issued October 28, 2022.pdf","sha256":"61776f5877a3e3301e51c1aa48f332a1580912083126f5de4cf7d62bbe7b9a97","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public comment","final action","meeting notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 28, 2022\n\nVia electronic mail\n\nThe Honorable Dan Baker\nPresident, Board of Trustees\nVillage of West Salem\n[street address redacted for site publication -- see original PDF]\nRE: OMA Request for Review – 2022 PAC 73114\nDear\n\nand Mr. Baker:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) ( 5 ILCS 120/ 3.5 (West 2020)). For the reasons that follow, the Public Access\nBureau is unable to conclude that the Village of West Salem Board of Trustees ( Board) violated\nOMA when it removed\nfrom its August 15, 2022, special meeting. The Board,\nhowever, failed to provide adequate advance notice of a final action taken at the meeting.\nBACKGROUND\nOn August 19, 2022,\nsubmitted a Request for Review\nalleging that at its August 15, 2022, special meeting, the Board improperly removed him from\nthe meeting without a valid basis.\nmade the following arguments regarding his\nremoval: ( 1) despite speaking outside the allotted time for public comment, his comments were\nbrief and did not disrupt public business; ( 2) Village President Baker violated Board rules\nregarding public comment by removing him from the meeting; ( 3) others at the meeting spoke\noutside the time allotted for public comment and were not removed; and ( 4) public comment\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 2\n\noutside of the time period allotted for public comment has been allowed at virtually every\nprevious meeting of the Board.\nalso alleged that the Board failed to sufficiently identify on its\nmeeting agenda the general subject matter of an ordinance on which the Board took final action\nat that same meeting. Specifically,\ncited agenda item B, which states:\nDiscussion and/ or Determination of Ordinance 2022- 08; an ordinance amending Chapter 30\nArticle III – Fire Department.\" 1\nalleged:\nItem B on the agenda for the Aug. 15 meeting does not provide any\ninformation regarding the general subject matter of the ordinance\nthat was to be amended during the meeting. The agenda only\nlisted the title of the ordinance, giving the public no advanced\nknowledge of what action the board was considering.[ 2]\nOn August 26, 2022, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board' s President, Dan Baker, and asked him to provide copies of the Board' s\nAugust 15, 2022, meeting agenda, minutes, audio or video recordings, and the ordinance that\nreferenced for the agenda item in question. This office also asked the Board to\nrespond in writing to\nOMA allegations, addressing\nremoval from\nthe meeting and the claim that the agenda item did not provide sufficient advance notice of the\ngeneral subject matter of that final action. The Public Access Bureau received the requested\nmaterials from the Board' s attorney on September 12, 2022. On September 13, 2022, the Public\nAccess Bureau forwarded a copy of the Board' s answer to\ndid\nnot provide a written reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\n\n1Village of West Salem Board of Trustees, Agenda Item B, Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department ( August 15, 2022).\n2E-mail from\nAugust 19, 2022).\n\nto Public Access [ Bureau, Office of the Attorney General]\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 3\n\nMeeting Openness\nSection 1 of OMA (5 ILCS 120/ 1 et seq. ( West 2020)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\"\nframed his allegation as a public comment violation\nunder section 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2020)), which provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nand the Board do not dispute, however, that\nthe comments giving rise to\nremoval occurred outside the time period allotted for\npublic comment. Thus, the matter at hand is not public comment, and the Board' s public\ncomment rules do not govern this matter. Rather, the relevant question is whether the Board\nimproperly removed\nfor disrupting the business portion of the meeting. This\noffice therefore construed\nRequest for Review as alleging a violation of section\n2.01 of OMA (5 ILCS 120/ 2.01 (West 2020)), which provides that \"[ a] ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" ( Emphasis added.) To uphold the ability to have an open meeting, the head of a\npublic body may take measures to preserve decorum and ensure that a meeting is conducted in an\norderly and efficient manner. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 53888, issued\nApril 30, 2020, at 4 (\"[ T]he head of a public body has the authority and responsibility to run a\ncivil and businesslike meeting, including the inherent authority to put a stop to conduct that\ninterferes with the orderly conduct of a meeting.\").\nIn its response to this office, the Board explained that during the meeting' s public\ncomment period,\ninaccurately stated of the ordinance: \" You're really not\nsupposed bring it up and pass it that same meeting. You're supposed to show it to us and then\napprove it or disapprove it next meeting after people have a chance to read it.\"3 The Board\ncontended that these comments caused confusion with Trustee Jackson as he asked counsel for\nclarification later in the meeting during the vote on the agenda item in question. 4 The Board\nasserted that when it was considering the other item on the agenda— police policies— the\nfollowing occurred:\n\n3Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] ( September 12, 2022), at 2.\n4Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] ( September 12, 2022), at 2.\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 4\n\nTrustee Bradham found some typographical errors that rendered\nthe entire policy ( in his opinion) \" wrong\". And Trustee Bradham\nmade the statement that the Board can go ahead and vote on\nsomething that was wrong.\nblurted out, \" What' s\nwrong?\" and was warned not to speak out while the Board was\nconducting the meeting and was in the middle of a vote ( there had\nbeen a Motion and second and the Mayor called for a roll-call vote\nwhen Trustee Bradham asked for further discussion; this is when\nmade his interruption).[ 5]\nThe Board additionally asserted that later in the meeting:\nWhen the Board was considering the Fire Department\nOrdinance, and while they were in the middle of voting on this\nsecond matter ( there had been a Motion and a second and the\nMayor called for a roll-call vote),\nblurted out again:\nYou can't vote on it tonight\".\nTo which the Mayor stated, \" No\nand\ncontinued talking. At this point, the Mayor asked a\npolice officer to have\nremoved.[ 6]\nThe Board argued that \"[ a] t issue is not a person that was muttering something to the person\nsitting next to him. The Board was in the process of trying to vote on the Fire Department\nOrdinance. And\nwas trying to interfere with the vote.\" 7\nIn his Request for Review,\nargued that his comments while the\nBoard was conducting public business were brief and not disruptive. Referencing a Board rule\nconcerning public comment,\nclaimed that:\n\n5Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( September 12, 2022), at 3.\n6Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( September 12, 2022), at 3.\n7Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( September 12, 2022), at 3.\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 5\n\nVillage President Baker did use his gavel and say my name\nas I was speaking: but he also ordered a village police officer to\nremove me from the meeting almost immediately after doing so.\nThere was no clear explanation as to why he was using his gavel\nand addressing me, so I would argue that this wouldn' t even\nqualify as a \" call to order,\" although admittedly that language isn't\nproperly defined in the rules set by the board. Regardless, Village\nPresident Baker didn't allow for enough time to see if \"such\nconduct\" would continue before ordering my expulsion.\nAlso regarding Rule 3, the penalty referenced for its\nviolation dictates that I would be \" barred from further audience\"\nwith the board for the remaining duration of the meeting. I\ninterpret this to mean that I would no longer be allowed to address\nthe board after violating the rule multiple times. Neither Rule 3\nnor any other section of the board' s public comments rules\nspecifies the terms dictating the removal of a member of the public\nfrom a public meeting.[ 8]\nalso argued that multiple people can be heard on the recording addressing the\nBoard outside of the allotted time for public and that public comment, outside of the allotted time\nfor public comment, has been allowed at virtually every previous meeting of the Board.\nThis office reviewed the meeting minutes and the audio recording of the August\n15, 2022, meeting and is unable to conclude that the Board violated OMA when it removed\nfrom the meeting.\nwas afforded an opportunity to address the Board\nduring the public comment period, then later spoke outside of the allotted time for public\ncomment, at which time the Board' s public comment rules no longer applied. Although\ncomments were not necessarily abusive, harassing, defamatory, nor directed at any\nBoard member specifically, they occurred during a period of time when the Board was\nconducting business. It is clear from the audio that such comments did cause some confusion\nwith a Trustee. Regardless of the duration of\ncomments, they disrupted the\nbusiness of the Board and the head of the public body may take measures to preserve the\ndecorum and ensure that the business of the Board can be conducted. Here, Village President\nBaker did gavel and request that\nbe removed after he was warned two times not\nto speak outside of the public comment period. Whether other attendees spoke outside of the\npublic comment period and were not removed for such conduct is outside the scope of this\n8E-mail from\nAugust 19, 2022).\n\nto Public Access [ Bureau, Office of the Attorney General]\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 6\n\noffice' s review. Similarly, whether public comment occurred outside of the time period allotted\nfor public comment at prior Board meetings is outside the scope of this office's review. This\noffice' s review is limited to the alleged OMA violation at the August 15, 2022, Board meeting,\nand this office finds no violation of section 2.01 of OMA under these circumstances.\nNonetheless, the Office of the Public Access Counselor is charged with providing\nadvice and education to both public officials and the public. See 15 ILCS 205/ 7(a), ( b), (c)\nWest 2020). To that end, the Board should be mindful to enforce its rules consistently for all\nmeeting attendees. To do otherwise may cause confusion and increase the likelihood of\ndisruptive conduct during Board meetings.\nNotice of Final Action\nSection 2.02(c) of OMA ( 5 ILCS 120/ 2.02(c) ( West 2020)) provides that \"[ a] ny\nagenda required under this Section shall set forth the general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\" OMA does not define the term\ngeneral subject matter.\" However, the Senate debate on House Bill No. 4687, which, as Public\nAct 97-827, effective January 1, 2013, added section 2.02(c) of OMA, indicates that the General\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific\nthey needed to be to the public of what they were going\nto discuss that would be final action. And this just says\nthat you have to have a * * * general notice if you're\ngoing to have and take final action, as to generally what's\ngoing to be discussed so that – that people who follow\ntheir units of local government know what they're going\nto be acting upon. Remarks of Sen. Dillard, May 16,\n2012, Senate Debate on House Bill No. 4687, at 47.\nThe Attorney General has issued a binding opinion concluding that an agenda item that merely\nidentifies an ordinance and city code provision by their numbers is insufficient to provide notice\nof final action under section 2.02(c). Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November\n13, 2019, at 6 (finding that for an ordinance raising permit application fees from $100 to $500,\nat a minimum, the agenda should have indicated that the Council would consider an ordinance\namending the City Code and concerning permit application fees.\"). Similarly, in Binding\nOpinion 22-008 ( Ill. Att'y Gen. Pub. Acc. Op. No. 22-008, issued June 30, 2022, at 6), this office\nconcluded that the agenda item \" Discussion and vote on recommendation to the County Board\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 7\n\nregarding farming options for the County Farm\" failed to set forth the general subject matter of\nits votes concerning attaining crop insurance and borrowing money for crop expenses.\nAgain, the agenda item in question stated: \" Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department.\" 9 The\nminutes from the Board' s August 15, 2022, meeting indicate that:\nI]t was moved by Shonda Summerfield and seconded by April\nCampbell- Rickey to accept the revised fire ordinances with the\naddition of 30-3-2 under meetings that shall elect fire chief is not\nto be stricken out. Motion passed by Roll Call Vote: Ray- yea,\nMewes- nay, Jackson- nay, Bradham- nay, Rickey- yea, and\nSummerfield- yea. Mayor Baker broke the tie and voted to accept\nthe revised fire ordinances.[ 10]\nThe Board' s response to this office asserted that the agenda item concerning the\nFire Department ordinance provided sufficient advance notice. The Board likened the agenda\nitem at issue to the agenda item in Board of Education of Springfield School District No. 186 v.\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 ( 2017). The Board asserted:\nAt its essence, the Village set forth: Discussion/ determination of an\nordinance regarding the Fire Department. In the Board of\nEducation of Springfield District No. 186 [ case], \" general subject\nmatter\" is met where it lists \" approval of a resolution regarding a\nseparation agreement.\" The Agenda item and final action of the\nVillage ( on August 15, 2022) is more similar to Board of\nEducation of Springfield School District No. 186 than in PAC 22008.[ 11]\nThe Board' s comparison to the action the Board took in Board of Education of\nSpringfield School District No. 186 is misplaced. There, the agenda item was: \" Approval of a\nResolution regarding the Separation Agreement and Release between Superintendent Dr. Walter\nMilton, Jr., and the Board of Education.\" Board of Education of Springfield School District No.\n9Village of West Salem Board of Trustees, Agenda Item B, Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department ( August 15, 2022).\n10Village of West Salem Board of Trustees, Meeting, August 15, 2022, Minutes 4.\n11Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] ( September 12, 2022), at 6.\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 8\n\n186, 2017 IL 120343, ¶ 8, 77 N.E.3d at 628. This item specifically identified that the board was\nto take action regarding a specific agreement between the school board and a specific individual.\nThis office has reviewed Ordinance No. 2022- 08 and the amendments adopted pertaining to it at\nthe August 15, 2022, meeting. Here, the agenda item did not provide sufficient advance notice\nand identify the general subject matter of the action the Board took at its August 15, 2022,\nmeeting. Although the agenda identified a Chapter 30 and Article III in conjunction with the\nwords \" Fire Department,\" it was too vague and imprecise to provide any meaningful notice to the\npublic of what the Board was amending. A review of the audio and the amendments themselves\nreveals that the Board substantively altered, among other things, the appointment process of the\nFire Chief. Contrary to the Board' s assertion, the contested agenda item is more similar to the\ninsufficient agenda items in the binding opinions discussed above than the sufficient agenda item\nin Board of Education of Springfield School District No. 186 because the public had no\ninformation other than that action would take the form an \" amendment\" and that it would\nconcern the Fire Department.\nAlthough section 2.02(c) of OMA does not require the Board to specifically\nidentify each part of the ordinance to be amended, the fact that the Board' s action involved many\nsections does not relieve the Board of its obligation to describe on its agenda the general subject\nmatter of the action it intended to take. A member of the public reading the agenda in advance of\nthe Board' s August 15, 2022, meeting would not have had sufficient notice that the Board\nplanned to vote on comprehensive amendments to the Fire Department ordinance, including the\nprocess by which the Fire Chief is appointed.\nAccordingly, this office concludes that the Board improperly took final action\nduring its August 15, 2022, meeting without including the general subject matter of that action in\nthe Board' s meeting agenda. We request that the Board remedy its violation of section 2.02(c)\nby re-voting on the amendments to the extent possible after providing sufficient advance notice\nof the general subject matter of the amendments in a meeting agenda.\n\n\fThe Honorable Dan Baker\nOctober 28, 2022\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at (773) 590-6840 or matthew. goodman@ilag. gov if you have\nquestions or would like to discuss this matter. Thank you.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n73114 o 201 proper 202c improper mun\ncc:\n\nVia electronic mail\nMr. Darrin K. Rice\nAttorney at Law\n115 Northeast Third Street\nFairfield, Illinois 62837\ndarrinkrice@outlook. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Final action on unlisted fire department ordinance amendments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73114/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 28, 2022\n\nVia electronic mail\n\nThe Honorable Dan Baker\nPresident, Board of Trustees\nVillage of West Salem\n[street address redacted for site publication -- see original PDF]\nRE: OMA Request for Review – 2022 PAC 73114\nDear\n\nand Mr. Baker:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3.5 (West 2020)). For the reasons that follow, the Public Access\nBureau is unable to conclude that the Village of West Salem Board of Trustees (Board) violated\nOMA when it removed\nfrom its August 15, 2022, special meeting. The Board,\nhowever, failed to provide adequate advance notice of a final action taken at the meeting.\nBACKGROUND\nOn August 19, 2022,\nsubmitted a Request for Review\nalleging that at its August 15, 2022, special meeting, the Board improperly removed him from\nthe meeting without a valid basis.\nmade the following arguments regarding his\nremoval: (1) despite speaking outside the allotted time for public comment, his comments were\nbrief and did not disrupt public business; (2) Village President Baker violated Board rules\nregarding public comment by removing him from the meeting; (3) others at the meeting spoke\noutside the time allotted for public comment and were not removed; and (4) public comment\n\noutside of the time period allotted for public comment has been allowed at virtually every\nprevious meeting of the Board.\nalso alleged that the Board failed to sufficiently identify on its\nmeeting agenda the general subject matter of an ordinance on which the Board took final action\nat that same meeting. Specifically,\ncited agenda item B, which states:\nDiscussion and/ or Determination of Ordinance 2022- 08; an ordinance amending Chapter 30\nArticle III – Fire Department.\" 1\nalleged:\nItem B on the agenda for the Aug. 15 meeting does not provide any\ninformation regarding the general subject matter of the ordinance\nthat was to be amended during the meeting. The agenda only\nlisted the title of the ordinance, giving the public no advanced\nknowledge of what action the board was considering.[ 2]\nOn August 26, 2022, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board's President, Dan Baker, and asked him to provide copies of the Board's\nAugust 15, 2022, meeting agenda, minutes, audio or video recordings, and the ordinance that\nreferenced for the agenda item in question. This office also asked the Board to\nrespond in writing to\nOMA allegations, addressing\nremoval from\nthe meeting and the claim that the agenda item did not provide sufficient advance notice of the\ngeneral subject matter of that final action. The Public Access Bureau received the requested\nmaterials from the Board's attorney on September 12, 2022. On September 13, 2022, the Public\nAccess Bureau forwarded a copy of the Board's answer to\ndid\nnot provide a written reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\n\n1 Village of West Salem Board of Trustees, Agenda Item B, Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department (August 15, 2022).\n\nMeeting Openness\nSection 1 of OMA (5 ILCS 120/ 1 et seq. (West 2020)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\"\nframed his allegation as a public comment violation\nunder section 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2020)), which provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\"\nand the Board do not dispute, however, that\nthe comments giving rise to\nremoval occurred outside the time period allotted for\npublic comment. Thus, the matter at hand is not public comment, and the Board's public\ncomment rules do not govern this matter. Rather, the relevant question is whether the Board\nimproperly removed\nfor disrupting the business portion of the meeting. This\noffice therefore construed\nRequest for Review as alleging a violation of section\n2.01 of OMA (5 ILCS 120/ 2.01 (West 2020)), which provides that \"[ a] ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" (Emphasis added.) To uphold the ability to have an open meeting, the head of a\npublic body may take measures to preserve decorum and ensure that a meeting is conducted in an\norderly and efficient manner. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 53888, issued\nApril 30, 2020, at 4 (\"[ T]he head of a public body has the authority and responsibility to run a\ncivil and businesslike meeting, including the inherent authority to put a stop to conduct that\ninterferes with the orderly conduct of a meeting.\").\nIn its response to this office, the Board explained that during the meeting's public\ncomment period,\ninaccurately stated of the ordinance: \" You're really not\nsupposed bring it up and pass it that same meeting. You're supposed to show it to us and then\napprove it or disapprove it next meeting after people have a chance to read it.\"3 The Board\ncontended that these comments caused confusion with Trustee Jackson as he asked counsel for\nclarification later in the meeting during the vote on the agenda item in question. 4 The Board\nasserted that when it was considering the other item on the agenda— police policies— the\nfollowing occurred:\n\n3 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] (September 12, 2022), at 2.\n4 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] (September 12, 2022), at 2.\n\nTrustee Bradham found some typographical errors that rendered\nthe entire policy (in his opinion) \" wrong\". And Trustee Bradham\nmade the statement that the Board can go ahead and vote on\nsomething that was wrong.\nblurted out, \" What's\nwrong?\" and was warned not to speak out while the Board was\nconducting the meeting and was in the middle of a vote (there had\nbeen a Motion and second and the Mayor called for a roll-call vote\nwhen Trustee Bradham asked for further discussion; this is when\nmade his interruption).[ 5]\nThe Board additionally asserted that later in the meeting:\nWhen the Board was considering the Fire Department\nOrdinance, and while they were in the middle of voting on this\nsecond matter (there had been a Motion and a second and the\nMayor called for a roll-call vote),\nblurted out again:\nYou can't vote on it tonight\".\nTo which the Mayor stated, \" No\nand\ncontinued talking. At this point, the Mayor asked a\npolice officer to have\nremoved.[ 6]\nThe Board argued that \"[ a] t issue is not a person that was muttering something to the person\nsitting next to him. The Board was in the process of trying to vote on the Fire Department\nOrdinance. And\nwas trying to interfere with the vote.\" 7\nIn his Request for Review,\nargued that his comments while the\nBoard was conducting public business were brief and not disruptive. Referencing a Board rule\nconcerning public comment,\nclaimed that:\n\n5 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (September 12, 2022), at 3.\n6 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (September 12, 2022), at 3.\n7 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (September 12, 2022), at 3.\n\nVillage President Baker did use his gavel and say my name\nas I was speaking: but he also ordered a village police officer to\nremove me from the meeting almost immediately after doing so.\nThere was no clear explanation as to why he was using his gavel\nand addressing me, so I would argue that this wouldn' t even\nqualify as a \" call to order,\" although admittedly that language isn't\nproperly defined in the rules set by the board. Regardless, Village\nPresident Baker didn't allow for enough time to see if \"such\nconduct\" would continue before ordering my expulsion.\nAlso regarding Rule 3, the penalty referenced for its\nviolation dictates that I would be \" barred from further audience\"\nwith the board for the remaining duration of the meeting. I\ninterpret this to mean that I would no longer be allowed to address\nthe board after violating the rule multiple times. Neither Rule 3\nnor any other section of the board's public comments rules\nspecifies the terms dictating the removal of a member of the public\nfrom a public meeting.[ 8]\nalso argued that multiple people can be heard on the recording addressing the\nBoard outside of the allotted time for public and that public comment, outside of the allotted time\nfor public comment, has been allowed at virtually every previous meeting of the Board.\nThis office reviewed the meeting minutes and the audio recording of the August\n15, 2022, meeting and is unable to conclude that the Board violated OMA when it removed\nfrom the meeting.\nwas afforded an opportunity to address the Board\nduring the public comment period, then later spoke outside of the allotted time for public\ncomment, at which time the Board's public comment rules no longer applied. Although\ncomments were not necessarily abusive, harassing, defamatory, nor directed at any\nBoard member specifically, they occurred during a period of time when the Board was\nconducting business. It is clear from the audio that such comments did cause some confusion\nwith a Trustee. Regardless of the duration of\ncomments, they disrupted the\nbusiness of the Board and the head of the public body may take measures to preserve the\ndecorum and ensure that the business of the Board can be conducted. Here, Village President\nBaker did gavel and request that\nbe removed after he was warned two times not\nto speak outside of the public comment period. Whether other attendees spoke outside of the\n\noffice's review. Similarly, whether public comment occurred outside of the time period allotted\nfor public comment at prior Board meetings is outside the scope of this office's review. This\noffice's review is limited to the alleged OMA violation at the August 15, 2022, Board meeting,\nand this office finds no violation of section 2.01 of OMA under these circumstances.\nNonetheless, the Office of the Public Access Counselor is charged with providing\nadvice and education to both public officials and the public. See 15 ILCS 205/ 7(a), (b), (c)\nWest 2020). To that end, the Board should be mindful to enforce its rules consistently for all\nmeeting attendees. To do otherwise may cause confusion and increase the likelihood of\ndisruptive conduct during Board meetings.\nNotice of Final Action\nSection 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)) provides that \"[ a] ny\nagenda required under this Section shall set forth the general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\" OMA does not define the term\ngeneral subject matter.\" However, the Senate debate on House Bill No. 4687, which, as Public\nAct 97-827, effective January 1, 2013, added section 2.02(c) of OMA, indicates that the General\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific\nthey needed to be to the public of what they were going\nto discuss that would be final action. And this just says\nthat you have to have a * * * general notice if you're\ngoing to have and take final action, as to generally what's\ngoing to be discussed so that – that people who follow\ntheir units of local government know what they're going\nto be acting upon. Remarks of Sen. Dillard, May 16,\n2012, Senate Debate on House Bill No. 4687, at 47.\nThe Attorney General has issued a binding opinion concluding that an agenda item that merely\nidentifies an ordinance and city code provision by their numbers is insufficient to provide notice\nof final action under section 2.02(c). Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November\n13, 2019, at 6 (finding that for an ordinance raising permit application fees from $100 to $500,\nat a minimum, the agenda should have indicated that the Council would consider an ordinance\namending the City Code and concerning permit application fees.\"). Similarly, in Binding\nOpinion 22-008 (Ill. Att'y Gen. Pub. Acc. Op. No. 22-008, issued June 30, 2022, at 6), this office\n\nregarding farming options for the County Farm\" failed to set forth the general subject matter of\nits votes concerning attaining crop insurance and borrowing money for crop expenses.\nAgain, the agenda item in question stated: \" Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department.\" 9 The\nminutes from the Board's August 15, 2022, meeting indicate that:\nI]t was moved by Shonda Summerfield and seconded by April\nCampbell- Rickey to accept the revised fire ordinances with the\naddition of 30-3-2 under meetings that shall elect fire chief is not\nto be stricken out. Motion passed by Roll Call Vote: Ray- yea,\nMewes- nay, Jackson- nay, Bradham- nay, Rickey- yea, and\nSummerfield- yea. Mayor Baker broke the tie and voted to accept\nthe revised fire ordinances.[ 10]\nThe Board's response to this office asserted that the agenda item concerning the\nFire Department ordinance provided sufficient advance notice. The Board likened the agenda\nitem at issue to the agenda item in Board of Education of Springfield School District No. 186 v.\nAttorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625 (2017). The Board asserted:\nAt its essence, the Village set forth: Discussion/ determination of an\nordinance regarding the Fire Department. In the Board of\nEducation of Springfield District No. 186 [ case], \" general subject\nmatter\" is met where it lists \" approval of a resolution regarding a\nseparation agreement.\" The Agenda item and final action of the\nVillage (on August 15, 2022) is more similar to Board of\nEducation of Springfield School District No. 186 than in PAC 22008.[ 11]\nThe Board's comparison to the action the Board took in Board of Education of\nSpringfield School District No. 186 is misplaced. There, the agenda item was: \" Approval of a\nResolution regarding the Separation Agreement and Release between Superintendent Dr. Walter\nMilton, Jr., and the Board of Education.\" Board of Education of Springfield School District No.\n9 Village of West Salem Board of Trustees, Agenda Item B, Discussion and/ or Determination of\nOrdinance 2022- 08; an ordinance amending Chapter 30 Article III – Fire Department (August 15, 2022).\n10 Village of West Salem Board of Trustees, Meeting, August 15, 2022, Minutes 4.\n11 Letter from Darrin K. Rice, Fyie & Rice Law Office, LLC, to Matthew G. Goodman, Assistant\nAttorney General, Public Access Bureau, [ Office of the Attorney General] (September 12, 2022), at 6.\n\n186, 2017 IL 120343, ¶ 8, 77 N.E.3d at 628. This item specifically identified that the board was\nto take action regarding a specific agreement between the school board and a specific individual.\nThis office has reviewed Ordinance No. 2022- 08 and the amendments adopted pertaining to it at\nthe August 15, 2022, meeting. Here, the agenda item did not provide sufficient advance notice\nand identify the general subject matter of the action the Board took at its August 15, 2022,\nmeeting. Although the agenda identified a Chapter 30 and Article III in conjunction with the\nwords \" Fire Department,\" it was too vague and imprecise to provide any meaningful notice to the\npublic of what the Board was amending. A review of the audio and the amendments themselves\nreveals that the Board substantively altered, among other things, the appointment process of the\nFire Chief. Contrary to the Board's assertion, the contested agenda item is more similar to the\ninsufficient agenda items in the binding opinions discussed above than the sufficient agenda item\nin Board of Education of Springfield School District No. 186 because the public had no\ninformation other than that action would take the form an \" amendment\" and that it would\nconcern the Fire Department.\nAlthough section 2.02(c) of OMA does not require the Board to specifically\nidentify each part of the ordinance to be amended, the fact that the Board's action involved many\nsections does not relieve the Board of its obligation to describe on its agenda the general subject\nmatter of the action it intended to take. A member of the public reading the agenda in advance of\nthe Board's August 15, 2022, meeting would not have had sufficient notice that the Board\nplanned to vote on comprehensive amendments to the Fire Department ordinance, including the\nprocess by which the Fire Chief is appointed.\nAccordingly, this office concludes that the Board improperly took final action\nduring its August 15, 2022, meeting without including the general subject matter of that action in\nthe Board's meeting agenda. We request that the Board remedy its violation of section 2.02(c)\nby re-voting on the amendments to the extent possible after providing sufficient advance notice\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at (773) 590-6840 or matthew. goodman@ilag. gov if you have\nquestions or would like to discuss this matter. Thank you.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n73114 o 201 proper 202c improper mun\ncc:\n\nVia electronic mail\nMr. Darrin K. Rice\nAttorney at Law\n115 Northeast Third Street\nFairfield, Illinois 62837\ndarrinkrice@outlook. com"}
{"id":1394,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-11-04","case_number":null,"request_numbers":["73429"],"title":"Agenda for Shelby County Board's acting highway engineer appointment met OMA notice requirements","filename":"73429, issued November 4, 2022.pdf","rel_path":null,"word_count":2015,"summary":"The requester alleged that the Shelby County Board violated the Open Meetings Act by failing to provide adequate notice of a final action on its agenda. The PAC determined that the agenda item sufficiently described the general subject matter of the action taken.","plain_summary":"A citizen complained that a county board's meeting agenda was too vague to properly notify the public about a vote to appoint a new official. The Attorney General's office reviewed the agenda and decided it provided enough information for the public to understand what was being discussed. Therefore, the board followed the law and no further action was taken.","holding":"The Shelby County Board did not violate the Open Meetings Act regarding the notice provided for the appointment of an acting County Highway Engineer.","legal_question":"Whether the Shelby County Board's agenda item regarding the appointment of an acting County Highway Engineer satisfied the notice requirements of section 2.02(c) of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Shelby County Board","requesting_party":"Mr. John Kraft","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of an agenda item description regarding the appointment of an acting County Highway Engineer.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/73429, issued November 4, 2022.pdf","sha256":"3f6b8ec720c5458340e1d7ea5a3673db90cb997c93e431bad929c1e163e1c6f3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","agenda","Open Meetings Act","county board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 4, 2022\n\nVia electronic mail\nMr. John Kraft\nEdgar County Watchdogs\n[street address redacted for site publication -- see original PDF]\njohn@illinoisleaks. com\nVia electronic mail\nThe Honorable Bryon Coffman\nChairman, Shelby County Board\n301 East Main Street P.O. Box 230\nShelbyville, Illinois 62565\nbcoffman@shelbycounty- il.gov\nRE: FOIA Request for Review – 2022 PAC 73429\nDear Mr. Kraft and Mr. Coffman:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons set forth below, the Public Access\nBureau concludes that the Shelby County Board ( Board) did not violate OMA in connection with\nnotice of a final action taken at its September 8, 2022, meeting.\nBACKGROUND\nOn September 9, 2022, Mr. John Kraft submitted a Request for Review to the\nPublic Access Bureau alleging that the Board violated OMA during its September 8, 2022,\nmeeting when it took final action to appoint Mr. Dale Wetherell as the acting County Highway\nEngineer. In support of his allegation, referencing the Illinois Department of Transportation\nIDOT), Mr. Kraft claimed:\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. John Kraft\nThe Honorable Bryon Coffman\nNovember 4, 2022\nPage 2\n\nThe Shelby County Board listed item number 8 on its\nagenda with this exact language: \" Discussion and vote on the\nResolution to Request consent from IDOT (Form BLR 02130) to\nappoint Dale Wetherell as acting County Highway Engineer.\"\nWhat they actually voted on, as described by the chairman,\nwas the above agenda item AND the actual appointment of Dale\nWetherell as acting County Highway Engineer and the\nappointment being automatic upon approval of IDOT.\nThe plain language of the agenda item leads the public to\nbelieve the board was only going to ask IDOT for permission to\nappoint – not to actually appoint. ( Emphasis in original.)[ 1]\nMr. Kraft thus alleged a violation of section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)).\nOn October 13, 2022, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to Mr. Kraft's OMA allegations. In\nparticular, this office asked the Board to address the appointment process and whether Mr.\nWetherell was appointed at the September 8, 2022, meeting or whether his appointment occurred\nat a later date after the Board received the consent from IDOT. On October 21, 2022, this office\nreceived a response from the Shelby County State's Attorney on behalf of the Board. On\nOctober 25, 2022, this office forwarded a copy of the Board' s response to Mr. Kraft; he replied\nthat same day.\nDETERMINATION\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nSection 2.02(c) of OMA provides, in pertinent part: \" Any agenda required under\nthis Section shall set forth the general subject matter of any resolution or ordinance that will be\nthe subject of final action at the meeting.\" ( Emphasis added.) OMA does not contain a\ndefinition of \"general subject matter.\" However, the Senate debate on House Bill No. 4687,\n1E-mail from John Kraft, Edgar County Watchdogs, to AG PAC ( September 9, 2022).\n\n\fMr. John Kraft\nThe Honorable Bryon Coffman\nNovember 4, 2022\nPage 3\n\nwhich, as Public Act 97-827, effective January 1, 2013, added section 2.02(c) of OMA, indicates\nthat the General Assembly intended this provision to ensure that agendas provide general notice\nof all matters upon which a public body would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\ngeneral notice, if you're going to have and take final action, as\nto generally what's going to be discussed so that – that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has previously determined that \" the General Assembly' s use of the\nterm 'general subject matter' signifies that a meeting agenda must set forth the main element( s),\nrather than the specific details, of an item on which the public body intends to take final action.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that\nvoting to sign a new city administrator to a five-year contract under the agenda item\nAppointment of the City Administrator\" did not violate section 2.02(c) of OMA); see also Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 68059, issued April 19, 2022, at 4 (agenda item \" present bills for\nreview/ approval\" described general subject matter of public body's vote to raise maximum\npayment for two recurring bills). In contrast, this office concluded in another binding opinion\nthat the agenda item \" Communications and Reports: Committee on Programs and Recreation\"\nfailed to set forth the general subject matter of a vote to increase museum admission fees. Ill.\nAtt'y Gen. Pub. Acc. Op. No. 13-002, issued April 16, 2013, at 5.\nHere, the Board listed as part of item eight on its agenda that it would hold\ndiscussion and a vote on the resolution to request consent from IDOT to appoint Mr. Wetherell\nas acting County Highway Engineer. 2 State' s Attorney Nichole Kroncke responded to this\noffice' s inquiry letter by stating:\nIt is the position of the Shelby County Board that the\nSeptember 8, 2022 meeting agenda sufficiently described the\naction that was to be taken. The Board voted to approve IDOT's\nconsent to appoint Mr. Dale Wetherell as acting county engineer.\nThe appointment * * * was not finalized until September 26, 2022\n\n2Shelby County Board, Agenda Item 8, Discussion and vote on the Resolution to Request consent\nfrom IDOT (Form BLR 02130) to appoint Dale Wetherell as acting County Highway Engineer ( September 8, 2022).\n\n\fMr. John Kraft\nThe Honorable Bryon Coffman\nNovember 4, 2022\nPage 4\n\nwhen the Regional Engineer, Department of Transportation signed\nthe resolution 2022- 53.[ 3]\nState's Attorney Kroncke enclosed a letter from IDOT to the Shelby County Clerk dated\nSeptember 26, 2022, stating that the resolution was approved. 4 She also provided the enclosure\nto that letter— the resolution itself— which is on IDOT form BLR 02130 ( as the agenda item\nstated). 5 The resolution cites as its statutory basis section 5-204 of the Illinois Highway Code\n605 ILCS 5/5-204 ( West 2020)), which provides, in relevant part: \" Whenever the office of\ncounty superintendent of highways is vacant, the county board may with the consent in writing\nof [IDOT] appoint any competent person as acting county superintendent of highways until the\nvacancy is filled in the manner provided in Section 5-201.\" The language of the resolution\nappears somewhat contradictory, indicating that \" the County Board must request and receive\nconsent of [IDOT] before appointing an Acting County Engineer,\" and that because of an\nemergency the Board \" did on 09/08/22, appoint Dale Wetherell as Acting County Engineer.\" 6\nEmphasis added.)\nIn his reply, Mr. Kraft acknowledged that the Board explained before its vote on\nthe agenda item during its September 8, 2022, meeting that the appointment was contingent on\nIDOT' s approval. Nonetheless, he argued that \"[ t]he agenda item was to 'request consent from\nIDOT' not to 'approve IDOT' s consent' nor to actually appoint Wetherell pending IDOT' s\napproval.\" 7\nBecause the effective date of Mr. Wetherell' s appointment appeared unclear from\nthe language of the resolution, this office requested clarification and the State' s Attorney replied\nthat \" Mr. Wetherell assumed the duties of acting county engineer when IDOT consented /\napproved on September 26, 2022.\" 8 This office' s review of the open session recording of the\ndiscussion and vote also confirmed that the Board explained the two alternative outcomes of its\n3\"\n\nCounty superintendent of highways\" means the same thing as \" county engineer.\" 605 ILCS 5/5-\n\n201 ( West 2020).\n4Letter from Jeffrey P. Myers, P.E., Region Four Engineer, Illinois Department of Transportation,\nto Jessica Fox, Shelby County Clerk ( September 26, 2022).\n5Shelby County, Ill., Resolution no. 2022- 53 (filed September 26, 2022).\n6Shelby County, Ill., Resolution no. 2022- 53 (filed September 26, 2022).\n7E-mail from John Kraft to PAC ( October 25, 2022).\n8E-mail from Nichole Kroncke, Shelby County State's Attorney, to Matthew Goodman ( November\n3, 2022).\n\n\fr.John Kraft\nThe Honorable Bryon Coffman\nNovember 4, 2022\nPage 5\n\nvote on the resolution: if IDOT consented, Mr. Wetherell' s appointment would be effective, but\nif IDOT denied consent, his appointment would fail. 9 Likewise, the letter from IDOT to the\nShelby County Clerk dated September 26, 2022, substantiates these alternative possibilities.\nThe materials provided to this office indicate that the actual action the Board took\nat the September 8, 2022, meeting was the adoption of a resolution requesting IDOT' s consent to\nthe appointment of Mr. Wetherell as acting County Highway Engineer. The Board did not take\nfinal action to appoint Mr. Wetherell at the meeting because his appointment did not become\neffective and he did not assume the duties of acting county engineer until IDOT consented on\nSeptember 26, 2022. While the agenda item could have been clearer that the appointment\nrequired IDOT' s consent to take effect, it notified the public that the Board was seeking IDOT' s\nconsent to appoint Mr. Wetherell. At the time of the meeting, requesting IDOT's consent was the\nextent to which the Board could act in furtherance of the appointment, and the agenda clearly\nstated that the Board would consider doing so. This is not a situation where a public body posted\ninsufficient detail for the public to ascertain the general subject matter of a possible final action.\nSee, for example, Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November 13, 2019, at 6\nmerely listing the number of an ordinance without identifying any subject matter violated\nsection 2.02(c) of OMA). Rather, the public had notice and the opportunity to object to or to\nsupport Mr. Wetherell' s potential appointment. Accordingly, this office concludes that the Board\ndid not violate section 2.02(c) of OMA because the September 8, 2022, agenda provided the\ngeneral subject matter of the to the action it took to request consent to appoint Mr. Wetherell as\nacting County Highway Engineer.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (773)\n590-6840 or matthew. goodman@ilag. gov if you have questions or would like to discuss this\nmatter.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n73429 o 202c proper co\n9Shelby County Board, Open Meeting, September 8, 2022, Audio File, at 4:15 ( on file with Public\nAccess Bureau, Office of the Attorney General).\n\n\fMr. John Kraft\nThe Honorable Bryon Coffman\nNovember 4, 2022\nPage 6\n\ncc:\n\nVia electronic mail\nThe Honorable Nichole Kroncke\nShelby County State's Attorney\n301 East Main Street\nShelbyville, Illinois 62565\nstatesattorney@shelbycounty- il.gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda description of an acting highway engineer appointment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73429/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 4, 2022\n\nVia electronic mail\nMr. John Kraft\nEdgar County Watchdogs\n[street address redacted for site publication -- see original PDF]\njohn@illinoisleaks. com\nVia electronic mail\nThe Honorable Bryon Coffman\nChairman, Shelby County Board\n301 East Main Street P.O. Box 230\nShelbyville, Illinois 62565\nbcoffman@shelbycounty- il.gov\nRE: FOIA Request for Review – 2022 PAC 73429\nDear Mr. Kraft and Mr. Coffman:\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons set forth below, the Public Access\nBureau concludes that the Shelby County Board (Board) did not violate OMA in connection with\nnotice of a final action taken at its September 8, 2022, meeting.\nBACKGROUND\nOn September 9, 2022, Mr. John Kraft submitted a Request for Review to the\nPublic Access Bureau alleging that the Board violated OMA during its September 8, 2022,\nmeeting when it took final action to appoint Mr. Dale Wetherell as the acting County Highway\nEngineer. In support of his allegation, referencing the Illinois Department of Transportation\nIDOT), Mr. Kraft claimed:\n\nThe Shelby County Board listed item number 8 on its\nagenda with this exact language: \" Discussion and vote on the\nResolution to Request consent from IDOT (Form BLR 02130) to\nappoint Dale Wetherell as acting County Highway Engineer.\"\nWhat they actually voted on, as described by the chairman,\nwas the above agenda item AND the actual appointment of Dale\nWetherell as acting County Highway Engineer and the\nappointment being automatic upon approval of IDOT.\nThe plain language of the agenda item leads the public to\nbelieve the board was only going to ask IDOT for permission to\nappoint – not to actually appoint. (Emphasis in original.)[ 1]\nMr. Kraft thus alleged a violation of section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2020)).\nOn October 13, 2022, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response to Mr. Kraft's OMA allegations. In\nparticular, this office asked the Board to address the appointment process and whether Mr.\nWetherell was appointed at the September 8, 2022, meeting or whether his appointment occurred\nat a later date after the Board received the consent from IDOT. On October 21, 2022, this office\nreceived a response from the Shelby County State's Attorney on behalf of the Board. On\nOctober 25, 2022, this office forwarded a copy of the Board's response to Mr. Kraft; he replied\nthat same day.\nDETERMINATION\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nSection 2.02(c) of OMA provides, in pertinent part: \" Any agenda required under\nthis Section shall set forth the general subject matter of any resolution or ordinance that will be\n\nwhich, as Public Act 97-827, effective January 1, 2013, added section 2.02(c) of OMA, indicates\nthat the General Assembly intended this provision to ensure that agendas provide general notice\nof all matters upon which a public body would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\ngeneral notice, if you're going to have and take final action, as\nto generally what's going to be discussed so that – that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has previously determined that \" the General Assembly's use of the\nterm 'general subject matter' signifies that a meeting agenda must set forth the main element(s),\nrather than the specific details, of an item on which the public body intends to take final action.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that\nvoting to sign a new city administrator to a five-year contract under the agenda item\nAppointment of the City Administrator\" did not violate section 2.02(c) of OMA); see also Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 68059, issued April 19, 2022, at 4 (agenda item \" present bills for\nreview/ approval\" described general subject matter of public body's vote to raise maximum\npayment for two recurring bills). In contrast, this office concluded in another binding opinion\nthat the agenda item \" Communications and Reports: Committee on Programs and Recreation\"\nfailed to set forth the general subject matter of a vote to increase museum admission fees. Ill.\nAtt'y Gen. Pub. Acc. Op. No. 13-002, issued April 16, 2013, at 5.\nHere, the Board listed as part of item eight on its agenda that it would hold\ndiscussion and a vote on the resolution to request consent from IDOT to appoint Mr. Wetherell\nas acting County Highway Engineer. 2 State's Attorney Nichole Kroncke responded to this\noffice's inquiry letter by stating:\nIt is the position of the Shelby County Board that the\nSeptember 8, 2022 meeting agenda sufficiently described the\naction that was to be taken. The Board voted to approve IDOT's\nconsent to appoint Mr. Dale Wetherell as acting county engineer.\nThe appointment * * * was not finalized until September 26, 2022\n\n2 Shelby County Board, Agenda Item 8, Discussion and vote on the Resolution to Request consent\nfrom IDOT (Form BLR 02130) to appoint Dale Wetherell as acting County Highway Engineer (September 8, 2022).\n\nwhen the Regional Engineer, Department of Transportation signed\nthe resolution 2022- 53.[ 3]\nState's Attorney Kroncke enclosed a letter from IDOT to the Shelby County Clerk dated\nSeptember 26, 2022, stating that the resolution was approved. 4 She also provided the enclosure\nto that letter— the resolution itself— which is on IDOT form BLR 02130 (as the agenda item\nstated). 5 The resolution cites as its statutory basis section 5-204 of the Illinois Highway Code\n605 ILCS 5/5-204 (West 2020)), which provides, in relevant part: \" Whenever the office of\ncounty superintendent of highways is vacant, the county board may with the consent in writing\nof [IDOT] appoint any competent person as acting county superintendent of highways until the\nvacancy is filled in the manner provided in Section 5-201.\" The language of the resolution\nappears somewhat contradictory, indicating that \" the County Board must request and receive\nconsent of [IDOT] before appointing an Acting County Engineer,\" and that because of an\nemergency the Board \" did on 09/08/22, appoint Dale Wetherell as Acting County Engineer.\" 6\nEmphasis added.)\nIn his reply, Mr. Kraft acknowledged that the Board explained before its vote on\nthe agenda item during its September 8, 2022, meeting that the appointment was contingent on\nIDOT's approval. Nonetheless, he argued that \"[ t]he agenda item was to 'request consent from\nIDOT' not to 'approve IDOT's consent' nor to actually appoint Wetherell pending IDOT's\napproval.\" 7\nBecause the effective date of Mr. Wetherell's appointment appeared unclear from\nthe language of the resolution, this office requested clarification and the State's Attorney replied\nthat \" Mr. Wetherell assumed the duties of acting county engineer when IDOT consented /\napproved on September 26, 2022.\" 8 This office's review of the open session recording of the\ndiscussion and vote also confirmed that the Board explained the two alternative outcomes of its\n3\"\n\nCounty superintendent of highways\" means the same thing as \" county engineer.\" 605 ILCS 5/5-\n\n201 (West 2020).\n4 Letter from Jeffrey P. Myers, P.E., Region Four Engineer, Illinois Department of Transportation,\nto Jessica Fox, Shelby County Clerk (September 26, 2022).\n5 Shelby County, Ill., Resolution no. 2022- 53 (filed September 26, 2022).\n\nvote on the resolution: if IDOT consented, Mr. Wetherell's appointment would be effective, but\nif IDOT denied consent, his appointment would fail. 9 Likewise, the letter from IDOT to the\nShelby County Clerk dated September 26, 2022, substantiates these alternative possibilities.\nThe materials provided to this office indicate that the actual action the Board took\nat the September 8, 2022, meeting was the adoption of a resolution requesting IDOT's consent to\nthe appointment of Mr. Wetherell as acting County Highway Engineer. The Board did not take\nfinal action to appoint Mr. Wetherell at the meeting because his appointment did not become\neffective and he did not assume the duties of acting county engineer until IDOT consented on\nSeptember 26, 2022. While the agenda item could have been clearer that the appointment\nrequired IDOT's consent to take effect, it notified the public that the Board was seeking IDOT's\nconsent to appoint Mr. Wetherell. At the time of the meeting, requesting IDOT's consent was the\nextent to which the Board could act in furtherance of the appointment, and the agenda clearly\nstated that the Board would consider doing so. This is not a situation where a public body posted\ninsufficient detail for the public to ascertain the general subject matter of a possible final action.\nSee, for example, Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November 13, 2019, at 6\nmerely listing the number of an ordinance without identifying any subject matter violated\nsection 2.02(c) of OMA). Rather, the public had notice and the opportunity to object to or to\nsupport Mr. Wetherell's potential appointment. Accordingly, this office concludes that the Board\ndid not violate section 2.02(c) of OMA because the September 8, 2022, agenda provided the\ngeneral subject matter of the to the action it took to request consent to appoint Mr. Wetherell as\nacting County Highway Engineer.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (773)\n590-6840 or matthew. goodman@ilag. gov if you have questions or would like to discuss this\nmatter.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n73429 o 202c proper co\n9 Shelby County Board, Open Meeting, September 8, 2022, Audio File, at 4:15 (on file with Public\n\ncc:\n\nVia electronic mail\nThe Honorable Nichole Kroncke\nShelby County State's Attorney\n301 East Main Street\nShelbyville, Illinois 62565\nstatesattorney@shelbycounty- il.gov"}
{"id":1395,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-09-19","case_number":null,"request_numbers":["73450"],"title":"Village of Tinley Park Board of Trustees: no absolute right to attend closed sessions","filename":"73450, issued September 19, 2022.pdf","rel_path":null,"word_count":1480,"summary":"A Village Trustee alleged that the Village of Tinley Park Board of Trustees improperly excluded her from a closed session meeting. The PAC determined that OMA does not govern internal disputes between members of a public body and that no further action was warranted.","plain_summary":"A Village Trustee complained to the Attorney General that she was unfairly barred from a closed-door meeting of the Village Board. The Attorney General's office declined to intervene, explaining that the Open Meetings Act is designed to protect the public's right to know, not to resolve internal disagreements between elected officials. The office also noted that there are valid legal reasons, such as conflicts of interest, why a board might exclude a member from a specific discussion.","holding":"The PAC determined that the Open Meetings Act does not grant a public official an absolute right to participate in every closed session, and the matter was closed as it involved an internal dispute outside the scope of the Act.","legal_question":"Does the Open Meetings Act grant a member of a public body an inviolable right to participate in every closed session discussion?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Tinley Park Board of Trustees","requesting_party":"Diane Galante","pac_outcome":"Closed - no further action warranted","pac_law_type":null,"subject_category":"closed session","subject_description":"The exclusion of a Village Trustee from a closed session meeting of the Board of Trustees.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_f/73450, issued September 19, 2022.pdf","sha256":"73b0b9e8f60d9008a6f03bf2d8a720e86f4386c66add17ba2ce78cd94085b52d","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","internal dispute","public official rights","conflict of interest"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\nVia electronic\n\n19, 2022\n\nmail\n\nThe Honorable Diane Galante\n\nTrustee, Village of Tinley Park\n\nRE:\n\nOMA Request for Review — 2022 PAC 73450\n\nDear Ms. Galante:\nPursuant to section 3. 5( a) of the Open Meetings\n\nWest 2020)),\n\nAct ( OMA) ( 5 ILCS 120/ 3. 5( a)\n\nthe Public Access Bureau has received your Request for Review alleging that the\n\nBoard of Trustees ( Board) of the Village of Tinley Park improperly excluded you as a Village\nTrustee from a closed session on September\n\n6, 2022.\n\nThis office has determined\n\nthat no further\n\naction is warranted in this matter.\n\nIn your Request for Review, received September 9, 2022, you allege that the\nBoard has continued to exclude you from certain closed session discussions, referencing your\nprevious Request for Review concerning\n\nthe same\n\nsubject ( 2022\n\nPAC 72721).\n\nYou claim that\n\nthis new Request for Review warrants a different outcome from the determination that no further\naction\n\nwas\n\nwarranted in the previous matter,'\n\nbecause this time you make your allegation against\n\nthe Board as a whole, rather than just Mayor Glotz. The previous determination, however, also\nexplained that \"[ t]he provisions of OMA protect the public' s right to know about how public\nbodies conduct public business; OMA generally does not concern internal disputes between the\nmembers\nof a public body. i2 The determination further explained that, as a practical matter,\n\ncircumstances such as a conflict of interest may arise in which a public body could properly\n\nexclude a member from a closed session. 3 Nonetheless, you allege:\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022.\n2I11. Att' y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022, at 2.\n3l11. Att'y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022, at 2 ( citing Ill. Att' y Gen. Op. No.\n00- 004, issued March\n\n7, 2000, at 3- 4).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 •\n100 West Randolph Street, Chicago, Illinois 60601 • (\n601 South\n\nUniversity\n\nAve., Carbondale,\n\nIllinois\n\n62901 • (\n\nTTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n618) 529- 6400 •\n\nTI' Y: ( 877) 675- 9339 •\n\nFax: ( 618) 529- 6416\n\n\fThe Honorable Diane Galante\nSeptember 19, 2022\nPage 2\n\nOn September 6, 2022, the Village Board excluded me\n\nfrom participation in the \" closed meeting\" portion of the Village\nBoard meeting. When I asked under what authority I was to be\nexcluded and insisted that a vote be taken to approve removing me\nfrom Executive Session, the mayor and the other five trustees got\nup, and left the room for a private meeting, and had the Village\nAttorney stationed at the door. He told me I would not be allowed\nto participate in the operations of government. I believe he\nexcludes me from participation in my required duties because of\n\nour philosophical/ political differences. i41\nYou have not indicated which provision of OMA you believe this course of\nconduct violated. Rather, you argue that OMA \" obviously assumes the right to participation by\nelected public officials at the meetings of the public body.\" 5 You contend that section 2. 06( f) of\nOMA ( 5 ILCS 120/ 2. 06( f) (West 2021 Supp.)) makes this clear, claiming:\n\nIt would defy logic and the intent of the statute to infer any\nauthority on the part of the mayor to exclude me from participation\nin any authorized \" closed session\" considering that the statute\n\nmandates that I have access to the minutes of any portions of an\n\nopen meeting held as a \" closed session\". i61\nThe legal issue you have raised that is subject to review by this office is not the\nmayor' s authority to exclude you from the closed session, but whether the provisions of OMA\nguaranteed you the right to attend the closed session such that the Board violated OMA by\nexcluding you. Section 2. 06( f) of OMA provides, in relevant part:\n\nMinutes of meetings closed to the public shall be available\nonly after the public body determines that it is no longer necessary\n\nto protect the public interest or the privacy of an individual by\nkeeping them confidential, except that duly elected officials or\nappointed officials filling a vacancy of an elected office in a public\nbody shall be provided access to minutes of meetings closed to the\n4Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartels], Public Access\nCounselor, Office of the Attorney General ( September 9, 2022), at 1.\n\n5Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartelt], Public Access\nCounselor, Office of the Attorney General ( September 9, 2022), at 2.\n\n6Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartelt], Public Access\nCounselor,\n\nOffice of the\n\nAttorney\n\nGeneral (\n\nSeptember\n\n9, 2022),\n\nat\n\n2.\n\n\fThe Honorable Diane Galante\nSeptember 19, 2022\nPage 3\n\npublic. Access to minutes shall be granted in the public body' s\nmain office or official storage location, in the presence of a records\nsecretary, an administrative official of the public body, or any\nelected official of the public body. No minutes of meetings closed\nto the public shall be removed from the public body' s main office\nor official storage location, except by vote of the public body or by\ncourt order.\n\nBy its plain language, section 2. 06( f) grants duly elected officials access to the\npublic body' s past meeting minutes in a controlled process. Yet, it is conceivable that access\ncould be restricted if disclosing minutes to a member of a public body would defeat the purpose\nof a closed session discussion authorized by OMA. See Phoenix Bond & Indemnity Co. v.\nPappas, 194 I11. 2d 99, 107 ( 2000) ( A statute should not be construed in a way that would defeat\nits purpose \" or yield an absurd or unjust result.\").\nFor instance, in Hamilton v. Town of Los\nGatos, 213 Cal. App. 3d 1050, 261 Cal. Rptr. 888 ( 6th Dist. 1989), a city council member sought\n\naccess to the recording of a closed session discussion between the other members of the city\ncouncil and legal counsel, from which he was absent due to a conflict of interest. Similar to\nsection 2. 06( f) of OMA, section 54957. 2 of California' s open meetings statute, the Brown Act\nCal. Gov. Code § 54957. 2 ( West 1988))\n\nprovided that access to closed session recordings \" shall\nbody.\" Although the city council member argued\nthat he was entitled to inspect the recording pursuant to this provision, the court concluded that\nbe available\n\nonly to members\n\nof the legislative\n\nhe was properly denied access pursuant to ethics laws. Hamilton, 213 Cal. App. 3d at 1059, 261\nCal. Rptr. at 893.\n\nThe court explained:\n\nIn the case where a council member is disqualified\n\nfrom\n\nparticipation in a decision because of a financial conflict of\ninterest, it does not appear to be in the best interest of the town to\n\nhave that council member present at discussions between the\ncouncil and its attorney concerning that decision. The attorney, as\nwell as the other council members,\n\nmight not feel as free to\n\ndisclose everything necessary when a \" biased\" public official were\npresent. The council members and attorney might feel similarly\ninhibited where they are aware that a \" biased\" council member can\nlater obtain a tape recording of the attorney -council discussion.\nThe town might thus be denied effective assistance of counsel.\n\nHamilton, 213 Cal. App. 3d at 1059, 261 Cal. Rptr. at 893.\nWhether you have a conflict of interest, financial or otherwise, that would\npreclude you from participating in certain closed session discussions between the rest of the\nBoard and the Board' s attorney is, of course, beyond the scope of this office' s review. It suffices\nto state that neither\n\nsection\n\n2. 06( f) of OMA nor any\n\nother\n\nprovision\n\nof OMA grants a member of\n\n\fhe Honorable Diane Galante\nSeptember\n\n19, 2022\n\nPage 4\n\na public body an inviolable right to participate in every closed session discussion regardless of\nthe circumstances. Because your allegation, though related to OMA, is outside the scope of that\nstatute, this office has determined that no further action is warranted in this matter.\n\nThis letter serves to close this file. If you have any questions, please contact me\nat joshua. jones@ilag. gov.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic\n\n73450 o no fi war mun\n\ncc:\n\nVia electronic mail\nThe Honorable Michael Glotz\nMayor\n\nVillage of Tinley Park\n16250 South Oak Park Avenue\n\nTinley Park, Illinois 60477\nmglotz@tinleypark.\n\norg\n\nAccess\n\nBureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's exclusion of a trustee from closed session","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73450/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nSeptember\n\nVia electronic\n\n19, 2022\n\nmail\n\nThe Honorable Diane Galante\n\nTrustee, Village of Tinley Park\n\nRE:\n\nOMA Request for Review — 2022 PAC 73450\n\nDear Ms. Galante:\nPursuant to section 3. 5(a) of the Open Meetings\n\nWest 2020)),\n\nAct (OMA) (5 ILCS 120/ 3. 5(a)\n\nthe Public Access Bureau has received your Request for Review alleging that the\n\nBoard of Trustees (Board) of the Village of Tinley Park improperly excluded you as a Village\nTrustee from a closed session on September\n\n6, 2022.\n\nThis office has determined\n\nthat no further\n\naction is warranted in this matter.\n\nIn your Request for Review, received September 9, 2022, you allege that the\nBoard has continued to exclude you from certain closed session discussions, referencing your\nprevious Request for Review concerning\n\nthe same\n\nsubject (2022\n\nPAC 72721).\n\nYou claim that\n\nthis new Request for Review warrants a different outcome from the determination that no further\naction\n\nwas\n\nwarranted in the previous matter,'\n\nbecause this time you make your allegation against\n\nthe Board as a whole, rather than just Mayor Glotz. The previous determination, however, also\nexplained that \"[ t]he provisions of OMA protect the public's right to know about how public\nbodies conduct public business; OMA generally does not concern internal disputes between the\nmembers\nof a public body. i2 The determination further explained that, as a practical matter,\n\ncircumstances such as a conflict of interest may arise in which a public body could properly\n\nexclude a member from a closed session. 3 Nonetheless, you allege:\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022.\n2I11. Att' y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022, at 2.\n3l11. Att'y Gen. PAC Req. Rev. Ltr. 72721, issued July 25, 2022, at 2 (citing Ill. Att' y Gen. Op. No.\n00- 004, issued March\n\n7, 2000, at 3- 4).\n\nOn September 6, 2022, the Village Board excluded me\n\nfrom participation in the \" closed meeting\" portion of the Village\nBoard meeting. When I asked under what authority I was to be\nexcluded and insisted that a vote be taken to approve removing me\nfrom Executive Session, the mayor and the other five trustees got\nup, and left the room for a private meeting, and had the Village\nAttorney stationed at the door. He told me I would not be allowed\nto participate in the operations of government. I believe he\nexcludes me from participation in my required duties because of\n\nour philosophical/ political differences. i41\nYou have not indicated which provision of OMA you believe this course of\nconduct violated. Rather, you argue that OMA \" obviously assumes the right to participation by\nelected public officials at the meetings of the public body.\" 5 You contend that section 2. 06(f) of\nOMA (5 ILCS 120/ 2. 06(f) (West 2021 Supp.)) makes this clear, claiming:\n\nIt would defy logic and the intent of the statute to infer any\nauthority on the part of the mayor to exclude me from participation\nin any authorized \" closed session\" considering that the statute\n\nmandates that I have access to the minutes of any portions of an\n\nopen meeting held as a \" closed session\". i61\nThe legal issue you have raised that is subject to review by this office is not the\nmayor's authority to exclude you from the closed session, but whether the provisions of OMA\nguaranteed you the right to attend the closed session such that the Board violated OMA by\nexcluding you. Section 2. 06(f) of OMA provides, in relevant part:\n\nMinutes of meetings closed to the public shall be available\nonly after the public body determines that it is no longer necessary\n\nto protect the public interest or the privacy of an individual by\nkeeping them confidential, except that duly elected officials or\nappointed officials filling a vacancy of an elected office in a public\nbody shall be provided access to minutes of meetings closed to the\n4 Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartels], Public Access\nCounselor, Office of the Attorney General (September 9, 2022), at 1.\n\n5 Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartelt], Public Access\nCounselor, Office of the Attorney General (September 9, 2022), at 2.\n\n6 Letter from Diane Galante, Trustee, Village of Tinley Park, to Leah [ Bartelt], Public Access\nCounselor,\n\nOffice of the\n\npublic. Access to minutes shall be granted in the public body's\nmain office or official storage location, in the presence of a records\nsecretary, an administrative official of the public body, or any\nelected official of the public body. No minutes of meetings closed\nto the public shall be removed from the public body's main office\nor official storage location, except by vote of the public body or by\ncourt order.\n\nBy its plain language, section 2. 06(f) grants duly elected officials access to the\npublic body's past meeting minutes in a controlled process. Yet, it is conceivable that access\ncould be restricted if disclosing minutes to a member of a public body would defeat the purpose\nof a closed session discussion authorized by OMA. See Phoenix Bond & Indemnity Co. v.\nPappas, 194 I11. 2d 99, 107 (2000) (A statute should not be construed in a way that would defeat\nits purpose \" or yield an absurd or unjust result.\").\nFor instance, in Hamilton v. Town of Los\nGatos, 213 Cal. App. 3d 1050, 261 Cal. Rptr. 888 (6th Dist. 1989), a city council member sought\n\naccess to the recording of a closed session discussion between the other members of the city\ncouncil and legal counsel, from which he was absent due to a conflict of interest. Similar to\nsection 2. 06(f) of OMA, section 54957. 2 of California's open meetings statute, the Brown Act\nCal. Gov. Code § 54957. 2 (West 1988))\n\nprovided that access to closed session recordings \" shall\nbody.\" Although the city council member argued\nthat he was entitled to inspect the recording pursuant to this provision, the court concluded that\nbe available\n\nonly to members\n\nof the legislative\n\nhe was properly denied access pursuant to ethics laws. Hamilton, 213 Cal. App. 3d at 1059, 261\nCal. Rptr. at 893.\n\nThe court explained:\n\nIn the case where a council member is disqualified\n\nfrom\n\nparticipation in a decision because of a financial conflict of\ninterest, it does not appear to be in the best interest of the town to\n\nhave that council member present at discussions between the\ncouncil and its attorney concerning that decision. The attorney, as\nwell as the other council members,\n\nmight not feel as free to\n\ndisclose everything necessary when a \" biased\" public official were\npresent. The council members and attorney might feel similarly\ninhibited where they are aware that a \" biased\" council member can\nlater obtain a tape recording of the attorney -council discussion.\nThe town might thus be denied effective assistance of counsel.\n\nHamilton, 213 Cal. App. 3d at 1059, 261 Cal. Rptr. at 893.\nWhether you have a conflict of interest, financial or otherwise, that would\npreclude you from participating in certain closed session discussions between the rest of the\nBoard and the Board's attorney is, of course, beyond the scope of this office's review. It suffices\nto state that neither\n\na public body an inviolable right to participate in every closed session discussion regardless of\nthe circumstances. Because your allegation, though related to OMA, is outside the scope of that\nstatute, this office has determined that no further action is warranted in this matter.\n\nThis letter serves to close this file. If you have any questions, please contact me\nat joshua. jones@ilag. gov.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic\n\n73450 o no fi war mun\n\ncc:\n\nVia electronic mail\nThe Honorable Michael Glotz\nMayor\n\nVillage of Tinley Park\n16250 South Oak Park Avenue\n\nTinley Park, Illinois 60477\nmglotz@tinleypark.\n\norg\n\nAccess\n\nBureau"}
{"id":1396,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-01-30","case_number":null,"request_numbers":["73545"],"title":"Town of Normal did not violate OMA with closed session litigation discussion","filename":"73545, issued January 30, 2023.pdf","rel_path":null,"word_count":2349,"summary":"A Town Council member alleged that the Town of Normal improperly discussed a pending lawsuit in a closed session, but the PAC determined the discussion fell within the scope of the cited litigation exception.","plain_summary":"A local official complained that the Town of Normal Town Council improperly discussed a lawsuit in closed session during its September 9, 2022, special meeting, arguing the pending litigation exception did not apply because the town was not a party. The Public Access Bureau of the Illinois Attorney General's office reviewed the Council's written response and legal arguments, and determined that the closed session discussion was permissible under the section 2(c)(11) litigation exception. The Bureau concluded that the Council did not violate the Open Meetings Act.","holding":"The Town of Normal did not violate the Open Meetings Act because its closed session discussion regarding pending litigation was permissible under the section 2(c)(11) exception.","legal_question":"Whether the Town of Normal's closed session discussion regarding a pending lawsuit fell within the scope of the litigation exception provided by 5 ILCS 120/2(c)(11).","disposition":"no_violation","primary_statute":["5 ILCS 120/2(c)(11)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(11)"],"public_body":"Town of Normal","requesting_party":"a member of the Council","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Town Council held a closed session to discuss legal strategy regarding a pending lawsuit concerning a ballot referendum.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_11/Scope-strategies,-posture,-theories,-consequences-of-the-litigation-itself/73545, issued January 30, 2023.pdf","sha256":"21835b7086446de6e7556e6983d549920ecb1209bc97bf499fbc2ce98fbb7c03","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","pending litigation","Open Meetings Act","Town Council"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 30, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Day\nCorporation Counsel\nTown of Normal\n[street address redacted for site publication -- see original PDF]\nbday@normal. org\nRE: OMA Request for Review – 2022 PAC 73545\nDear\n\nand Mr. Day:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public\nAccess Bureau concludes that the Town of Normal ( Town) Town Council ( Council) did not hold\nan improper closed session discussion during its September 9, 2022, special meeting.\nIn a Request for Review submitted on September 16, 2022,\na\nmember of the Council, alleged that the Council violated OMA during its September 9, 2022,\nspecial meeting by improperly discussing a matter in closed session that was outside the scope of\nthe OMA exception that the Council cited as its basis for closing the meeting. Specifically,\nasserted that the Council' s discussion regarding a then- pending lawsuit concerning a\npetition to place a referendum on the November 8, 2022, ballot 1 did not fall within the scope of\n1Siracuse v. Dullard, Docket No. 22-MR141 ( Circuit Court, McLean County). At the time of the\nCouncil' s special meeting it appears this case was pending before the McLean County Circuit Court.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brian Day\nJanuary 30, 2023\nPage 2\n\nthe pending litigation exception found in section 2(c)(11) of OMA 2 because neither the Town\nnor the Council were named parties to the lawsuit; he also alleged that the outcome of the\nlitigation would not affect either entity. 3\nOn October 7, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Council and asked that it provide this office with copies of the closed session\nverbatim recording and closed session minutes from its September 9, 2022, special meeting for\nthis office' s confidential review. This office also asked the Council to address in writing\nallegation that section 2(c)(11) of OMA did not authorize the Council' s closed session\ndiscussion. On October 18, 2022, counsel for the Council provided this office with those\nmaterials, which included an affidavit from the Town's Manager. On October 19, 2022, this\noffice forwarded the Council' s written answer to\nhe replied on October 27, 2022.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nAs an initial matter,\nRequest for Review, and reply, asked this office\nto review whether certain actions taken by Town employees and officials constituted improper\nelectioneering. The Public Access Counselor' s authority, however, is limited to resolving\ndisputes concerning the Freedom of Information Act (FOIA) 4 and OMA. 15 ILCS 205/ 7(c)\nWest 2020). The Illinois Election Code 5— not FOIA or OMA— governs the election process.\nTherefore, the Public Access Counselor does not have authority to review those alleged\nviolations.\n\n25 ILCS 120/ 2(c)(11) ( West 2021 Supp.), as amended by Public Act 102- 813, effective May 13,\n2022.\n3It is undisputed that\nwas not present for the open portion of the September 9, 2022,\nspecial meeting nor the closed session discussion. An affidavit from the Town's Manager indicated that\nwas given the opportunity to listen to the verbatim recording of the closed session on September 14, 2022, in the\nadministrative conference room in city hall, but ceased listening to the recording after approximately four minutes.\nconfirmed in his reply that he did not listen to complete closed session recording.\n45 ILCS 140/ 1, et seq. ( West 2020).\n510 ILCS 5/1-1, et seq. ( West 2020).\n\n\fMr. Brian Day\nJanuary 30, 2023\nPage 3\n\nSection 2(a) of OMA 6 provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2(c) of OMA. 7 The section 2(c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(11) of OMA permits public bodies to discuss: \" Litigation, when an\naction against, affecting or on behalf of the particular public body has been filed and is pending\nbefore a court or administrative tribunal, or when the public body finds that an action is probable\nor imminent, in which case the basis for the finding shall be recorded and entered into the\nminutes of the closed meeting.\" ( Emphasis added.) The Illinois Appellate Court has held that\nwhen a lawsuit involving a public body has been filed, and is pending before a court, the public\nbody may hold closed meetings to discuss the pending lawsuit and issues which are related to\nthat litigation. See Allied Asphalt Paving Co. v. Village of Hillside, 314 Ill. App. 3d 138, 147\n1st Dist. 2000) ( finding village was entitled to hold closed meeting to consider seeking a\nparticular legal action in relation to pending litigation). Additionally, \" once the litigation\nexception is properly invoked, the only matters which may lawfully be discussed at the closed\nmeeting are the strategies, posture, theories, and consequences of the litigation itself.\" Ill. Att'y\nGen. Op. No. 83-026, at 14; see also City of Bloomington v. Raoul, 2021 IL App ( 4th) 190539,\n35-37, 184 N.E.3d 366, 372 ( 2021) ( noting a city council' s discussion of ways by which to\nterminate an intergovernmental agreement, financial aspects of doing so, and how to handle\ninquiries and criticism from their constituents, were not within the scope of the litigation\nexception).\nAccording to the background information provided by both parties, a resident of\nthe Town filed a petition ( Petitioner) pursuant to section 3.1-25-80 of the Illinois Municipal\nCode ( Code) 8 seeking to have a binding referendum placed on the November 8, 2022, ballot on\nthe public policy question \"[ s] hall the town be divided into 6 districts with one trustee elected\nfrom each district?\" An objection to that petition was filed by another resident ( Objector)\narguing that the petition was not authorized by the cited portion of the Code because that\nprovision applies only to villages, not towns. On August 30, 2022, the Town' s Electoral Board\nElectoral Board) issued an order ruling that the referendum would not be placed on the ballot\nbecause the cited portion of Code was not applicable to the Town. 9 On September 2, 2022, the\n65 ILCS 120/ 2(a) ( West 2020).\n75 ILCS 120/ 2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n865 ILCS 3.1-25-80) ( West 2020).\n9Normal Town Council Electoral Board, Findings, Decision, and Order No. 2022- 01, issued\nAugust 30, 2022.\n\n\fMr. Brian Day\nJanuary 30, 2023\nPage 4\n\nPetitioner filed a lawsuit in the McLean County Circuit Court ( Circuit Court) seeking judicial\nreview of the Electoral Board' s decision. 10 The parties named by the Petitioner in the appeal\nwere the Objector and the McLean County Clerk, as a nominal party. 11 On September 9, 2022,\nthe Council held a special meeting to discuss this pending lawsuit in closed session. On\nSeptember 20, 2022, the Circuit Court issued a ruling, which affirmed the Electoral Board' s\ndecision and denied the petition for judicial review of that decision.\nIn its response in this matter, the Council stated the September 9, 2022, closed\nsession was held to \"discuss intervening or otherwise participating in the pending case about [ the\nTown' s] form of government\" 12 which it asserted falls within the scope of the 2(c)(11) of OMA\nexception. The Council indicated that at the time of the special meeting, it was unclear whether\nthe Objector would defend the appeal because he had not yet filed an appearance. 13 The Council\nalso argued that if the Objector did not appear or did not \" vigorously defend the appeal[,]\" 14 the\nTown's form of government could have been determined based on a technicality, which could\nhave broadly affected the Town's operations, beyond the limited issue of whether the referendum\nshould be placed on the ballot. The Council' s response further stated the Petitioner' s appeal\nasked \" a judge to make a determination about a fundamental characteristic of the Town's\ngovernment[,]\" noting that \"[ a] judicial ruling that the Town is not a town would affect the\nTown.\" 15 The Council also argued that \"[ a] decision whether to intervene in a pending case is a\ntypical and routine litigation activity [ and] is the kind of decision that the litigation exemptions\nin OMA were created for.\" 16 Further, the Council' s response to this office argued that its closed\nsession discussion did not exceed the scope of 2(c)(11) because the discussion consisted of\n10Siracuse v. Dullard, Docket No. 22-MR141 ( Circuit Court, McLean County).\n11Siracuse v. Dullard, Docket No. 22-MR141 ( Circuit Court, McLean County).\n12Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau ( October 18, 2022), at 2.\n13Council' s response indicated that the Objector' s attorney filed an appearance in the pending\nlawsuit after the September 9, 2022, closed session discussion, and therefore, the Town did not take further steps to\nparticipate in the litigation.\n14Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau ( October 18, 2022), at 4.\n15Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau ( October 18, 2022), at 3.\n16Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau ( October 18, 2022), at 5.\n\n\fMr. Brian Day\nJanuary 30, 2023\nPage 5\n\nstrategies, posture, theories, and consequences of the pending litigation or probable litigation\nthat the Town looked at instituting[.]\" 17\nIn his reply,\nreiterated his contention that section 2(c)(11) of OMA is\ninapplicable to the closed session discussion because the then- pending litigation did not impact\nthe Town. Specifically, he asserted that \"[ i]n the Circuit Court' s ruling, Judge Kording went out\nof his way to clarify that the courts cannot make findings that would have impacted [ the Town]\nwithout [ the Town] being a party and allowed to respond. Any litigation affecting [ the Town]\nwould require some future unknown party to file suit against the [ T]own.\" 18 He also asserted\nthat if the court permitted voters to consider the referendum, the outcome would have been\nadvisory rather than binding, so there was no imminent risk of litigation concerning the Town's\nform of government.\nA transcript of the Circuit Court' s oral ruling provided to this office shows that the\ncourt stated it would be inappropriate to determine whether the Town was in compliance with\nsection 3.1-25-95 of the Municipal Code, 19 which identifies the specific officers that shall be\nelected to four- year terms in incorporated towns, because the Town was not party to the case.\nThe court also declined a request to declare that the Town' s identity as an incorporated town was\nnot correct. The court, however, went on to determine that the Town would not have abandoned\nits status as a town if it was not in compliance with section 3.1-25-95 of the Municipal Code and\nthat the referendum provision in section 3.1-25-80 for districting of villages did not apply to the\nTown. The court held that because the Town remained an incorporated Town, the Electoral\nBoard did not err by finding that the disputed referendum was not authorized by the Municipal\nCode and therefore could not appear on the ballot.\nThe plain language of section 2(c)(11) of OMA permits a public body to enter\nclosed session to discuss litigation when an action \" affecting * * * the particular public body has\nbeen filed and is pending before a court[.]\" The issues addressed in the judicial review of the\nElectoral Board' s decision–– the Town' s status as an incorporated town and whether voters could\nconsider a referendum concerning the Town' s form of government–– unequivocally affected the\nTown even if the referendum would have been non-binding and despite the court declining to\ndetermine whether the Town was in compliance with section 3.1-25-95 of the Municipal Code.\nFurther, this office's review of the closed session materials, including the verbatim recording of\n17Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau ( October 18, 2022), at 5.\n18Letter from\nBureau] ( October 27, 2022), at [ 1].\n\nto [ Shannon] Barnaby, [ Assistant Attorney General], [ Public Access\n\n1965 ILCS 5/3.1-25-95 (West 2020).\n\n\fMr. Brian Day\nJanuary 30, 2023\nPage 6\n\nthe closed session discussion, confirmed that the discussion focused on whether the Town would\nintervene in the lawsuit, the possible approaches to its involvement in the litigation, the legal\ntheories, defenses, and claims involved, as well as the potential consequences of those options.\nAccordingly, this office concludes that the Council' s discussion was within the scope of the\nsection 2(c)(11) exception under which it closed the meeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, my email address is shannon. barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n73545 o 2c11 proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A town council's closed-session discussion of litigation strategy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73545/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJanuary 30, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Day\nCorporation Counsel\nTown of Normal\n[street address redacted for site publication -- see original PDF]\nbday@normal. org\nRE: OMA Request for Review – 2022 PAC 73545\nDear\n\nand Mr. Day:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public\nAccess Bureau concludes that the Town of Normal (Town) Town Council (Council) did not hold\nan improper closed session discussion during its September 9, 2022, special meeting.\nIn a Request for Review submitted on September 16, 2022,\na\nmember of the Council, alleged that the Council violated OMA during its September 9, 2022,\nspecial meeting by improperly discussing a matter in closed session that was outside the scope of\nthe OMA exception that the Council cited as its basis for closing the meeting. Specifically,\nasserted that the Council's discussion regarding a then- pending lawsuit concerning a\npetition to place a referendum on the November 8, 2022, ballot 1 did not fall within the scope of\n1 Siracuse v. Dullard, Docket No. 22-MR141 (Circuit Court, McLean County). At the time of the\nCouncil's special meeting it appears this case was pending before the McLean County Circuit Court.\n\nthe pending litigation exception found in section 2(c)(11) of OMA 2 because neither the Town\nnor the Council were named parties to the lawsuit; he also alleged that the outcome of the\nlitigation would not affect either entity. 3\nOn October 7, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Council and asked that it provide this office with copies of the closed session\nverbatim recording and closed session minutes from its September 9, 2022, special meeting for\nthis office's confidential review. This office also asked the Council to address in writing\nallegation that section 2(c)(11) of OMA did not authorize the Council's closed session\ndiscussion. On October 18, 2022, counsel for the Council provided this office with those\nmaterials, which included an affidavit from the Town's Manager. On October 19, 2022, this\noffice forwarded the Council's written answer to\nhe replied on October 27, 2022.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nAs an initial matter,\nRequest for Review, and reply, asked this office\nto review whether certain actions taken by Town employees and officials constituted improper\nelectioneering. The Public Access Counselor's authority, however, is limited to resolving\ndisputes concerning the Freedom of Information Act (FOIA) 4 and OMA. 15 ILCS 205/ 7(c)\nWest 2020). The Illinois Election Code 5— not FOIA or OMA— governs the election process.\nTherefore, the Public Access Counselor does not have authority to review those alleged\nviolations.\n\n25 ILCS 120/ 2(c)(11) (West 2021 Supp.), as amended by Public Act 102- 813, effective May 13,\n2022.\n3 It is undisputed that\nwas not present for the open portion of the September 9, 2022,\nspecial meeting nor the closed session discussion. An affidavit from the Town's Manager indicated that\nwas given the opportunity to listen to the verbatim recording of the closed session on September 14, 2022, in the\nadministrative conference room in city hall, but ceased listening to the recording after approximately four minutes.\n\nSection 2(a) of OMA 6 provides that all meetings of a public body shall be open to\nthe public unless the subject of the meeting falls within one of the exceptions set out in section\n2(c) of OMA. 7 The section 2(c) exceptions are to be \" strictly construed, extending only to\nsubjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2020).\nSection 2(c)(11) of OMA permits public bodies to discuss: \" Litigation, when an\naction against, affecting or on behalf of the particular public body has been filed and is pending\nbefore a court or administrative tribunal, or when the public body finds that an action is probable\nor imminent, in which case the basis for the finding shall be recorded and entered into the\nminutes of the closed meeting.\" (Emphasis added.) The Illinois Appellate Court has held that\nwhen a lawsuit involving a public body has been filed, and is pending before a court, the public\nbody may hold closed meetings to discuss the pending lawsuit and issues which are related to\nthat litigation. See Allied Asphalt Paving Co. v. Village of Hillside, 314 Ill. App. 3d 138, 147\n1st Dist. 2000) (finding village was entitled to hold closed meeting to consider seeking a\nparticular legal action in relation to pending litigation). Additionally, \" once the litigation\nexception is properly invoked, the only matters which may lawfully be discussed at the closed\nmeeting are the strategies, posture, theories, and consequences of the litigation itself.\" Ill. Att'y\nGen. Op. No. 83-026, at 14; see also City of Bloomington v. Raoul, 2021 IL App (4th) 190539,\n35-37, 184 N.E.3d 366, 372 (2021) (noting a city council's discussion of ways by which to\nterminate an intergovernmental agreement, financial aspects of doing so, and how to handle\ninquiries and criticism from their constituents, were not within the scope of the litigation\nexception).\nAccording to the background information provided by both parties, a resident of\nthe Town filed a petition (Petitioner) pursuant to section 3.1-25-80 of the Illinois Municipal\nCode (Code) 8 seeking to have a binding referendum placed on the November 8, 2022, ballot on\nthe public policy question \"[ s] hall the town be divided into 6 districts with one trustee elected\nfrom each district?\" An objection to that petition was filed by another resident (Objector)\narguing that the petition was not authorized by the cited portion of the Code because that\nprovision applies only to villages, not towns. On August 30, 2022, the Town's Electoral Board\nElectoral Board) issued an order ruling that the referendum would not be placed on the ballot\nbecause the cited portion of Code was not applicable to the Town. 9 On September 2, 2022, the\n65 ILCS 120/ 2(a) (West 2020).\n75 ILCS 120/ 2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n\nPetitioner filed a lawsuit in the McLean County Circuit Court (Circuit Court) seeking judicial\nreview of the Electoral Board's decision. 10 The parties named by the Petitioner in the appeal\nwere the Objector and the McLean County Clerk, as a nominal party. 11 On September 9, 2022,\nthe Council held a special meeting to discuss this pending lawsuit in closed session. On\nSeptember 20, 2022, the Circuit Court issued a ruling, which affirmed the Electoral Board's\ndecision and denied the petition for judicial review of that decision.\nIn its response in this matter, the Council stated the September 9, 2022, closed\nsession was held to \"discuss intervening or otherwise participating in the pending case about [ the\nTown's] form of government\" 12 which it asserted falls within the scope of the 2(c)(11) of OMA\nexception. The Council indicated that at the time of the special meeting, it was unclear whether\nthe Objector would defend the appeal because he had not yet filed an appearance. 13 The Council\nalso argued that if the Objector did not appear or did not \" vigorously defend the appeal[,]\" 14 the\nTown's form of government could have been determined based on a technicality, which could\nhave broadly affected the Town's operations, beyond the limited issue of whether the referendum\nshould be placed on the ballot. The Council's response further stated the Petitioner's appeal\nasked \" a judge to make a determination about a fundamental characteristic of the Town's\ngovernment[,]\" noting that \"[ a] judicial ruling that the Town is not a town would affect the\nTown.\" 15 The Council also argued that \"[ a] decision whether to intervene in a pending case is a\ntypical and routine litigation activity [ and] is the kind of decision that the litigation exemptions\nin OMA were created for.\" 16 Further, the Council's response to this office argued that its closed\nsession discussion did not exceed the scope of 2(c)(11) because the discussion consisted of\n10 Siracuse v. Dullard, Docket No. 22-MR141 (Circuit Court, McLean County).\n11 Siracuse v. Dullard, Docket No. 22-MR141 (Circuit Court, McLean County).\n12 Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau (October 18, 2022), at 2.\n13 Council's response indicated that the Objector's attorney filed an appearance in the pending\nlawsuit after the September 9, 2022, closed session discussion, and therefore, the Town did not take further steps to\nparticipate in the litigation.\n14 Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau (October 18, 2022), at 4.\n15 Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau (October 18, 2022), at 3.\n16 Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\n\nstrategies, posture, theories, and consequences of the pending litigation or probable litigation\nthat the Town looked at instituting[.]\" 17\nIn his reply,\nreiterated his contention that section 2(c)(11) of OMA is\ninapplicable to the closed session discussion because the then- pending litigation did not impact\nthe Town. Specifically, he asserted that \"[ i]n the Circuit Court's ruling, Judge Kording went out\nof his way to clarify that the courts cannot make findings that would have impacted [ the Town]\nwithout [ the Town] being a party and allowed to respond. Any litigation affecting [ the Town]\nwould require some future unknown party to file suit against the [ T]own.\" 18 He also asserted\nthat if the court permitted voters to consider the referendum, the outcome would have been\nadvisory rather than binding, so there was no imminent risk of litigation concerning the Town's\nform of government.\nA transcript of the Circuit Court's oral ruling provided to this office shows that the\ncourt stated it would be inappropriate to determine whether the Town was in compliance with\nsection 3.1-25-95 of the Municipal Code, 19 which identifies the specific officers that shall be\nelected to four- year terms in incorporated towns, because the Town was not party to the case.\nThe court also declined a request to declare that the Town's identity as an incorporated town was\nnot correct. The court, however, went on to determine that the Town would not have abandoned\nits status as a town if it was not in compliance with section 3.1-25-95 of the Municipal Code and\nthat the referendum provision in section 3.1-25-80 for districting of villages did not apply to the\nTown. The court held that because the Town remained an incorporated Town, the Electoral\nBoard did not err by finding that the disputed referendum was not authorized by the Municipal\nCode and therefore could not appear on the ballot.\nThe plain language of section 2(c)(11) of OMA permits a public body to enter\nclosed session to discuss litigation when an action \" affecting * * * the particular public body has\nbeen filed and is pending before a court[.]\" The issues addressed in the judicial review of the\nElectoral Board's decision–– the Town's status as an incorporated town and whether voters could\nconsider a referendum concerning the Town's form of government–– unequivocally affected the\nTown even if the referendum would have been non-binding and despite the court declining to\ndetermine whether the Town was in compliance with section 3.1-25-95 of the Municipal Code.\nFurther, this office's review of the closed session materials, including the verbatim recording of\n17 Letter from Brian Day, Corporation Counsel, Town of Normal, to Shannon Barnaby, Assistant\n\nthe closed session discussion, confirmed that the discussion focused on whether the Town would\nintervene in the lawsuit, the possible approaches to its involvement in the litigation, the legal\ntheories, defenses, and claims involved, as well as the potential consequences of those options.\nAccordingly, this office concludes that the Council's discussion was within the scope of the\nsection 2(c)(11) exception under which it closed the meeting.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, my email address is shannon. barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n73545 o 2c11 proper mun"}
{"id":1397,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-07","case_number":null,"request_numbers":["74113"],"title":"Thornton Township Board violated OMA by taking final action via phone polls","filename":"74113, issued June 7, 2023.pdf","rel_path":null,"word_count":1925,"summary":"A requester alleged that the Thornton Township Board of Trustees violated the Open Meetings Act by conducting and voting on township business via unauthorized phone polls. The PAC determined that the Board's actions were improper and requested that the Board ratify the remaining unaddressed item in a properly noticed open meeting.","plain_summary":"The question was whether the Township Board violated section 2(e) of the Open Meetings Act by taking final action on Township business through telephone polls conducted outside an open meeting. The Attorney General's Public Access Bureau concluded that the Board violated section 2(e) because Board members reached a consensus and the Township implemented at least some of the approved actions (e.g., paying bills, changing an employee's status) before the matters were later ratified at an open meeting. The reasoning is that reaching consensus and implementing a decision outside an open meeting constitutes 'final action,' which OMA requires to occur in an open meeting even if the matter later receives a ratifying vote, and OMA contains no exception for urgent business or lack of quorum. The Board (Thornton Township Board of Trustees) was found to have improperly conducted six phone polls in October 2022, only five of which were later ratified at a November 9, 2022 open meeting.","holding":"Under section 2(e) of the Open Meetings Act, a public body takes prohibited 'final action' when it reaches a consensus and implements a decision outside an open meeting, even if the decision is later formally ratified at a subsequent open meeting.","legal_question":"Whether a public body violates the Open Meetings Act by conducting and voting on public business via phone polls outside of an open meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Thornton Township Board of Trustees","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Trustees conducted phone polls to vote on township business instead of holding open meetings.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/74113, issued June 7, 2023.pdf","sha256":"4d8748cad8f985407363882c0b8ff95065f1f883fc571a45383bc41a207c44b8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["phone polls","open meetings act","final action","quorum","public business"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 7, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Tiffany Henyard\n\nTownship Supervisor\nThornton Township\n\n333 East 162nd Street\nSouth Holland, Illinois 60473\n\nthenyard@thorntontwp.com\nRE: OMA Request for Review – 2022 PAC 74113\nDear\n\nand Ms. Henyard:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)).\nBACKGROUND\nOn October 27, 2022,\n\nsubmitted a Request for Review\n\nto the Public Access Bureau alleging that the Board of Trustees (Board) of Thornton Township\nTownship) violated OMA' s requirements by voting on four matters outside of an open meeting.\n\nexplained that the Board had scheduled meetings for October 11, 2022, and\nOctober 25, 2022, but the Board did not have a quorum to hold them.\n\nprovided\n\nthis office with a copy of the October 25, 2022, meeting agenda, which stated under the agenda\nitem for new business: \" A. Ratify Four Phone Polls Conducted on October 14, 2022.\" 1\n\ncontended that the Board improperly conducted four phone polls on matters of\nTownship business in lieu of voting on those matters in an open meeting.\n\n1Thornton Township, Board of Trustees, Agenda, IX. New Business (October 25, 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Tiffany Henyard\nJune 7, 2023\n\nPage 2\n\nOn November 4, 2022, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide a written response addressing whether the Board complied with\nsection 2(e) of OMA, 2 which provides that \"[ n] o final action may be taken at a closed meeting.\"\n\nThis office asked the Board, in relevant part, to explain when and how the four phone polls\nidentified in the October 25, 2022, meeting agenda were conducted, including providing the\n\nnames of the Board members who participated in them and descriptions of the polls and any\nissues discussed. Have received no response, this office sent additional correspondence to the\n\nBoard on November 22, 2022. On January 9, 2023, this office received the requested response\nand additional documents describing the subject matters of four phone polls that were conducted\n\non October 14, 2022, and two phone polls on October 26, 2022. On January 10, 2023, this office\nforwarded a copy of the response to\n\nshe did not submit a reply.\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2020). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" ( Emphasis added.) Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nIn its response to this office, the Board acknowledged that its members\n\nparticipated in phone polls outside of an open meeting, but it denied that any of those polls\nconstituted a \" meeting\" subject to OMA. 3 The Board asserted that \" each poll was limited to one\n\nTrustee, rather than a contemporaneous interactive communication between a quorum of the\npublic body.\" 4 The Board further explained:\n\n25 ILCS 120/2(e) ( West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n3OMA defines \" meeting\" as:\nany gathering, whether in person or by video or audio conference, telephone\ncall, electronic means (such as, without limitation, electronic mail, electronic\nchat, and instant messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a public body held\nfor the purpose of discussing public business or, for a 5-member public body, a\nquorum of the members of a public body held for the purpose of discussing\npublic business. 5 ILCS 120/1.02 (West 2020).\n4Letter from Terrence Casey, Del Galdo Law Group, to Teresa Lim, Assistant Attorney General,\nPublic Access Bureau, Office of the Illinois Attorney General (January 9, 2023), at [2].\n\n\fThe Honorable Tiffany Henyard\nJune 7, 2023\n\nPage 3\n\nOn October 14, 2022, and October 26, 2022, the\n\nTownship's Deputy Clerk, Kierra Lewis, telephonically called each\nTrustee separately and asked if he or she approves or rejects\n\ncertain public business items. The only individuals present on the\nphone polls were the Deputy Clerk and an individual Trustee. The\n\nDeputy Clerk made five (5) phone calls on October 14th and five\n5) phone calls on October 26th to gather each Trustee' s vote on a\nparticular item.[5]\nAdditionally, the Board asserted that it ratified the phone polls at a later meeting it held on\nNovember 9, 2022, which was open to the public. The Board provided this office with copies of\n\nits November 9, 2022, meeting agenda and minutes. The agenda stated, in pertinent part:\nA. Ratify Three Phone Polls Conducted on October 14, 2022.\n1) Approve Resolution 22-R-016 a Resolution\nAuthorizing the Borrowing of An Amount Not to\n\nExceed $5,000,000\n2) Approve Ordinance 22- 004 an Ordinance Regarding\n\nPublic Comments and Conduct at Public Meetings of\nThornton Township, Cook County, Illinois\n3) Approval of October 11, 2022, General Fund, General\n\nAssistance Fund, Road and Bridge Fund Bills.\nB. Ratify Two Phone Polls Conducted on October 26, 2022\n1) Approval of October 25, 2022, General Fund, General\nAssistance Fund, Road and Bridge Fund Bills\n2) Approve Hiring of Full- Time Director of At-Risk\n\nYouth Program[6]\n\n5Letter from Terrence Casey, Del Galdo Law Group, to Teresa Lim, Assistant Attorney General,\nPublic Access Bureau, Office of the Illinois Attorney General (January 9, 2023), at [1].\n6Thornton Township, Agenda Item IX, New Business (November 9, 2022).\n\n\fThe Honorable Tiffany Henyard\nJune 7, 2023\n\nPage 4\n\nThe meeting minutes reflect that the Board approved by roll call vote the above matters. 7\nOn February 1, 2023, this office asked the Board whether it took actions on the\n\nitems that were the subject of the six phone polls after the polls were conducted. In particular,\nthis office asked the Board whether it made any payments related to the bills for the General\n\nAssistance Fund and took any steps to borrow funds. This office also asked when the Township\nhad changed the employment status of the part- time clerk to full time and filled the director\n\nposition or began the hiring search for that position. In an April 19, 2023, reply, counsel for the\nBoard stated that the Township made bill payments and changed the employment status of the\n\npart-time clerk the day after the phone poll. The reply also stated that the Township started the\nhiring search for the director position on October 1, 2022, and began conducting research on\n\nborrowing funds in September 2022 because of a delay in tax revenue coming in.\nThe phone poll documents and other information provided to this office indicate\nthat Board members manifested a collective decision to approve or reject the actions proposed in\n\nthe phone polls. As noted above, section 2(e) of OMA provides that \"[ n]o final action may be\ntaken at a closed meeting. Final action shall be preceded by a public recital of the nature of the\n\nmatter being considered and other information that will inform the public of the business being\nconducted.\" The term \" final action\" generally does not encompass intermediate steps taken by a\npublic body in the process of resolving a matter. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176\n\n5th Dist. 1989) (concluding that a board of education's closed session decision to pursue\nmediation as an alternative to its ongoing negotiations with the secretaries' union was part of the\n\nprocess of reaching a final action rather than final action itself). However, reaching a consensus\nand implementing a decision outside of an open meeting is final action rather than an\n\nintermediate step. See Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013\nIL App ( 1st) 122446, ¶ 29, 996 N.E.2d 664, 670 ( 2013) ( vacating the board' s decision to deny\n\ndisability benefits because the board had circulated the decision for signatures privately rather\nthan voting on it in open session); Ill. Att'y Gen. PAC Req. Rev. Ltrs. 58555, 58614, 58615,\n\nissued August 20, 2019, at 3 (public body took final action by reaching a consensus to prohibit\ncamping at a park and implementing that decision by posting \" no camping\" signs before voting\n\non the matter at a subsequent meeting).\nIn this matter, the Township reached a consensus and implemented at least some\nof the actions in the phone polls prior to the ratification at the Board' s November 9, 2022,\n\nmeeting. The Township, for instance, made payments on its bills related to the General\nAssistance Fund and changed the employment status of an employee the day after the Board\n\nmembers conveyed their approval of those particular actions in the phone polls. Such actions\nconstituted final actions for purposes of OMA, and the Board reached consensus to take those\n\n7Thorntown Township Board of Trustees, Meeting, November 9, 2022, Minutes.\n\n\fThe Honorable Tiffany Henyard\nJune 7, 2023\n\nPage 5\n\nactions outside of an open meeting. Moreover, the votes to ratify five out of the six phone polls\n\nat the November 9, 2022, meeting merely reiterated decisions that already had been made and\neffectuated. This office understands that the Board lacked a quorum to hold meetings prior to\n\nNovember 9, 2022, and certain matters, such as the payment of bills, appear to have required\ntimely attention, but OMA does not contain an exception to the requirement that final actions be\n\ntaken in an open meeting. Accordingly, this office concludes that the Board improperly took\nfinal action outside of an open meeting in connection with the October 14, 2022, and October 26,\n\n2022, phone polls in violation of section 2(e) of OMA.\nBecause the Board ratified only five out of the six items that were the subject of\nthe October 14, 2022, and October 26, 2022, phone polls at its November 9, 2022, meeting, this\n\noffice requests that the Board ratify the remaining phone poll (changing the status of a part-time\nclerk to full-time) at an open meeting that meets all of OMA' s requirements.\n\nThis office reminds\n\nthe Board that while preliminary votes on matters of public business may be taken in closed\nsession, it cannot take any final actions on those matters outside of an open meeting. Any final\n\nactions must be taken in an open meeting that fully complies with the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n74113 o 2e improper mun\ncc:\n\nVia electronic mail\nMr. Terrence Casey\n\nAttorney for Thornton Township\nDel Galdo Law Group, LLC\n\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\n\ncasey@dlglawgroup.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Phone polls to vote on township business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74113/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 7, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Tiffany Henyard\n\nTownship Supervisor\nThornton Township\n\n333 East 162nd Street\nSouth Holland, Illinois 60473\n\nthenyard@thorntontwp.com\nRE: OMA Request for Review – 2022 PAC 74113\nDear\n\nand Ms. Henyard:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)).\nBACKGROUND\nOn October 27, 2022,\n\nsubmitted a Request for Review\n\nto the Public Access Bureau alleging that the Board of Trustees (Board) of Thornton Township\nTownship) violated OMA's requirements by voting on four matters outside of an open meeting.\n\nexplained that the Board had scheduled meetings for October 11, 2022, and\nOctober 25, 2022, but the Board did not have a quorum to hold them.\n\nprovided\n\nthis office with a copy of the October 25, 2022, meeting agenda, which stated under the agenda\nitem for new business: \" A. Ratify Four Phone Polls Conducted on October 14, 2022.\" 1\n\ncontended that the Board improperly conducted four phone polls on matters of\nTownship business in lieu of voting on those matters in an open meeting.\n\n1 Thornton Township, Board of Trustees, Agenda, IX. New Business (October 25, 2022).\n\nOn November 4, 2022, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide a written response addressing whether the Board complied with\nsection 2(e) of OMA, 2 which provides that \"[ n] o final action may be taken at a closed meeting.\"\n\nThis office asked the Board, in relevant part, to explain when and how the four phone polls\nidentified in the October 25, 2022, meeting agenda were conducted, including providing the\n\nnames of the Board members who participated in them and descriptions of the polls and any\nissues discussed. Have received no response, this office sent additional correspondence to the\n\nBoard on November 22, 2022. On January 9, 2023, this office received the requested response\nand additional documents describing the subject matters of four phone polls that were conducted\n\non October 14, 2022, and two phone polls on October 26, 2022. On January 10, 2023, this office\nforwarded a copy of the response to\n\nshe did not submit a reply.\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" (Emphasis added.) Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nIn its response to this office, the Board acknowledged that its members\n\nparticipated in phone polls outside of an open meeting, but it denied that any of those polls\nconstituted a \" meeting\" subject to OMA. 3 The Board asserted that \" each poll was limited to one\n\nTrustee, rather than a contemporaneous interactive communication between a quorum of the\npublic body.\" 4 The Board further explained:\n\n25 ILCS 120/2(e) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n3OMA defines \" meeting\" as:\nany gathering, whether in person or by video or audio conference, telephone\ncall, electronic means (such as, without limitation, electronic mail, electronic\nchat, and instant messaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a public body held\nfor the purpose of discussing public business or, for a 5-member public body, a\nquorum of the members of a public body held for the purpose of discussing\npublic business. 5 ILCS 120/1.02 (West 2020).\n4 Letter from Terrence Casey, Del Galdo Law Group, to Teresa Lim, Assistant Attorney General,\n\nOn October 14, 2022, and October 26, 2022, the\n\nTownship's Deputy Clerk, Kierra Lewis, telephonically called each\nTrustee separately and asked if he or she approves or rejects\n\ncertain public business items. The only individuals present on the\nphone polls were the Deputy Clerk and an individual Trustee. The\n\nDeputy Clerk made five (5) phone calls on October 14th and five\n5) phone calls on October 26th to gather each Trustee's vote on a\nparticular item.[5]\nAdditionally, the Board asserted that it ratified the phone polls at a later meeting it held on\nNovember 9, 2022, which was open to the public. The Board provided this office with copies of\n\nits November 9, 2022, meeting agenda and minutes. The agenda stated, in pertinent part:\nA. Ratify Three Phone Polls Conducted on October 14, 2022.\n1) Approve Resolution 22-R-016 a Resolution\nAuthorizing the Borrowing of An Amount Not to\n\nExceed $5,000,000\n2) Approve Ordinance 22- 004 an Ordinance Regarding\n\nPublic Comments and Conduct at Public Meetings of\nThornton Township, Cook County, Illinois\n3) Approval of October 11, 2022, General Fund, General\n\nAssistance Fund, Road and Bridge Fund Bills.\nB. Ratify Two Phone Polls Conducted on October 26, 2022\n1) Approval of October 25, 2022, General Fund, General\nAssistance Fund, Road and Bridge Fund Bills\n2) Approve Hiring of Full- Time Director of At-Risk\n\nYouth Program[6]\n\n5 Letter from Terrence Casey, Del Galdo Law Group, to Teresa Lim, Assistant Attorney General,\n\nThe meeting minutes reflect that the Board approved by roll call vote the above matters. 7\nOn February 1, 2023, this office asked the Board whether it took actions on the\n\nitems that were the subject of the six phone polls after the polls were conducted. In particular,\nthis office asked the Board whether it made any payments related to the bills for the General\n\nAssistance Fund and took any steps to borrow funds. This office also asked when the Township\nhad changed the employment status of the part- time clerk to full time and filled the director\n\nposition or began the hiring search for that position. In an April 19, 2023, reply, counsel for the\nBoard stated that the Township made bill payments and changed the employment status of the\n\npart-time clerk the day after the phone poll. The reply also stated that the Township started the\nhiring search for the director position on October 1, 2022, and began conducting research on\n\nborrowing funds in September 2022 because of a delay in tax revenue coming in.\nThe phone poll documents and other information provided to this office indicate\nthat Board members manifested a collective decision to approve or reject the actions proposed in\n\nthe phone polls. As noted above, section 2(e) of OMA provides that \"[ n]o final action may be\ntaken at a closed meeting. Final action shall be preceded by a public recital of the nature of the\n\nmatter being considered and other information that will inform the public of the business being\nconducted.\" The term \" final action\" generally does not encompass intermediate steps taken by a\npublic body in the process of resolving a matter. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176\n\n5th Dist. 1989) (concluding that a board of education's closed session decision to pursue\nmediation as an alternative to its ongoing negotiations with the secretaries' union was part of the\n\nprocess of reaching a final action rather than final action itself). However, reaching a consensus\nand implementing a decision outside of an open meeting is final action rather than an\n\nintermediate step. See Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013\nIL App (1st) 122446, ¶ 29, 996 N.E.2d 664, 670 (2013) (vacating the board's decision to deny\n\ndisability benefits because the board had circulated the decision for signatures privately rather\nthan voting on it in open session); Ill. Att'y Gen. PAC Req. Rev. Ltrs. 58555, 58614, 58615,\n\nissued August 20, 2019, at 3 (public body took final action by reaching a consensus to prohibit\ncamping at a park and implementing that decision by posting \" no camping\" signs before voting\n\non the matter at a subsequent meeting).\nIn this matter, the Township reached a consensus and implemented at least some\nof the actions in the phone polls prior to the ratification at the Board's November 9, 2022,\n\nmeeting. The Township, for instance, made payments on its bills related to the General\nAssistance Fund and changed the employment status of an employee the day after the Board\n\nmembers conveyed their approval of those particular actions in the phone polls. Such actions\nconstituted final actions for purposes of OMA, and the Board reached consensus to take those\n\nactions outside of an open meeting. Moreover, the votes to ratify five out of the six phone polls\n\nat the November 9, 2022, meeting merely reiterated decisions that already had been made and\neffectuated. This office understands that the Board lacked a quorum to hold meetings prior to\n\nNovember 9, 2022, and certain matters, such as the payment of bills, appear to have required\ntimely attention, but OMA does not contain an exception to the requirement that final actions be\n\ntaken in an open meeting. Accordingly, this office concludes that the Board improperly took\nfinal action outside of an open meeting in connection with the October 14, 2022, and October 26,\n\n2022, phone polls in violation of section 2(e) of OMA.\nBecause the Board ratified only five out of the six items that were the subject of\nthe October 14, 2022, and October 26, 2022, phone polls at its November 9, 2022, meeting, this\n\noffice requests that the Board ratify the remaining phone poll (changing the status of a part-time\nclerk to full-time) at an open meeting that meets all of OMA's requirements.\n\nThis office reminds\n\nthe Board that while preliminary votes on matters of public business may be taken in closed\nsession, it cannot take any final actions on those matters outside of an open meeting. Any final\n\nactions must be taken in an open meeting that fully complies with the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n74113 o 2e improper mun\ncc:\n\nVia electronic mail\nMr. Terrence Casey\n\nAttorney for Thornton Township\nDel Galdo Law Group, LLC\n\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\n\ncasey@dlglawgroup.com"}
{"id":1398,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-07-02","case_number":null,"request_numbers":["74390"],"title":"Village of Bismarck Planning Commission violated OMA by excluding public from meeting","filename":"74390, issued July 2, 2024.pdf","rel_path":null,"word_count":1024,"summary":"The PAC investigated an allegation that the Village of Bismarck Planning Commission improperly excluded the public from a portion of its September 20, 2022, meeting. The PAC determined that the Commission violated the Open Meetings Act by effectively restricting public attendance during a committee discussion.","plain_summary":"This determination addresses whether the Village of Bismarck Planning Commission violated Section 2(a) of the Open Meetings Act by restricting public attendance at a portion of its September 20, 2022 meeting held after a public hearing on a zoning reapplication. The Public Access Bureau held that the Commission violated OMA because it failed to sufficiently demonstrate that the post-hearing portion of the meeting, described in draft minutes as a 'separate meeting' held to deliberate, remained open to the public. The reasoning turns on the rule that a public body claiming a meeting remained open must show it clearly communicated to attendees that they could rejoin and that the meeting was in fact accessible; unexplained ambiguity in the record, combined with a firsthand account contradicting the public body's account, defeats that showing. No remedial action was ordered, but the Commission was reminded of its obligation to hold open meetings.","holding":"A public body violates Section 2(a) of the Open Meetings Act when it cannot adequately show that a portion of its meeting conducted after excusing the public remained genuinely open and accessible to attendees.","legal_question":"Whether the Village of Bismarck Planning Commission violated the Open Meetings Act by holding a 'separate meeting' that excluded the public.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Bismarck Planning Commission","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting access","subject_description":"The Commission held a closed-door discussion following a public hearing on a zoning reapplication.","ocr_status":"ok","ocr_quality":96.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/74390, issued July 2, 2024.pdf","sha256":"7778fc9d322315a0eb0f14097f43905e39cddf907c77485b2c700da00baae1be","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meeting","public access","zoning","meeting minutes"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"July 2, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Lawlyes\n\nAttorney for the Village of Bismarck\nActon & Snyder, LLP\n\n220 North Vermilion Street\nDanville, Illinois 61832\n\nbrian@acton-snyder.com\nRE:\nDear\n\nOMA Request for Review – 2022 PAC 74390\n\nand Mr. Lawlyes:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Village of Bismarck (Village) Planning Commission (Commission) violated\nOMA in connection with its September 20, 2022, meeting.\nBACKGROUND\nOn October 31, 2022, the Public Access Bureau received\n\nRequest for Review alleging that the Commission did not allow the public to attend a portion of\nits September 20, 2022, meeting following a public hearing on a zoning reapplication.\n\nincluded a copy of the meeting minutes, which stated that the Commission \"held a\nseparate meeting as a commission committee to discuss\" following public participation. 1\n\n1Bismarck Planning Commission Meeting Notes ( September 20, 2022).\n\n\fMr. Brian Lawlyes\nJuly 2, 2024\n\nPage 2\nOn November 29, 2022, this office sent a copy of the Request for Review to the\nCommission and asked it provide a written response to the allegation. On December 6, 2022, the\n\nCommission provided its response. On December 9, 2022, this office forwarded a copy of the\nCommission' s response to\n\non December 20, 2022, she replied.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2022). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\n\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSection 2(a) of OMA2 provides, in relevant part, that \"[ a] ll meetings of public\nbodies shall be open to the public unless excepted in subsection ( c) and closed in accordance\n\nwith Section 2a.\" Section 2.01 of OMA3 further provides, in relevant part, that \"[ a] ll meetings\nrequired by this Act to be public shall be held at specified times and places which are convenient\n\nand open to the public[.]\"\nIn its response to this office, the Commission stated that, although its September\n20, 2022, meeting was scheduled to occur at the Village Office, the public comment portion of\n\nthe meeting was moved to a larger location to accommodate a large crowd. The Commission\nrecounted, however, that it returned to the Village Office following public participation.\n\nThe\n\nCommission also recounted that \"[ t]he public was allowed to return to the Village Office also,\nbut most did not do so. The Village Office doors remained open and the public was not\n\nexcluded.\" 4 The Commission further argued that it did not hold a separate meeting, and that its\ndraft minutes were incorrect in stating that it did so.\nIn her reply,\n\nrecounted that the public was told to leave following\n\npublic participation so that the Commission could discuss the rezoning request at issue and that\nthe public was not told that the Commission would be returning to the Village Office to continue\n\nthe meeting. She further noted that she stood with several people outside the office and did not\nsee the Commission return to the office. Additionally, she questioned the need to return to the\n\nVillage Office when the new space could better accommodate the large crowd.\n\n25 ILCS 120/2(a) ( West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n35 ILCS 120/2.01 (West 2022).\n4Letter from Brian C. Lawlyes, Acton & Snyder, LLP, to Benjamin J. Silver, Assistant Attorney\nGeneral, Public Access Bureau ( December 6, 2022), at 2.\n\n\fMr. Brian Lawlyes\nJuly 2, 2024\n\nPage 3\nOn February 8, 2024, an Assistant Attorney General in the Public Access Bureau\ne-mailed counsel for the Commission to gather additional information regarding how the\n\nCommission determined that its September 20, 2022, meeting minutes were incorrect, whether\nmembers of the public did attend the portion of the meeting back at the Village Office, whether\n\nthe Commission had approved the minutes for the meeting, and whether or not the Commission\nhad changed the minutes from the draft form provided to indicate that it did not hold a separate\n\nmeeting. To this date, this office has not received a response.\nAlthough the Commission argued in its response that its September 20, 2022,\nmeeting remained open to the public following public participation, it did not sufficiently explain\n\nhow the Commission \"indicated they would return to the Village Office * * * to continue their\nmeeting\" 5 and how it conveyed to the crowd that members of the public could join this open\n\nmeeting. The draft minutes, which are the only minutes this office has received, state that it held\na \" separate meeting\" to weigh the evidence and testimony it received during public participation.\n\nIn light of\n\ndescription of the events and personal attendance at the meeting, the\n\nCommission' s response did not demonstrate that its meeting remained open to the public. Under\n\nthese circumstances, this office concludes that the Commission violated section 2(a) of OMA by\neffectively restricting the public from attending a portion of its September 20, 2022, meeting.\nWhile no remedial action is available under these circumstances, this office\n\nreminds the Commission of its obligation to hold meetings that are open to the public. The\nPublic Access Counselor has determined that resolution of this matter does not require the\n\nissuance of a binding opinion. This file is closed. If you have any questions, please contact me\nat benjamin. silver@ilag. gov or ( 773) 590- 7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n74390 o 2a improper mun\n\n5Letter from Brian C. Lawlyes, Acton & Snyder, LLP, to Benjamin J. Silver, Assistant Attorney\nGeneral, Public Access Bureau ( December 6, 2022), at 2.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A planning commission's closed-door discussion after a public hearing","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74390/","full_text":"July 2, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Lawlyes\n\nAttorney for the Village of Bismarck\nActon & Snyder, LLP\n\n220 North Vermilion Street\nDanville, Illinois 61832\n\nbrian@acton-snyder.com\nRE:\nDear\n\nOMA Request for Review – 2022 PAC 74390\n\nand Mr. Lawlyes:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Village of Bismarck (Village) Planning Commission (Commission) violated\nOMA in connection with its September 20, 2022, meeting.\nBACKGROUND\nOn October 31, 2022, the Public Access Bureau received\n\nRequest for Review alleging that the Commission did not allow the public to attend a portion of\n\nOn November 29, 2022, this office sent a copy of the Request for Review to the\nCommission and asked it provide a written response to the allegation. On December 6, 2022, the\n\nCommission provided its response. On December 9, 2022, this office forwarded a copy of the\nCommission's response to\n\non December 20, 2022, she replied.\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2022). \" The Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\n\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSection 2(a) of OMA2 provides, in relevant part, that \"[ a] ll meetings of public\nbodies shall be open to the public unless excepted in subsection (c) and closed in accordance\n\nwith Section 2a.\" Section 2.01 of OMA3 further provides, in relevant part, that \"[ a] ll meetings\nrequired by this Act to be public shall be held at specified times and places which are convenient\n\nand open to the public[.]\"\nIn its response to this office, the Commission stated that, although its September\n20, 2022, meeting was scheduled to occur at the Village Office, the public comment portion of\n\nthe meeting was moved to a larger location to accommodate a large crowd. The Commission\nrecounted, however, that it returned to the Village Office following public participation.\n\nThe\n\nCommission also recounted that \"[ t]he public was allowed to return to the Village Office also,\nbut most did not do so. The Village Office doors remained open and the public was not\n\nexcluded.\" 4 The Commission further argued that it did not hold a separate meeting, and that its\ndraft minutes were incorrect in stating that it did so.\nIn her reply,\n\nrecounted that the public was told to leave following\n\npublic participation so that the Commission could discuss the rezoning request at issue and that\nthe public was not told that the Commission would be returning to the Village Office to continue\n\nthe meeting. She further noted that she stood with several people outside the office and did not\nsee the Commission return to the office. Additionally, she questioned the need to return to the\n\nVillage Office when the new space could better accommodate the large crowd.\n\n25 ILCS 120/2(a) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n35 ILCS 120/2.01 (West 2022).\n4 Letter from Brian C. Lawlyes, Acton & Snyder, LLP, to Benjamin J. Silver, Assistant Attorney\n\nOn February 8, 2024, an Assistant Attorney General in the Public Access Bureau\ne-mailed counsel for the Commission to gather additional information regarding how the\n\nCommission determined that its September 20, 2022, meeting minutes were incorrect, whether\nmembers of the public did attend the portion of the meeting back at the Village Office, whether\n\nthe Commission had approved the minutes for the meeting, and whether or not the Commission\nhad changed the minutes from the draft form provided to indicate that it did not hold a separate\n\nmeeting. To this date, this office has not received a response.\nAlthough the Commission argued in its response that its September 20, 2022,\nmeeting remained open to the public following public participation, it did not sufficiently explain\n\nhow the Commission \"indicated they would return to the Village Office * * * to continue their\nmeeting\" 5 and how it conveyed to the crowd that members of the public could join this open\n\nmeeting. The draft minutes, which are the only minutes this office has received, state that it held\na \" separate meeting\" to weigh the evidence and testimony it received during public participation.\n\nIn light of\n\ndescription of the events and personal attendance at the meeting, the\n\nCommission's response did not demonstrate that its meeting remained open to the public. Under\n\nthese circumstances, this office concludes that the Commission violated section 2(a) of OMA by\neffectively restricting the public from attending a portion of its September 20, 2022, meeting.\nWhile no remedial action is available under these circumstances, this office\n\nreminds the Commission of its obligation to hold meetings that are open to the public. The\nPublic Access Counselor has determined that resolution of this matter does not require the\n\nissuance of a binding opinion. This file is closed. If you have any questions, please contact me\nat benjamin. silver@ilag. gov or (773) 590- 7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n74390 o 2a improper mun\n\n5 Letter from Brian C. Lawlyes, Acton & Snyder, LLP, to Benjamin J. Silver, Assistant Attorney\nGeneral, Public Access Bureau (December 6, 2022), at 2."}
{"id":1399,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-12-30","case_number":null,"request_numbers":["74441"],"title":"Community Unit School District No. 300 LGBTQ+ Parent Advisory Committee not a public body under OMA","filename":"74441, issued December 30, 2022.pdf","rel_path":null,"word_count":948,"summary":"A requester alleged that a school district's LGBTQ+ Parent Advisory Committee violated the Open Meetings Act by denying them entry to a meeting. The PAC determined that the committee is an informal support group rather than a 'public body' subject to OMA requirements.","plain_summary":"A parent complained that they were barred from attending a school district's LGBTQ+ parent committee meeting. The Attorney General's office investigated and found that the committee is an informal support group, not an official government body. Because it is not a 'public body,' it does not have to follow the state's open meeting laws.","holding":"The PAC concluded that the LGBTQ+ Parent Advisory Committee is not a public body subject to the Open Meetings Act.","legal_question":"Whether the Community Unit School District No. 300 LGBTQ+ Parent Advisory Committee constitutes a 'public body' subject to the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Community Unit School District No. 300 LGBTQ+ Parent Advisory Committee","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester was denied access to a school district parent committee meeting based on their identity.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/74441, issued December 30, 2022.pdf","sha256":"1a2f2428fc4de8b3f3a8af117d3e38f22883281eee6d43f4865597a42209135a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public body","school district","open meetings act","parent committee"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 30, 2022\n\nRE: OMA Request for Review-2022 PAC 74441\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons set forth below, the Public Access\nBureau concludes that no further action is warranted as to this matter.\nIn your Request for Review, received on November 28, 2022, you alleged that the\nCommunity Unit School District No. 300 (District) LGBTQ+ Parent Advisory Committee\n(Committee) violated OMA by not permitting you to attend its November 28, 2022, meeting.\nYou alleged that you were informed by a District staff member that you could not attend the\nmeeting because you are not part of the LGBTQ+ community. You contend that because you are\na parent in the District, you are entitled to attend the Committee meetings.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides that \"[a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\" and that the submission \"must include a summary\nof the facts supporting the allegation.\"\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA (5 ILCS 120/1.02 (West 2020)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\n500 South Second Street, Springfield, Illinois 62701 •(217) 782-1090 •TTY: (877) 844-5461 •Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 6060 I •(312) 814-3000 •TTY: (800) 964-3013 •Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 •(618) 529-6400 •TTY: (877) 675-9339 •Fax: (618) 529-6416\n\n\fDecember 30, 2022\nPage 2\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nAn \"advisory body,\" for purposes of OMA, is an entity that has defined\nresponsibilities and is a formal part of the structure of the public body that it advises. Board of\nRegents of the Regency University System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist.\n1997). In contrast, OMA \"is not intended to open to the public the deliberations of merely\ninformal advisory committees who discuss internal\" affairs of a public body. Pope v. Parkinson,\n48 Ill. App. 3d 797, 800 (4th Dist. 1977). Factors to consider in determining whether a group\nconstitutes an advisory body under OMA include:\nwho appoints the members of the entity, the formality of their\nappointment, and whether they are paid for their tenure; the entity's\nassigned duties, including duties reflected in the entity's bylaws or\nauthorizing statute; whether its role is solely advisory or whether it\nalso has a deliberative or investigative function; whether the entity\nis subject to government control or otherwise accountable to any\npublic body; whether the group has a budget; its place within the\nlarger organization or institution of which it is a part; and the\nimpact of decisions or recommendations that the group makes.\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856,\n865 (1st Dist. 2003).\nSimilarly, courts have considered three primary factors in determining whether a group is a\n\"subsidiary body\" of a public body under OMA: \"(1) whether the entity has a legal existence\nindependent of government resolution; (2) the nature of functions performed by the entity; and\n(3) the degree of governmental control over the entity.\" Hopf v. Topcorp, Inc., 256 Ill. App. 3d\n887, 892 (1st Dist. 1993).\nBased on the publicly available descriptions of the Committee, it does not appear\nto be an advisory or subsidiary body of the District's Board of Education (Board), but rather a\nparent group. The \"LGBTQ+ Parent Advisory Forum\" is one of four groups listed on the\nDistrict's webpage for \"Parent Groups.\" It is described as \"a committee comprised of the parents\nand guardians of LGBTQ+ students and LGBTQ+ parents and guardians. Members have the\nopportunity to collaborate with the Inclusion Department so it can better support and meet the\nneeds of LGBTQ+ stakeholders within District 300 schools and the broader community.\" 1 The\nDistrict 300, Parent Groups, LGBTQ+ Parent Forum (LGBQT+ Forum),\nhttps://www.d300.org/D300-Parent-Groups (last visited December 27, 2022).\n1\n\n\fDecember 30, 2022\nPage 3\n\ngroup's goals are \"to provide parents and guardians with education and support, partner with\nfamilies to surface and address school-related needs, and build community and networking\nopportunities for LGBTQ+ parents and guardians, as well as the parents and guardians of\nLGBTQ+ students.\" 2 There is no indication that the group's members are formally appointed or\nthat the group has any deliberative function or is subject to the control of any branch of the\nDistrict or Board. Rather, the group appears to be an informal parent support group. Therefore,\nit is not a public body subject to the requirements of OMA.\nAccordingly, this file is closed. If you have any questions, you may contact me at\nlaura.harter@ilag.gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n74441 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable David Scarpino\nPresident\nBoard of Education\nCommunity Unit School District No. 300\n2550 Hamish Drive\nAlgonquin, Illinois 60102\ndavid.scarpino1@d300.org\n\nDistrict 300, Parent Groups, LGBTQ+ Parent Forum (LGBQT+ Forum),\nhttps://www.d300.org/D300-Parent-Groups (last visited December 27, 2022).\n2\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school district parent committee meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74441/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 30, 2022\n\nRE: OMA Request for Review-2022 PAC 74441\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(b) (West 2020)). For the reasons set forth below, the Public Access\nBureau concludes that no further action is warranted as to this matter.\nIn your Request for Review, received on November 28, 2022, you alleged that the\nCommunity Unit School District No. 300 (District) LGBTQ+ Parent Advisory Committee\n(Committee) violated OMA by not permitting you to attend its November 28, 2022, meeting.\nYou alleged that you were informed by a District staff member that you could not attend the\nmeeting because you are not part of the LGBTQ+ community. You contend that because you are\na parent in the District, you are entitled to attend the Committee meetings.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)) provides that \"[a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\" and that the submission \"must include a summary\nof the facts supporting the allegation.\"\n\"In order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 1.02 of\nOMA (5 ILCS 120/1.02 (West 2020)) defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nAn \"advisory body,\" for purposes of OMA, is an entity that has defined\nresponsibilities and is a formal part of the structure of the public body that it advises. Board of\nRegents of the Regency University System v. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist.\n1997). In contrast, OMA \"is not intended to open to the public the deliberations of merely\ninformal advisory committees who discuss internal\" affairs of a public body. Pope v. Parkinson,\n48 Ill. App. 3d 797, 800 (4th Dist. 1977). Factors to consider in determining whether a group\nconstitutes an advisory body under OMA include:\nwho appoints the members of the entity, the formality of their\nappointment, and whether they are paid for their tenure; the entity's\nassigned duties, including duties reflected in the entity's bylaws or\nauthorizing statute; whether its role is solely advisory or whether it\nalso has a deliberative or investigative function; whether the entity\nis subject to government control or otherwise accountable to any\npublic body; whether the group has a budget; its place within the\nlarger organization or institution of which it is a part; and the\nimpact of decisions or recommendations that the group makes.\nUniversity Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856,\n865 (1st Dist. 2003).\nSimilarly, courts have considered three primary factors in determining whether a group is a\n\"subsidiary body\" of a public body under OMA: \"(1) whether the entity has a legal existence\nindependent of government resolution; (2) the nature of functions performed by the entity; and\n(3) the degree of governmental control over the entity.\" Hopf v. Topcorp, Inc., 256 Ill. App. 3d\n887, 892 (1st Dist. 1993).\nBased on the publicly available descriptions of the Committee, it does not appear\nto be an advisory or subsidiary body of the District's Board of Education (Board), but rather a\nparent group. The \"LGBTQ+ Parent Advisory Forum\" is one of four groups listed on the\nDistrict's webpage for \"Parent Groups.\" It is described as \"a committee comprised of the parents\nand guardians of LGBTQ+ students and LGBTQ+ parents and guardians. Members have the\nopportunity to collaborate with the Inclusion Department so it can better support and meet the\n\ngroup's goals are \"to provide parents and guardians with education and support, partner with\nfamilies to surface and address school-related needs, and build community and networking\nopportunities for LGBTQ+ parents and guardians, as well as the parents and guardians of\nLGBTQ+ students.\" 2 There is no indication that the group's members are formally appointed or\nthat the group has any deliberative function or is subject to the control of any branch of the\nDistrict or Board. Rather, the group appears to be an informal parent support group. Therefore,\nit is not a public body subject to the requirements of OMA.\nAccordingly, this file is closed. If you have any questions, you may contact me at\nlaura.harter@ilag.gov.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n74441 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable David Scarpino\nPresident\nBoard of Education\nCommunity Unit School District No. 300\n2550 Hamish Drive\nAlgonquin, Illinois 60102\ndavid.scarpino1@d300.org\n\nDistrict 300, Parent Groups, LGBTQ+ Parent Forum (LGBQT+ Forum),\nhttps://www.d300.org/D300-Parent-Groups (last visited December 27, 2022).\n2"}
{"id":1401,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-04-11","case_number":null,"request_numbers":["74521"],"title":"Madison County Veterans' Assistance Commission violated OMA by allowing remote attendance without formal rules","filename":"74521, issued April 11, 2023.pdf","rel_path":null,"word_count":1770,"summary":"A requester alleged that the Madison County Veterans' Assistance Commission improperly allowed two members to attend and vote remotely at a meeting. The PAC determined that the Board violated the Open Meetings Act by failing to adopt formal rules for remote attendance as required by statute.","plain_summary":"A citizen complained that two members of a local government board participated and voted in a meeting by phone without proper authorization. The Attorney General's office found that the board violated the Open Meetings Act because they did not have the required formal rules in place to allow for remote attendance. While the board's actions did not change the outcome of the votes, they were instructed to formally adopt rules if they wish to allow remote participation in the future.","holding":"The Board of Directors of the Madison County Veterans' Assistance Commission improperly permitted two members to attend its November 2, 2022, meeting remotely.","legal_question":"Whether the Board of Directors violated the Open Meetings Act by allowing members to attend and vote remotely without having adopted formal rules for remote attendance as required by 5 ILCS 120/7.","disposition":"violation_found","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Madison County Veterans' Assistance Commission","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The board allowed two members to participate and vote remotely in a meeting without having adopted the necessary rules to permit such attendance.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_a_b_c/74521, issued April 11, 2023.pdf","sha256":"c5b3103f47679e1d6ee6c819c1c8859fbaf9248dbb2335dd52bb45cb80a902c7","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","voting","Open Meetings Act","board rules"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 11, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Rickie Hicks\n\nPresident, Board of Directors\nMadison County Veterans' Assistance Commission\n\n157 North Main Street, Suite 115\nEdwardsville, Illinois 62025\n\nmcvac@madisoncountyil.gov\nRE: OMA Request for Review – 2022 PAC 74521\nDear\n\nand Mr. Hicks:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Directors (Board) of the Madison County Veterans' Assistance\nCommission ( Commission) improperly permitted two members to attend its November 2, 2022,\n\nmeeting remotely.\nBACKGROUND\nOn December 5, 2022,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board improperly permitted two of its members to vote\n\nremotely at its monthly November meeting without meeting the requirements of section 7 of\nOMA ( 5 ILCS 120/ 7 ( West 2020)). In particular, two Board members voted by phone to\n\napprove past meeting minutes.\n\nasserted that the Board's bylaws only recognize in-\n\nperson voting, and that no resolutions addressed remote attendance by Board members. She also\n\ncontended that section 7(a) permits remote attendance by only one member. In subsequent\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fThe Honorable Rickie Hicks\nApril 11, 2023\n\nPage 2\n\ncorrespondence to this office,\n\nclarified that the meeting took place on November 2,\n\n2022.\nOn December 14, 2022, this office forwarded a copy of the Request for Review to\nthe President of the Board and asked the Board to provide this office with copies of its\n\nNovember 2, 2022, meeting agenda, minutes, and any Board rules governing remote attendance,\ntogether with a written response to\n\nOMA allegations. On December 23, 2022, this\n\noffice received the requested response, an Executive Order issued by the Commission's\nSuperintendent, and links to posted copies of meeting materials. On December 30, 2022, this\n\noffice forwarded a copy of the Board's response to\n\nshe replied on January 8, 2023.\n\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nAs an initial matter,\nreply to this office contended that the attorney,\nThomas Burkart, who submitted the Board' s response, was not counsel for the Board.\n\nSpecifically, she asserted:\nAs stated in Mr. Burkart’ s response, he represents the Veterans\nAssistance Commission of Madison County, Inc which is a 501c\n\n19. The Veterans Assistance Commission of Madison County,\nVACMC, ( local government) and the Veterans Assistance\n\nCommission of Madison County, 501c19, are two separate entities.\nI do not believe Mr. Burkart represents the Veterans Assistance\n\nCommission of Madison County, the unit of local government. I\nbelieve this because the commission of the VAC has not voted to\n\nhire an attorney to represent the VACMC local government.[1]\nBased on this office's review of the Board's August 25, 2022, meeting minutes,\nthe Board voted to retain Mr. Burkart as counsel for the Commission.\n\nThe minutes state:\n\nMotion was made by Larry Meisenheimer and seconded by\n\nKen Morales to ratify the retention of Thomas W. Burkart\nand Burkart Law Offices as legal counsel for the VAC in\n\n1E- mail from\n\nto AAG Lim (January 8, 2023).\n\n\fThe Honorable Rickie Hicks\nApril 11, 2023\n\nPage 3\n\naccordance with, and to permit the President to execute, the\n\nretainer agreement tendered to the Board. President Hicks\ndirected the Secretary to take a roll call vote on the motion. Upon\n\nroll call the vote was 11 in favor and 0 against. President Hicks\nannounced the motion carried.[ 2] ( Emphasis added.)\nFurther, as discussed above, this office sent a copy of the Request for Review to the Board\n\nPresident and subsequently received a response to the letter from Mr. Burkart. There is no\nindication that the Board President did not intend for Mr. Burkart to respond, and OMA does not\n\ncontain any requirements or restrictions concerning who responds to a Request for Review on\nbehalf of a public body. Accordingly, this office will consider Mr. Burkart' s response to the\n\nallegation that Board improperly permitted two members to attend the November 2, 2022,\nmeeting remotely.\nSection 7 of OMA ( 5 ILCS 120/ 7 ( West 2020)) sets forth the procedure and\n\nrequirements for allowing a member of the public body to attend a meeting by video or audio\nconference, as follows:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\n\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\n\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\n\nc) A majority of the public body may allow a member to\n\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules\n\nmust conform to the requirements and restrictions of this Section,\nmay further limit the extent to which attendance by other means is\n\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. ( Emphasis\n\nadded.)\n\n2Veterans' Assistance Commission of Madison County, Special Meeting, August 25, 2022, 3. ReOpened Meeting 2.\n\n\fThe Honorable Rickie Hicks\nApril 11, 2023\n\nPage 4\n\nThe Board's answer to this office denied that it violated the requirements of\nsection 7 when it permitted two members to attend remotely. The Board provided this office\n\nwith a copy of an Executive Order, dated October 27, 2022, that the Commission's\nSuperintendent had signed and published prior to the meeting. The Executive Order states, in\n\npertinent part:\nPursuant to the authority invested in the Superintendent under\nsection 10 of the Illinois Military Veterans Assistance Act ( 330\n\nILCS 45/10), by Executive Order, the following are made the rules\nof this Commission to permit a member of the Executive Board to\n\nattend a meeting of that Board by “ other means” as those terms are\ndefined in section 7 of the Open Meetings Act[.]\" 3\nThe Executive Order then enumerates those rules. On March 15, 2023, this office asked the\n\nBoard to describe the reasons for the two Board members' remote attendance. In response, the\nBoard explained that the two members could not attend in person due to illnesses, and that they\n\nhad notified the Superintendent ahead of the meeting of the need to attend remotely. The Board\nalso asserted that it had noted the two members' planned remote attendance in the agenda.\n\nThis office's review of the Board's November 2, 2022, meeting minutes confirmed\nthat a quorum of the Board' s members was physically present at the meeting. The minutes\n\nfurther reflect that the Board approved unanimously by roll call vote the two members' remote\nattendance.\n\nargued that only one member of a public body is permitted to attend\n\nremotely, but section 7(a) does not provide that limitation. That provision simply states that \"a\nmajority of the public body may allow a member of that body\" to attend by means other than\n\nphysical attendance for one of three reasons. The Board explained that the two members were\nprevented from physically attending because they were ill, which is one of the three permitted\n\nreasons for remote attendance of an in-person meeting under section 7(a) of OMA.\nHowever, the Board did not demonstrate that it had adopted rules that permitted\nthe two members to attend the meeting remotely. The plain language of section 7(c) only\n\npermits members of public bodies to attend in-person meetings by means other than physical\npresence \" in accordance with and to the extent allowed by rules adopted by the public body.\"\n\nEmphasis added.) While the Superintendent is vested with the executive powers of the\nCommission ( 330 ILCS 45/ 10 ( West 2020)), he is not a \" public body.\" The Executive Board is\n\n3Bradley Lavite, Superintendent, Veterans' Assistance Commission of Madison County, Inc.,\nExecutive Order (October 27, 2022).\n\n\fThe Honorable Rickie Hicks\nApril 11, 2023\n\nPage 5\n\nthe governing body of the Commission.\n\nThe Executive Board' s duties as the Corporate Board of\n\nDirectors include \"the conduct, the management, and the control of the affairs, the property, and\nthe personnel of the Veterans' Assistance Commission of Madison County Inc.\" 4 Because it is\n\nundisputed that the Board had not voted to approve the rules issued by the Superintendent or\notherwise adopted any rules on remote attendance at the time of the November 2, 2022, meeting,\n\nthis office concludes that the Board violated section 7(c) of OMA by permitting two members to\nattend the meeting by phone.\nThe minutes of the Board' s November 2, 2022, meeting indicate that the agenda\n\nitems upon which the Board took action were unanimously approved. Because the votes of the\ntwo Board members who attended remotely were not decisive, they did not substantively affect\n\nthe actions taken, and there are no means by which the Board can remedy its violation of section\n7(c) at this time. If the Board wishes to allow members to attend future meetings remotely, the\n\nBoard must formally adopt rules on remote attendance.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n74521 o 7c improper co\ncc:\n\nVia electronic mail\nMr. Thomas W. Burkart\n\nAttorney for Madison County Veterans' Assistance Commission\nBurkart Law Offices\n\n130 West State Street\nP.O. Box 447\n\nHamel, Illinois 62046\ntburkart@burkartlaw. com\n4Veterans' Assistance Commission of Madison County Inc., Bylaws, Article VI – Executive\nBoard, Section 6 (adopted June 15, 2017), available at\nhttps://cms4files.revize.com/madisoncountyilus/ VAC/Records%20and%20Documents/06152017%20VAC%20Byla\nws.pdf.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Remote attendance by board members without adopted rules","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74521/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 11, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Rickie Hicks\n\nPresident, Board of Directors\nMadison County Veterans' Assistance Commission\n\n157 North Main Street, Suite 115\nEdwardsville, Illinois 62025\n\nmcvac@madisoncountyil.gov\nRE: OMA Request for Review – 2022 PAC 74521\nDear\n\nand Mr. Hicks:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Directors (Board) of the Madison County Veterans' Assistance\nCommission (Commission) improperly permitted two members to attend its November 2, 2022,\n\nmeeting remotely.\nBACKGROUND\nOn December 5, 2022,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board improperly permitted two of its members to vote\n\nremotely at its monthly November meeting without meeting the requirements of section 7 of\nOMA (5 ILCS 120/ 7 (West 2020)). In particular, two Board members voted by phone to\n\napprove past meeting minutes.\n\nasserted that the Board's bylaws only recognize in-\n\nperson voting, and that no resolutions addressed remote attendance by Board members. She also\n\ncontended that section 7(a) permits remote attendance by only one member. In subsequent\n\ncorrespondence to this office,\n\nclarified that the meeting took place on November 2,\n\n2022.\nOn December 14, 2022, this office forwarded a copy of the Request for Review to\nthe President of the Board and asked the Board to provide this office with copies of its\n\nNovember 2, 2022, meeting agenda, minutes, and any Board rules governing remote attendance,\ntogether with a written response to\n\nOMA allegations. On December 23, 2022, this\n\noffice received the requested response, an Executive Order issued by the Commission's\nSuperintendent, and links to posted copies of meeting materials. On December 30, 2022, this\n\noffice forwarded a copy of the Board's response to\n\nshe replied on January 8, 2023.\n\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nAs an initial matter,\nreply to this office contended that the attorney,\nThomas Burkart, who submitted the Board's response, was not counsel for the Board.\n\nSpecifically, she asserted:\nAs stated in Mr. Burkart’ s response, he represents the Veterans\nAssistance Commission of Madison County, Inc which is a 501c\n\n19. The Veterans Assistance Commission of Madison County,\nVACMC, (local government) and the Veterans Assistance\n\nCommission of Madison County, 501c19, are two separate entities.\nI do not believe Mr. Burkart represents the Veterans Assistance\n\nCommission of Madison County, the unit of local government. I\nbelieve this because the commission of the VAC has not voted to\n\nhire an attorney to represent the VACMC local government.[1]\nBased on this office's review of the Board's August 25, 2022, meeting minutes,\nthe Board voted to retain Mr. Burkart as counsel for the Commission.\n\nThe minutes state:\n\naccordance with, and to permit the President to execute, the\n\nretainer agreement tendered to the Board. President Hicks\ndirected the Secretary to take a roll call vote on the motion. Upon\n\nroll call the vote was 11 in favor and 0 against. President Hicks\nannounced the motion carried.[ 2] (Emphasis added.)\nFurther, as discussed above, this office sent a copy of the Request for Review to the Board\n\nPresident and subsequently received a response to the letter from Mr. Burkart. There is no\nindication that the Board President did not intend for Mr. Burkart to respond, and OMA does not\n\ncontain any requirements or restrictions concerning who responds to a Request for Review on\nbehalf of a public body. Accordingly, this office will consider Mr. Burkart's response to the\n\nallegation that Board improperly permitted two members to attend the November 2, 2022,\nmeeting remotely.\nSection 7 of OMA (5 ILCS 120/ 7 (West 2020)) sets forth the procedure and\n\nrequirements for allowing a member of the public body to attend a meeting by video or audio\nconference, as follows:\na) If a quorum of the members of the public body is\nphysically present as required by Section 2.01, a majority of the\n\npublic body may allow a member of that body to attend the\nmeeting by other means if the member is prevented from\n\nphysically attending because of: (i) personal illness or disability;\nii) employment purposes or the business of the public body; or\n\niii) a family or other emergency. \" Other means\" is by video or\naudio conference.\n\nc) A majority of the public body may allow a member to\n\nattend a meeting by other means only in accordance with and to the\nextent allowed by rules adopted by the public body. The rules\n\nmust conform to the requirements and restrictions of this Section,\nmay further limit the extent to which attendance by other means is\n\nallowed, and may provide for the giving of additional notice to the\npublic or further facilitate public access to meetings. (Emphasis\n\nadded.)\n\n2 Veterans' Assistance Commission of Madison County, Special Meeting, August 25, 2022, 3. ReOpened Meeting 2.\n\nThe Board's answer to this office denied that it violated the requirements of\nsection 7 when it permitted two members to attend remotely. The Board provided this office\n\nwith a copy of an Executive Order, dated October 27, 2022, that the Commission's\nSuperintendent had signed and published prior to the meeting. The Executive Order states, in\n\npertinent part:\nPursuant to the authority invested in the Superintendent under\nsection 10 of the Illinois Military Veterans Assistance Act (330\n\nILCS 45/10), by Executive Order, the following are made the rules\nof this Commission to permit a member of the Executive Board to\n\nattend a meeting of that Board by “ other means” as those terms are\ndefined in section 7 of the Open Meetings Act[.]\" 3\nThe Executive Order then enumerates those rules. On March 15, 2023, this office asked the\n\nBoard to describe the reasons for the two Board members' remote attendance. In response, the\nBoard explained that the two members could not attend in person due to illnesses, and that they\n\nhad notified the Superintendent ahead of the meeting of the need to attend remotely. The Board\nalso asserted that it had noted the two members' planned remote attendance in the agenda.\n\nThis office's review of the Board's November 2, 2022, meeting minutes confirmed\nthat a quorum of the Board's members was physically present at the meeting. The minutes\n\nfurther reflect that the Board approved unanimously by roll call vote the two members' remote\nattendance.\n\nargued that only one member of a public body is permitted to attend\n\nremotely, but section 7(a) does not provide that limitation. That provision simply states that \"a\nmajority of the public body may allow a member of that body\" to attend by means other than\n\nphysical attendance for one of three reasons. The Board explained that the two members were\nprevented from physically attending because they were ill, which is one of the three permitted\n\nreasons for remote attendance of an in-person meeting under section 7(a) of OMA.\nHowever, the Board did not demonstrate that it had adopted rules that permitted\nthe two members to attend the meeting remotely. The plain language of section 7(c) only\n\npermits members of public bodies to attend in-person meetings by means other than physical\npresence \" in accordance with and to the extent allowed by rules adopted by the public body.\"\n\nEmphasis added.) While the Superintendent is vested with the executive powers of the\nCommission (330 ILCS 45/ 10 (West 2020)), he is not a \" public body.\" The Executive Board is\n\nthe governing body of the Commission.\n\nThe Executive Board's duties as the Corporate Board of\n\nDirectors include \"the conduct, the management, and the control of the affairs, the property, and\nthe personnel of the Veterans' Assistance Commission of Madison County Inc.\" 4 Because it is\n\nundisputed that the Board had not voted to approve the rules issued by the Superintendent or\notherwise adopted any rules on remote attendance at the time of the November 2, 2022, meeting,\n\nthis office concludes that the Board violated section 7(c) of OMA by permitting two members to\nattend the meeting by phone.\nThe minutes of the Board's November 2, 2022, meeting indicate that the agenda\n\nitems upon which the Board took action were unanimously approved. Because the votes of the\ntwo Board members who attended remotely were not decisive, they did not substantively affect\n\nthe actions taken, and there are no means by which the Board can remedy its violation of section\n7(c) at this time. If the Board wishes to allow members to attend future meetings remotely, the\n\nBoard must formally adopt rules on remote attendance.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n74521 o 7c improper co\ncc:\n\nVia electronic mail\nMr. Thomas W. Burkart\n\nAttorney for Madison County Veterans' Assistance Commission\nBurkart Law Offices\n\n130 West State Street\nP.O. Box 447\n\nHamel, Illinois 62046\ntburkart@burkartlaw. com\n4 Veterans' Assistance Commission of Madison County Inc., Bylaws, Article VI – Executive\nBoard, Section 6 (adopted June 15, 2017), available at\nhttps://cms4files.revize.com/madisoncountyilus/ VAC/Records%20and%20Documents/06152017%20VAC%20Byla\nws.pdf."}
{"id":1402,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-08-01","case_number":null,"request_numbers":["74576"],"title":"Village of Winnetka Village Council did not violate OMA in closed session under litigation exception","filename":"74576, issued August 1, 2023.pdf","rel_path":null,"word_count":2399,"summary":"A requester alleged that the Village of Winnetka improperly held a closed session under the litigation exception to discuss a resolution; the PAC determined the discussion was properly related to imminent litigation.","plain_summary":"A citizen complained that the Village of Winnetka improperly discussed a resolution behind closed doors instead of in a public meeting. The Attorney General's office reviewed and found that the closed session was legally permitted because the Council had reasonable grounds to believe litigation was probable or imminent, and the discussion was confined to litigation matters, not the merits of the resolution. Therefore, the Village did not violate the Open Meetings Act.","holding":"The Village of Winnetka Village Council did not hold an improper closed session discussion during its December 6, 2022, meeting.","legal_question":"Whether the Village of Winnetka violated the Open Meetings Act by discussing a resolution in a closed session under the litigation exception (5 ILCS 120/2(c)(11)).","disposition":"no_violation","primary_statute":["5 ILCS 120/2(c)(11)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"Village of Winnetka Village Council","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Village Council held a closed session to discuss potential litigation and a related resolution.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_11/Meaning-of-probable-or-imminent/74576, issued August 1, 2023.pdf","sha256":"519bfd12fa19403a5a7aa4ff5f9f7b665db65bbfb140e8ca9c94db7e7fef9cb2","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","litigation exception","Open Meetings Act","Village Council"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 1, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Benjamin L. Schuster\nElrod Friedman LLP\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\nBenjamin. Schuster@ElrodFriedman. com\nRE: OMA Request for Review – 2022 PAC 74576\nDear\n\nand Mr. Schuster:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Village of Winnetka Village Council ( Council) did not hold an improper\nclosed session discussion during its December 6, 2022, meeting.\nOn December 8, 2022,\nsubmitted a Request for\nReview concerning the closed session portion of the Council' s December 6, 2022, meeting. The\nVillage entered closed session under the exception–– to the general requirement that public\nbodies conduct public business openly–– in section 2(c)(11) of OMA. 1 That exception authorizes\npublic bodies to hold closed session discussions concerning litigation that is pending or\nprobable or imminent[.]\"\nalleges that ( 1) litigation was not probable or\nimminent at the time of the meeting, and that ( 2) rather than discussing litigation in closed\nsession, the Council discussed a resolution that it subsequently adopted in open session.\n\n15 ILCS 120/ 2(c)(11) ( West 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Benjamin Schuster\nAugust 1, 2023\nPage 2\n\nOn December 15, 2022, this office sent a copy of the Request for Review to the\nCouncil and asked it provide copies of the agenda, closed session minutes ( draft form if\nnecessary), and closed session verbatim recording of the Council' s December 6, 2022, meeting.\nThis office also asked the Council to provide a written answer to\nallegation\nthat the section 2(c)(11) exception did not authorize the Council' s closed session discussion. On\nDecember 28, 2022, the Council' s attorney submitted those materials, including an unredacted\ncopy of its written answer and a redacted version with information provided confidentially\npursuant to section 3.5(c) of OMA. 2 On January 4, 2023, this office forwarded the redacted copy\nof the Council' s response to\nhe replied on January 5, 2023.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989). OMA requires that all meetings of a public body remain open to the\npublic unless the public body properly invokes an exception in section 2(c) of OMA. 5 ILCS\n120/ 2(a), ( c) ( West 2022). The section 2(c) exceptions are to be \" strictly construed, extending\nonly to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2022).\nSection 2(c)(11) of OMA authorizes a public body to close a meeting to discuss:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds an\naction is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\nTo properly discuss \" probable or imminent\" litigation in closed session, \" there must be\nreasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such\nan occurrence is close at hand[ ]\" when considering \" the surrounding circumstances in light of\nlogic, experience, and reason.\" 1983 Ill. Att'y Gen. Op. No. 26, issued December 23, 1983, at\n10.\n2\"\n\nThe Public Access Counselor shall forward a copy of the answer or redacted answer, if\nfurnished, to the person submitting the request for review.\" 5 ILCS 120/ 3.5(c) (West 2022).\nThe answer may take the form of a letter, brief, or memorandum. Upon request, the public body\nmay also furnish the Public Access Counselor with a redacted copy of the answer excluding specific references to\nany matters at issue.\" 5 ILCS 120/ 3.5(c) (West 2022).\n\n\fMr. Benjamin Schuster\nAugust 1, 2023\nPage 3\n\nThe Council' s response to this office explained that the closed session and\nresolution at issue concerned a proposed plat that would consolidate four lots into a single lot,\nupon which a property owner planned to build a lakefront home with a private beach. The plan\ngenerated considerable opposition and media attention, partly because of a proposed land\nexchange in which the property owner would have obtained a portion of a public beach owned\nby the Village' s Park District. 3 That deal, which has not been executed, triggered a lawsuit\nagainst the Park District by a neighboring property owner. The Council' s response to this office\nstated that before the closed session portion of the December 6, 2022, meeting, the neighboring\nproperty owner' s attorney made a presentation in which he also \" threatened to sue the Village if\nthe Village Council approved the consolidation.\" 4 ( Emphasis in original.) The response further\nstated that attorneys for the property owner who intends to build the home threatened both before\nand during the meeting to sue the Village if it did not approve the consolidation. In his reply,\nasserted that, \" at the time the Council entered closed session, no litigation of\nany kind was 'probable or imminent,' * * * [ a] s the Council had not yet considered, voted, and\neither accepted or rejected the resolution[.]\" 5 He contended that \" it seems implausible to believe\nthat a lack of action by the Council would have resulted in the immediate filing of a legal\nchallenge by\" the property owner who intended to build a home. 6 He also stated that he is\nunaware of any litigation filed by either property owner since the meeting.\nThe Council' s December 6, 2022, meeting agenda included an action item on a\nproposed resolution to adopt the plat of consolidation described above. 7 This office' s review of a\nrecording of the open session portion of the meeting verified that before entering closed session,\nthe attorney for the property owner opposing the consolidation threatened to sue the Village if\nthe Council approved the resolution, and the attorney for the property owner in favor of\n\n3Brian J. Rogal and Alex Hulvalchick, In Winnetka, a plan to swap lakefront tracts with a\nbillionaire has sparked debate. ' I think nature belongs to all of us', CHICAGO TRIBUNE, ( December 11, 2022,\n5:00 a.m.), https:// www. chicagotribune. com/ business/ ct-biz- winnetka- land- swap- 20221211ffvr5d5gcjhpxcohjdym4cmk2q- story. html\n4Letter from Peter M. Friedman, Elrod Friedman LLP, to Steve Silverman, Bureau Chief, Public\nAccess Bureau ( December 27, 2022), at 4.\n5Letter from\nJanuary 5, 2023), at 2.\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\n6Letter from\nJanuary 5, 2023), at 2.\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\n7Village of Winnetka Village Council, Regular Meeting, Agenda Item 9(c) (December 6, 2022).\n\n\fMr. Benjamin Schuster\nAugust 1, 2023\nPage 4\n\nconsolidation threatened to sue the Village if it failed to approve the resolution. 8 There is no\nindication that these were idle threats, or that taking no action at the meeting would have staved\noff litigation. Even if postponing the vote could have been expected to delay the filing of a\nlawsuit, the Council eventually would have had to act on the proposed consolidation. A\nlikelihood that litigation would be immediately filed is not required for section 2(c)(11) to\nauthorize a closed session discussion. Instead, there must be reasonable grounds to believe\nlitigation was \" probable or imminent.\" ( Emphasis added.) 5 ILCS 120/ 2(c)(11) ( West 2022).\nBecause the Council had received seemingly credible threats of litigation from attorneys for both\nthe property owner supporting the consolidation and the property owner opposing it, the\nsurrounding circumstances provided a sufficient basis for the Council to reasonably believe\nlitigation was at least probable when it voted to enter closed session at its December 6, 2022,\nmeeting. The fact that such litigation apparently has not ensued does not render unreasonable the\nCouncil' s belief that litigation was probable or imminent at the time of the meeting.\nWith respect to the substance of the closed session, section 2(c)( 11) authorizes\ndiscussion of \"legal theories, defenses, claims, or possible approaches to litigation.\" City of\nBloomington v. Raoul, 2021 IL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372 ( 2021). Generally,\nit is not permissible for a public body to use the closed session to discuss taking an action or to\nmake a decision on the underlying issue that is likely to be the subject of the litigation.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 12-013, issued November 5, 2012, at 4.\nRequest for Review alleged that the Council discussed in\nclosed session the plat consolidation resolution rather than litigation. He stated that the Council\nvoted to approve the resolution after the closed session without discussing it. The recording of\nthe open session portion of the meeting shows that after returning from closed session, the\nVillage considered an amended version of the resolution with language added to clarify that\napproval of the plat of consolidation was not an adjudication, determination, or opinion on the\neastern property line, and that the Village reserved the right to determine the property line for\npurposes of applying the Village zoning code if that issue was presented to the Village in the\nfuture. The Village' s attorney explained that the purpose of the amendment was to make it clear\nthat the plat of consolidation under consideration does not convey or transfer property, and that\nany determination about the property line would be addressed under the zoning code if\nnecessary. The Village President called for a vote after emphasizing that the Council would\naddress additional concerns about the lakefront development at subsequent meetings. The\nCouncil then unanimously voted to approve the plat consolidation. 9\n8Village of Winnetka Village Council, Regular Meeting, December 6, 2022, Video Recording,\navailable at https:// www.youtube. com/ watch?v=fHRb_GNhTcc.\n9Village of Winnetka Village Council, Regular Meeting, December 6, 2022, Video Recording,\navailable at https:// www. youtube. com/ watch? v=fHRb_ GNhTcc.\n\n\fMr. Benjamin Schuster\nAugust 1, 2023\nPage 5\n\nThe Council' s response to this office emphasized that the Council did not discuss\nthe merits of the plat consolidation in closed session. The Village confidentially provided\nadditional argument about how it confined its discussion to the scope of section 2(c)(11). In his\nreply,\nasserted that the statements made after the Council returned from\nclosed session appear to demonstrate \" that a significant portion of the closed session was devoted\nto discussion of the resolution itself, and not any alleged ' litigation,' and that this discussion was\nnot, in fact, a related topic, but the primary topic of discussion in closed session.\" 10\nWhile section 2(b) of OMA expressly provides that the exceptions permitting\nclosed session discussions are to be strictly construed, courts have recognized the practical\nnecessity of addressing interrelated topics in order to have meaningful discussions. In Galena\nGazette Publications Inc., v. County of Jo Daviess, 375 Ill. App. 3d 338, 344- 345 ( 2d Dist.\n2007), the appellate court rejected the plaintiff' s contention that a closed session discussion under\nthe exception for \"[ t]he purchase or lease of real property for the use of the public body[ ]\" 11\nimproperly strayed into peripheral topics such as whether promotional materials could be\ndisplayed at the property. The court explained that \"[ t]he participants did not discuss the racking\nof promotional literature separately from their consideration of the proposed subleasing\narrangement * * *. To abstract any such discussions from the larger context would ignore the\nparticipants' purposes in raising the issue of the display of promotional materials.\" Galena\nGazette Publications Inc., 375 Ill. App. 3d at 344. Similarly, in Gosnell, 179 Ill. App. 3d at 17576 (5th Dist. 1989), the court concluded that a school board' s closed session discussion of\ncomplaints against an employee, under the exception for employees' performance, permissibly\nincluded a discussion of goals for the employee because the complaints and goals were\ninextricably intertwined. The court explained that \" when a related topic plays an integral part in\nthe discussion of the original topic to be considered in closed session, business practicality and\nefficiency dictate that the related topic be discussed along with the primary topic.\" Gosnell, 179\nIll. App. 3d at 177.\nThis office' s review of the verbatim recording confirmed that the closed session\ndiscussion was permissible under section 2(c)(11) of OMA. Although we are unable to fully\nexplain our reasoning because the verbatim closed session recording and most of the Village' s\nargument about the scope of the section 2(c)(11) exception were provided confidentially, we note\nthat our review of the recording corroborated the Council' s assertion that Council members did\nnot deliberate about the merits of the resolution or whether to vote for or against it. To the extent\nthat the discussion did concern the resolution that the Council subsequently voted on in open\n\n10Letter from\nJanuary 5, 2023), at 2.\n115 ILCS 120/2(c)(5) (West 2004).\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\n\fMr. Benjamin Schuster\nAugust 1, 2023\nPage 6\n\nsession, that discussion was inextricably intertwined with considerations about probable or\nimminent litigation and protecting the Village from potential liability. Under the circumstances,\nit would not have been possible for the Council to have a meaningful discussion about probable\nor imminent litigation facing the Village if the resolution was excluded from that discussion.\nAccordingly, this office concludes the Village' s closed session discussion did not violate OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756 or steven. silverman@ilag. gov. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n74576 f 2c11 proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of litigation and a resolution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74576/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 1, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Benjamin L. Schuster\nElrod Friedman LLP\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\nBenjamin. Schuster@ElrodFriedman. com\nRE: OMA Request for Review – 2022 PAC 74576\nDear\n\nand Mr. Schuster:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Village of Winnetka Village Council (Council) did not hold an improper\nclosed session discussion during its December 6, 2022, meeting.\nOn December 8, 2022,\nsubmitted a Request for\nReview concerning the closed session portion of the Council's December 6, 2022, meeting. The\nVillage entered closed session under the exception–– to the general requirement that public\nbodies conduct public business openly–– in section 2(c)(11) of OMA. 1 That exception authorizes\npublic bodies to hold closed session discussions concerning litigation that is pending or\nprobable or imminent[.]\"\nalleges that (1) litigation was not probable or\nimminent at the time of the meeting, and that (2) rather than discussing litigation in closed\nsession, the Council discussed a resolution that it subsequently adopted in open session.\n\n15 ILCS 120/ 2(c)(11) (West 2022).\n\nOn December 15, 2022, this office sent a copy of the Request for Review to the\nCouncil and asked it provide copies of the agenda, closed session minutes (draft form if\nnecessary), and closed session verbatim recording of the Council's December 6, 2022, meeting.\nThis office also asked the Council to provide a written answer to\nallegation\nthat the section 2(c)(11) exception did not authorize the Council's closed session discussion. On\nDecember 28, 2022, the Council's attorney submitted those materials, including an unredacted\ncopy of its written answer and a redacted version with information provided confidentially\npursuant to section 3.5(c) of OMA. 2 On January 4, 2023, this office forwarded the redacted copy\nof the Council's response to\nhe replied on January 5, 2023.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989). OMA requires that all meetings of a public body remain open to the\npublic unless the public body properly invokes an exception in section 2(c) of OMA. 5 ILCS\n120/ 2(a), (c) (West 2022). The section 2(c) exceptions are to be \" strictly construed, extending\nonly to subjects clearly within their scope.\" 5 ILCS 120/ 2(b) (West 2022).\nSection 2(c)(11) of OMA authorizes a public body to close a meeting to discuss:\nLitigation, when an action against, affecting or on behalf of\nthe particular public body has been filed and is pending before a\ncourt or administrative tribunal, or when the public body finds an\naction is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the closed\nmeeting.\nTo properly discuss \" probable or imminent\" litigation in closed session, \" there must be\nreasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such\nan occurrence is close at hand[ ]\" when considering \" the surrounding circumstances in light of\nlogic, experience, and reason.\" 1983 Ill. Att'y Gen. Op. No. 26, issued December 23, 1983, at\n10.\n2\"\n\nThe Public Access Counselor shall forward a copy of the answer or redacted answer, if\nfurnished, to the person submitting the request for review.\" 5 ILCS 120/ 3.5(c) (West 2022).\nThe answer may take the form of a letter, brief, or memorandum. Upon request, the public body\nmay also furnish the Public Access Counselor with a redacted copy of the answer excluding specific references to\n\nThe Council's response to this office explained that the closed session and\nresolution at issue concerned a proposed plat that would consolidate four lots into a single lot,\nupon which a property owner planned to build a lakefront home with a private beach. The plan\ngenerated considerable opposition and media attention, partly because of a proposed land\nexchange in which the property owner would have obtained a portion of a public beach owned\nby the Village's Park District. 3 That deal, which has not been executed, triggered a lawsuit\nagainst the Park District by a neighboring property owner. The Council's response to this office\nstated that before the closed session portion of the December 6, 2022, meeting, the neighboring\nproperty owner's attorney made a presentation in which he also \" threatened to sue the Village if\nthe Village Council approved the consolidation.\" 4 (Emphasis in original.) The response further\nstated that attorneys for the property owner who intends to build the home threatened both before\nand during the meeting to sue the Village if it did not approve the consolidation. In his reply,\nasserted that, \" at the time the Council entered closed session, no litigation of\nany kind was 'probable or imminent,' * * * [ a] s the Council had not yet considered, voted, and\neither accepted or rejected the resolution[.]\" 5 He contended that \" it seems implausible to believe\nthat a lack of action by the Council would have resulted in the immediate filing of a legal\nchallenge by\" the property owner who intended to build a home. 6 He also stated that he is\nunaware of any litigation filed by either property owner since the meeting.\nThe Council's December 6, 2022, meeting agenda included an action item on a\nproposed resolution to adopt the plat of consolidation described above. 7 This office's review of a\nrecording of the open session portion of the meeting verified that before entering closed session,\nthe attorney for the property owner opposing the consolidation threatened to sue the Village if\nthe Council approved the resolution, and the attorney for the property owner in favor of\n\n3 Brian J. Rogal and Alex Hulvalchick, In Winnetka, a plan to swap lakefront tracts with a\nbillionaire has sparked debate. ' I think nature belongs to all of us', CHICAGO TRIBUNE, (December 11, 2022,\n5:00 a.m.), https:// www. chicagotribune. com/ business/ ct-biz- winnetka- land- swap- 20221211ffvr5d5gcjhpxcohjdym4cmk2q- story. html\n4 Letter from Peter M. Friedman, Elrod Friedman LLP, to Steve Silverman, Bureau Chief, Public\nAccess Bureau (December 27, 2022), at 4.\n5 Letter from\nJanuary 5, 2023), at 2.\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\n6 Letter from\nJanuary 5, 2023), at 2.\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\n7 Village of Winnetka Village Council, Regular Meeting, Agenda Item 9(c) (December 6, 2022).\n\nconsolidation threatened to sue the Village if it failed to approve the resolution. 8 There is no\nindication that these were idle threats, or that taking no action at the meeting would have staved\noff litigation. Even if postponing the vote could have been expected to delay the filing of a\nlawsuit, the Council eventually would have had to act on the proposed consolidation. A\nlikelihood that litigation would be immediately filed is not required for section 2(c)(11) to\nauthorize a closed session discussion. Instead, there must be reasonable grounds to believe\nlitigation was \" probable or imminent.\" (Emphasis added.) 5 ILCS 120/ 2(c)(11) (West 2022).\nBecause the Council had received seemingly credible threats of litigation from attorneys for both\nthe property owner supporting the consolidation and the property owner opposing it, the\nsurrounding circumstances provided a sufficient basis for the Council to reasonably believe\nlitigation was at least probable when it voted to enter closed session at its December 6, 2022,\nmeeting. The fact that such litigation apparently has not ensued does not render unreasonable the\nCouncil's belief that litigation was probable or imminent at the time of the meeting.\nWith respect to the substance of the closed session, section 2(c)(11) authorizes\ndiscussion of \"legal theories, defenses, claims, or possible approaches to litigation.\" City of\nBloomington v. Raoul, 2021 IL App (4th) 190539, ¶ 36, 184 N.E.3d 366, 372 (2021). Generally,\nit is not permissible for a public body to use the closed session to discuss taking an action or to\nmake a decision on the underlying issue that is likely to be the subject of the litigation.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 12-013, issued November 5, 2012, at 4.\nRequest for Review alleged that the Council discussed in\nclosed session the plat consolidation resolution rather than litigation. He stated that the Council\nvoted to approve the resolution after the closed session without discussing it. The recording of\nthe open session portion of the meeting shows that after returning from closed session, the\nVillage considered an amended version of the resolution with language added to clarify that\napproval of the plat of consolidation was not an adjudication, determination, or opinion on the\neastern property line, and that the Village reserved the right to determine the property line for\npurposes of applying the Village zoning code if that issue was presented to the Village in the\nfuture. The Village's attorney explained that the purpose of the amendment was to make it clear\nthat the plat of consolidation under consideration does not convey or transfer property, and that\nany determination about the property line would be addressed under the zoning code if\nnecessary. The Village President called for a vote after emphasizing that the Council would\naddress additional concerns about the lakefront development at subsequent meetings. The\n\nThe Council's response to this office emphasized that the Council did not discuss\nthe merits of the plat consolidation in closed session. The Village confidentially provided\nadditional argument about how it confined its discussion to the scope of section 2(c)(11). In his\nreply,\nasserted that the statements made after the Council returned from\nclosed session appear to demonstrate \" that a significant portion of the closed session was devoted\nto discussion of the resolution itself, and not any alleged ' litigation,' and that this discussion was\nnot, in fact, a related topic, but the primary topic of discussion in closed session.\" 10\nWhile section 2(b) of OMA expressly provides that the exceptions permitting\nclosed session discussions are to be strictly construed, courts have recognized the practical\nnecessity of addressing interrelated topics in order to have meaningful discussions. In Galena\nGazette Publications Inc., v. County of Jo Daviess, 375 Ill. App. 3d 338, 344- 345 (2d Dist.\n2007), the appellate court rejected the plaintiff's contention that a closed session discussion under\nthe exception for \"[ t]he purchase or lease of real property for the use of the public body[ ]\" 11\nimproperly strayed into peripheral topics such as whether promotional materials could be\ndisplayed at the property. The court explained that \"[ t]he participants did not discuss the racking\nof promotional literature separately from their consideration of the proposed subleasing\narrangement * * *. To abstract any such discussions from the larger context would ignore the\nparticipants' purposes in raising the issue of the display of promotional materials.\" Galena\nGazette Publications Inc., 375 Ill. App. 3d at 344. Similarly, in Gosnell, 179 Ill. App. 3d at 17576 (5th Dist. 1989), the court concluded that a school board's closed session discussion of\ncomplaints against an employee, under the exception for employees' performance, permissibly\nincluded a discussion of goals for the employee because the complaints and goals were\ninextricably intertwined. The court explained that \" when a related topic plays an integral part in\nthe discussion of the original topic to be considered in closed session, business practicality and\nefficiency dictate that the related topic be discussed along with the primary topic.\" Gosnell, 179\nIll. App. 3d at 177.\nThis office's review of the verbatim recording confirmed that the closed session\ndiscussion was permissible under section 2(c)(11) of OMA. Although we are unable to fully\nexplain our reasoning because the verbatim closed session recording and most of the Village's\nargument about the scope of the section 2(c)(11) exception were provided confidentially, we note\nthat our review of the recording corroborated the Council's assertion that Council members did\nnot deliberate about the merits of the resolution or whether to vote for or against it. To the extent\nthat the discussion did concern the resolution that the Council subsequently voted on in open\n\nsession, that discussion was inextricably intertwined with considerations about probable or\nimminent litigation and protecting the Village from potential liability. Under the circumstances,\nit would not have been possible for the Council to have a meaningful discussion about probable\nor imminent litigation facing the Village if the resolution was excluded from that discussion.\nAccordingly, this office concludes the Village's closed session discussion did not violate OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756 or steven. silverman@ilag. gov. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n74576 f 2c11 proper mun"}
{"id":1404,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-08-10","case_number":null,"request_numbers":["74629"],"title":"Chicago Board of Ethics violated OMA by discussing query report in closed session","filename":"74629, issued August 10, 2023.pdf","rel_path":null,"word_count":1875,"summary":"A requester alleged that the City of Chicago Board of Ethics improperly discussed a 'query report' in a closed session. The PAC determined that the Board violated the Open Meetings Act because the report did not qualify for the cited closed session exceptions.","plain_summary":"A citizen complained that the Chicago Board of Ethics held a private meeting to discuss a report that should have been discussed in public. The Attorney General's office reviewed the meeting recording and found that the Board did not have a legal reason to keep that specific discussion private. This means the Board failed to follow the transparency requirements of the Open Meetings Act.","holding":"The City of Chicago Board of Ethics violated the Open Meetings Act by discussing a query report in closed session that did not fall under the cited exceptions of section 2(c)(1) or 2(c)(4).","legal_question":"Whether the City of Chicago Board of Ethics properly invoked OMA exceptions 2(c)(1) and 2(c)(4) to discuss a 'query report' in closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(1)","5 ILCS 120/2(c)(4)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)","5 ILCS 120/2(c)(4)"],"public_body":"City of Chicago Board of Ethics","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Ethics discussed a 'query report' during a closed session meeting.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/74629, issued August 10, 2023.pdf","sha256":"f46c94c6218735de8e2cf2fc79e5d561cab5127a86ab573371f066cc351fa285","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","ethics board","open meetings act","transparency"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 10, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard Superfine\nLegal Counsel\nCity of Chicago Board of Ethics\n740 North Sedgwick\nChicago, Illinois 60654\nrichard. superfine@cityofchicago. org\nRE: OMA Request for Review – 2022 PAC 74629\nDear\n\nand Mr. Superfine:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). For the reasons that follow, the Public Access Bureau concludes that the City of\nChicago Board of Ethics ( Board) violated OMA at its November 14, 2022, meeting.\n1\n\nBACKGROUND\nOn December 14, 2022,\nsubmitted a Request for Review alleging\nthat the Board improperly discussed a \" query report\" in the closed session portion of its\nNovember 14, 2022, meeting. Specifically,\nalleged that the report did not fall within the\nscope of the exceptions in section 2(c)( 1) or 2(c)( 4) of OMA 2 that the Board cited as its bases for\nentering closed session.\n\n15 ILCS 120/ 3.5(e) ( West 2022).\n25 ILCS 120/ 2(c)(1), (c)(4) (West 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: ( 217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Richard Superfine\nAugust 10, 2023\nPage 2\n\nOn December 21, 2022, this office sent a copy of the Request for Review to the\nBoard and asked it to provide a written answer and copies of the November 14, 2022, meeting\nagenda, open and closed session minutes, as well as the verbatim recording of the closed session.\nOn January 20, 2023, the Board provided this office with the requested materials. On January\n24, 2023, this office forwarded a copy of the Board' s response to\nhe did not reply.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 3 Section 2(a) of OMA 4 provides that all\nmeetings of a public body shall be open to the public unless the subject of discussion falls within\none of the exceptions set out in subsection 2(c) of OMA. 5\nSection 2(c)( 1) of OMA\nSection 2(c)(1) of OMA permits a public body to hold a closed session to discuss,\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" as well as specified independent contractors or volunteers and legal counsel of the\npublic body. 6\nIn its answer to this office, the Board asserted that section 2(c)(1) of OMA\nauthorized the closed discussion of the \" query report\" on the grounds that \" if the Board may\nconfidentially consider a matter under the [ City's Ethics] Ordinance for a City employee, then it\nmay do the same for a City elected official.\" 7 However, under section 2(b) of OMA, exceptions\nare to be \" strictly construed, extending only to subjects clearly within their scope.\" 8 The plain\nlanguage of section 2(c)( 1) of OMA is limited to \" specific employees\" and specified independent\ncontractors or volunteers and legal counsel of a public body; it does not encompass elected\nofficials. In a binding opinion, the Attorney General concluded that section 2(c)(1) does not\n35 ILCS 120/ 1 (West 2022).\n45 ILCS 120/ 2(a) ( West 2022).\n55 ILCS 120/ 2(c) (West 2022).\n65 ILCS 120/ 2(c)(1) (West 2022).\n7Letter from Richard Superfine, Legal Counsel, Board of Ethics, City of Chicago, to Victoria\nFrazier, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, January 17,\n2023, at 2.\n85 ILCS 120/ 2(b) (West 2022).\n\n\fMr. Richard Superfine\nAugust 10, 2023\nPage 3\n\napply to elected officials. Ill. Att'y Gen. Pub. Acc. Op. No. 17-023, issued November 21, 2017,\nat 4 (\" Because elected members of a Village Board are occupants of a public office, not\nemployees' of public bodies, section 2(c)(1) would not have provided a basis for the Board to\nclose a meeting to discuss the conduct of a Board member.\"). Accordingly, the Board' s reliance\non section 2(c)(1) to discuss the \" query report\" during its November 14, 2022, closed session\nwas improper.\nSection 2(c)( 4) of OMA\nAs noted above, the Board also cited 2(c)(4) of OMA 9 as a basis for entering\nclosed session during its November 14, 2022, meeting. Section 2(c)(4) of OMA allows a public\nbody to discuss in a closed meeting, \"[ e] vidence or testimony presented in open hearing, or in\nclosed hearing where specifically authorized by law, to a quasi- adjudicative body, as defined in\nthis Act, provided that the body prepares and makes available for public inspection a written\ndecision setting forth its determinative reasoning.\" Section 2(d) of OMA defines quasiadjudicative body as \" an administrative body charged by law or ordinance with the responsibility\nto conduct hearings, receive evidence or testimony and make determinations based thereon, but\ndoes not include local electoral boards when such bodies are considering petition challenges.\" 10\nThe Municipal Code ( Code) of the City of Chicago ( City) charges the Board with,\namong other things, the authority to conduct hearings, receive evidence, and issue opinions on\nwhether certain conduct violated the City's ethics ordinances. 11 The Code also empowers the\nBoard:\nto render advisory opinions with respect to the provisions\nof this chapter based upon a real or hypothetical set of\ncircumstances, when requested by an official or employee, or by a\nperson who is personally and directly involved. Advisory opinions\nshall be made available to the public, but the identity of the person\nrequesting the opinion and of any person whose conduct is\ninvolved in the set of circumstances described in the request for the\nopinion shall be confidential. The board shall indicate, in writing,\n9Although the Board' s answer to this office stated that 2(c)(4) was \" not implicated here[,]\" because\nthis office has concluded that the closed session was not within the scope of 2(c)(1), we will also address whether it\nwas within the scope of the other exception cited at the time of the meeting.\n105 ILCS 120/2(d) (West 2022).\n11Chicago Municipal Code § 2-156-392.\n\n\fMr. Richard Superfine\nAugust 10, 2023\nPage 4\n\nthose advisory opinions that have precedential value, and organize\nsuch opinions in a searchable database that is accessible from the\nboard' s website. This subsection shall not be construed to prohibit\nthe executive director from issuing informal advisory opinions in\naccordance with rules promulgated by the board[.][ 12]\nAt its November 14, 2022, meeting, the Board entered into closed session, in part,\nto discuss a \" query report\" regarding \" Case No. 22033. Q Action on behalf of relatives or\ndomestic partners[.]\" 13 According to the Board' s open session minutes, the query report was \" an\nadvisory opinion issued to an elected official by staff explaining how the official would recuse\nthemselves from * * * action[ s] or decision[ s] involving their relative' s future employer.\" 14 A\nredacted version of the advisory opinion is posted to the Board' s website, pursuant to the City's\nCode. 15\nIn his Request for Review,\ndiscussions of advisory opinions:\n\nargues that section 2(c)(4) does not include\n\nSection 2(c)(4) covers only those cases filed before the\nBoard in its quasi- adjudicative capacity. OMA provides that the\nBoard acts in its quasi- adjudicative capacity only when it\nconducts hearings, receive[ s] evidence or testimony and make[ s]\ndeterminations based thereon. [ 5 ILCS 120/ 2(d) (West 2022).]\"\nHowever, this matter is listed as a 'query report' rather than\na 'complaint', therefore the Board was not conducting a hearing and\nreceiving evidence or testimony. Furthermore, the minutes state\nthat the Board was merely issuing an \" advisory opinion\", rather\nthan making a formal \" determination\" based on evidence or\ntestimony.[ 16]\n12Chicago Municipal Code § 2-156- 380( l).\n13City of Chicago Board of Ethics, Agenda Item IX(C), Query Report ( November 14, 2022).\n14City of Chicago Board of Ethics, Meeting, November 14, 2022, Minutes 12.\n15City of Chicago, Board of Ethics, Case No. 22033. Q / Employment Action on behalf of relatives\nor domestic partners ( November 14, 2022),\nhttps:// www.chicago. gov/content/ dam/city/depts/ ethics/ general/ AO_EmployRelatives/ 22033. Q.pdf.\n16Letter from\nDecember 14, 2022), at 2.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney General\n\n\fMr. Richard Superfine\nAugust 10, 2023\nPage 5\n\nBlack' s Law Dictionary defines an \" adjudication\" as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" 17 This office' s review of the\nNovember 14, 2022, meeting materials, including the closed session recording, confirmed that\nthe Board discussed an advisory opinion rather than an adjudication. The City's Code indicates\nthat the issuance of an advisory opinion is a separate process from an adjudication, which\ninvolves making a finding based on evidence. 18 Black' s Law Dictionary defines \" evidence\" as\nsomething ( including testimony, documents, and tangible objects) that tends to prove or\ndisprove the existence of an alleged fact; anything presented to the senses and offered to prove\nthe existence or nonexistence of a fact[.]\" 19 The November 14, 2022, closed session discussion\ndid not include the consideration of \"[ e] vidence or testimony presented in\" an open or closed\nhearing, as required by section 2(c)(4). Instead, the discussion consisted of the Board's and\nstaff's opinions concerning the hypothetical scenario posed by the request for an advisory\nopinion. 20 Accordingly, the Board' s discussion of the \" query report\" was beyond the scope of\nthe section 2(c)(4) exception. To remedy this violation, this office requests the Board disclose\nthe portions of the minutes and verbatim recording of its November 14, 2022, closed session that\npertained to the \" query report.\"\n\n17Black' s Law Dictionary 52 (11th ed. 2019).\n18Compare Chicago Municipal Code § 2-156-380( a-1) (giving the Board the power and duty to\nissue a finding as to whether evidence shows that there is probable cause to believe that there has been a[ n ethics]\nviolation\") ( emphasis added), with Chicago Municipal Code § 2-156- 380( l) (giving the Board the power and duty\nt]o render advisory opinions * * * based upon a real or hypothetical set of circumstances\") ( emphasis added).\nSee also Chicago Municipal Code § 2-156- 400 (\" Adjudications conducted by and advisory opinions issued by * * *\nthe board * * * shall be confidential\").\n19Black' s Law Dictionary 697 ( 11th ed. 2019).\n20By contrast, this office has previously determined that sworn statements and staff advisory\nreports submitted in support of a complaint constitute \" evidence or testimony\" under section 2(c)(4) of OMA. Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 62578, issued July 23, 2020.\n\n\fMr. Richard Superfine\nAugust 10, 2023\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at victoria. frazier@ilag. gov.\n\nVery truly yours,\n\nVICTORIA FRAZIER\nAssistant Attorney General\nPublic Access Bureau\n74629 o 2c1 improper 2c4 improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board of ethics' closed-session discussion of a query report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74629/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 10, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard Superfine\nLegal Counsel\nCity of Chicago Board of Ethics\n740 North Sedgwick\nChicago, Illinois 60654\nrichard. superfine@cityofchicago. org\nRE: OMA Request for Review – 2022 PAC 74629\nDear\n\nand Mr. Superfine:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). For the reasons that follow, the Public Access Bureau concludes that the City of\nChicago Board of Ethics (Board) violated OMA at its November 14, 2022, meeting.\n1\n\nBACKGROUND\nOn December 14, 2022,\nsubmitted a Request for Review alleging\nthat the Board improperly discussed a \" query report\" in the closed session portion of its\nNovember 14, 2022, meeting. Specifically,\nalleged that the report did not fall within the\nscope of the exceptions in section 2(c)(1) or 2(c)(4) of OMA 2 that the Board cited as its bases for\nentering closed session.\n\n15 ILCS 120/ 3.5(e) (West 2022).\n25 ILCS 120/ 2(c)(1), (c)(4) (West 2022).\n\nOn December 21, 2022, this office sent a copy of the Request for Review to the\nBoard and asked it to provide a written answer and copies of the November 14, 2022, meeting\nagenda, open and closed session minutes, as well as the verbatim recording of the closed session.\nOn January 20, 2023, the Board provided this office with the requested materials. On January\n24, 2023, this office forwarded a copy of the Board's response to\nhe did not reply.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 3 Section 2(a) of OMA 4 provides that all\nmeetings of a public body shall be open to the public unless the subject of discussion falls within\none of the exceptions set out in subsection 2(c) of OMA. 5\nSection 2(c)(1) of OMA\nSection 2(c)(1) of OMA permits a public body to hold a closed session to discuss,\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees\" as well as specified independent contractors or volunteers and legal counsel of the\npublic body. 6\nIn its answer to this office, the Board asserted that section 2(c)(1) of OMA\nauthorized the closed discussion of the \" query report\" on the grounds that \" if the Board may\nconfidentially consider a matter under the [ City's Ethics] Ordinance for a City employee, then it\nmay do the same for a City elected official.\" 7 However, under section 2(b) of OMA, exceptions\nare to be \" strictly construed, extending only to subjects clearly within their scope.\" 8 The plain\nlanguage of section 2(c)(1) of OMA is limited to \" specific employees\" and specified independent\ncontractors or volunteers and legal counsel of a public body; it does not encompass elected\nofficials. In a binding opinion, the Attorney General concluded that section 2(c)(1) does not\n35 ILCS 120/ 1 (West 2022).\n45 ILCS 120/ 2(a) (West 2022).\n55 ILCS 120/ 2(c) (West 2022).\n65 ILCS 120/ 2(c)(1) (West 2022).\n7 Letter from Richard Superfine, Legal Counsel, Board of Ethics, City of Chicago, to Victoria\nFrazier, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, January 17,\n\napply to elected officials. Ill. Att'y Gen. Pub. Acc. Op. No. 17-023, issued November 21, 2017,\nat 4 (\" Because elected members of a Village Board are occupants of a public office, not\nemployees' of public bodies, section 2(c)(1) would not have provided a basis for the Board to\nclose a meeting to discuss the conduct of a Board member.\"). Accordingly, the Board's reliance\non section 2(c)(1) to discuss the \" query report\" during its November 14, 2022, closed session\nwas improper.\nSection 2(c)(4) of OMA\nAs noted above, the Board also cited 2(c)(4) of OMA 9 as a basis for entering\nclosed session during its November 14, 2022, meeting. Section 2(c)(4) of OMA allows a public\nbody to discuss in a closed meeting, \"[ e] vidence or testimony presented in open hearing, or in\nclosed hearing where specifically authorized by law, to a quasi- adjudicative body, as defined in\nthis Act, provided that the body prepares and makes available for public inspection a written\ndecision setting forth its determinative reasoning.\" Section 2(d) of OMA defines quasiadjudicative body as \" an administrative body charged by law or ordinance with the responsibility\nto conduct hearings, receive evidence or testimony and make determinations based thereon, but\ndoes not include local electoral boards when such bodies are considering petition challenges.\" 10\nThe Municipal Code (Code) of the City of Chicago (City) charges the Board with,\namong other things, the authority to conduct hearings, receive evidence, and issue opinions on\nwhether certain conduct violated the City's ethics ordinances. 11 The Code also empowers the\nBoard:\nto render advisory opinions with respect to the provisions\nof this chapter based upon a real or hypothetical set of\ncircumstances, when requested by an official or employee, or by a\nperson who is personally and directly involved. Advisory opinions\nshall be made available to the public, but the identity of the person\nrequesting the opinion and of any person whose conduct is\ninvolved in the set of circumstances described in the request for the\nopinion shall be confidential. The board shall indicate, in writing,\n9 Although the Board's answer to this office stated that 2(c)(4) was \" not implicated here[,]\" because\nthis office has concluded that the closed session was not within the scope of 2(c)(1), we will also address whether it\n\nthose advisory opinions that have precedential value, and organize\nsuch opinions in a searchable database that is accessible from the\nboard's website. This subsection shall not be construed to prohibit\nthe executive director from issuing informal advisory opinions in\naccordance with rules promulgated by the board[.][ 12]\nAt its November 14, 2022, meeting, the Board entered into closed session, in part,\nto discuss a \" query report\" regarding \" Case No. 22033. Q Action on behalf of relatives or\ndomestic partners[.]\" 13 According to the Board's open session minutes, the query report was \" an\nadvisory opinion issued to an elected official by staff explaining how the official would recuse\nthemselves from * * * action[ s] or decision[ s] involving their relative's future employer.\" 14 A\nredacted version of the advisory opinion is posted to the Board's website, pursuant to the City's\nCode. 15\nIn his Request for Review,\ndiscussions of advisory opinions:\n\nargues that section 2(c)(4) does not include\n\nSection 2(c)(4) covers only those cases filed before the\nBoard in its quasi- adjudicative capacity. OMA provides that the\nBoard acts in its quasi- adjudicative capacity only when it\nconducts hearings, receive[ s] evidence or testimony and make[ s]\ndeterminations based thereon. [ 5 ILCS 120/ 2(d) (West 2022).]\"\nHowever, this matter is listed as a 'query report' rather than\na 'complaint', therefore the Board was not conducting a hearing and\nreceiving evidence or testimony. Furthermore, the minutes state\nthat the Board was merely issuing an \" advisory opinion\", rather\nthan making a formal \" determination\" based on evidence or\ntestimony.[ 16]\n12 Chicago Municipal Code § 2-156- 380(l).\n13 City of Chicago Board of Ethics, Agenda Item IX(C), Query Report (November 14, 2022).\n14 City of Chicago Board of Ethics, Meeting, November 14, 2022, Minutes 12.\n15 City of Chicago, Board of Ethics, Case No. 22033. Q / Employment Action on behalf of relatives\nor domestic partners (November 14, 2022),\nhttps:// www.chicago. gov/content/ dam/city/depts/ ethics/ general/ AO_EmployRelatives/ 22033. Q.pdf.\n\nBlack's Law Dictionary defines an \" adjudication\" as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" 17 This office's review of the\nNovember 14, 2022, meeting materials, including the closed session recording, confirmed that\nthe Board discussed an advisory opinion rather than an adjudication. The City's Code indicates\nthat the issuance of an advisory opinion is a separate process from an adjudication, which\ninvolves making a finding based on evidence. 18 Black's Law Dictionary defines \" evidence\" as\nsomething (including testimony, documents, and tangible objects) that tends to prove or\ndisprove the existence of an alleged fact; anything presented to the senses and offered to prove\nthe existence or nonexistence of a fact[.]\" 19 The November 14, 2022, closed session discussion\ndid not include the consideration of \"[ e] vidence or testimony presented in\" an open or closed\nhearing, as required by section 2(c)(4). Instead, the discussion consisted of the Board's and\nstaff's opinions concerning the hypothetical scenario posed by the request for an advisory\nopinion. 20 Accordingly, the Board's discussion of the \" query report\" was beyond the scope of\nthe section 2(c)(4) exception. To remedy this violation, this office requests the Board disclose\nthe portions of the minutes and verbatim recording of its November 14, 2022, closed session that\npertained to the \" query report.\"\n\n17 Black's Law Dictionary 52 (11th ed. 2019).\n18 Compare Chicago Municipal Code § 2-156-380(a-1) (giving the Board the power and duty to\nissue a finding as to whether evidence shows that there is probable cause to believe that there has been a[ n ethics]\nviolation\") (emphasis added), with Chicago Municipal Code § 2-156- 380(l) (giving the Board the power and duty\nt]o render advisory opinions * * * based upon a real or hypothetical set of circumstances\") (emphasis added).\nSee also Chicago Municipal Code § 2-156- 400 (\" Adjudications conducted by and advisory opinions issued by * * *\nthe board * * * shall be confidential\").\n19 Black's Law Dictionary 697 (11th ed. 2019).\n20 By contrast, this office has previously determined that sworn statements and staff advisory\nreports submitted in support of a complaint constitute \" evidence or testimony\" under section 2(c)(4) of OMA. Ill.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at victoria. frazier@ilag. gov.\n\nVery truly yours,\n\nVICTORIA FRAZIER\nAssistant Attorney General\nPublic Access Bureau\n74629 o 2c1 improper 2c4 improper mun"}
{"id":1406,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-03-23","case_number":null,"request_numbers":["74672","74673"],"title":"Bond County School Board violated OMA by failing to post October 19 meeting agenda 48 hours in advance","filename":"74672 74673, issued March 23, 2023.pdf","rel_path":null,"word_count":2756,"summary":"The requester alleged that the Bond County CUSD #2 Board of Education failed to provide sufficient advance notice of an October 2022 regular meeting and two November 2022 committee meetings. The PAC determined the Board violated OMA regarding the October meeting agenda but did not violate OMA regarding the committee meetings.","plain_summary":"A citizen complained that a school board failed to post meeting agendas at least 48 hours before their meetings as required by the Open Meetings Act. The Attorney General's office found that the board violated the advance notice requirements for its October 19, 2022, regular meeting by not posting the agenda online. However, the board did not violate those requirements for its November 9, 2022, committee meetings because it physically posted the agendas at its principal office on time. The board was reminded to promptly post meeting agendas online in the future.","holding":"The Board violated OMA by failing to post the October 19, 2022, regular meeting agenda on its website at least 48 hours in advance, but did not violate the advance notice requirements for the November 9, 2022, committee meetings.","legal_question":"Whether the Board of Education violated section 2.02 of the Open Meetings Act by failing to post meeting agendas on its website at least 48 hours in advance of its meetings.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Bond County Community Unit School District #2 Board of Education","requesting_party":"Mr. Donald A. Wall","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The posting of meeting agendas on the school district website for a regular board meeting and two committee meetings.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/74672 74673, issued March 23, 2023.pdf","sha256":"5be47fecb94d8d7abd277d0e26b7c85a1c5e216e621d1f1e739017dadf3a3d4c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","agenda","school board","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL\n\nMarch 23, 2023\n\nVia electronic\n\nmail\n\nMr. Donald A. Wall\ndawa1175@gmail. com\nVia electronic\n\nmail\n\nThe Honorable Randi Workman\nPresident, Board of Education\nBond\n\nCounty CUSD #\n1004 Savannah Way\n\n2\n\n[street address redacted for site publication -- see original PDF]\nrandi. workman@bccu2. org\nRE:\n\nOMA Request for Review — 2022 PAC 74672; 2022 PAC 74673\n\nDear Mr. Wall and Mr. Workman:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2020)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Education ( Board) of the Bond County Community Unit School\nDistrict # 2 ( School District) violated the advance notice requirements\n\nof OMA in connection\n\nwith its October 19, 2022, regular meeting, but did not violate those requirements with respect to\nits November 9, 2022, committee meetings.\nBACKGROUND\n\nOn December 19, 2022, Mr. Donald Wall submitted two Requests for Review to\n\nthe Public Access Bureau alleging that the Board violated section 2. 02 of OMA ( 5 ILCS\n120/ 2. 02 ( West 2020)) by failing to provide sufficient advance notice of two meetings. In 2022\n\nPAC 74672, Mr. Wall alleged that the Board did not post a copy of its October 19, 2022, regular\nmeeting agenda on the School District website at least 48 hours in advance of holding the\nmeeting. In 2022 PAC 74673, he alleged that the Board did not post copies of the agendas for its\nNovember\n\n9, 2022, Finance\n\nand Facilities & Transportation\n\nCommittee\n\nmeetings,\n\neither online\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\n100 West Randolph\n\nIllinois\n\nFax: ( 312) 814- 3806\n\n601 South\n\nUniversity\n\nStreet, Chicago,\nAve., Carbondale,\n\n60601 • (\n\n312) 814- 3000 •\n\nIllinois 62901 • (\n\nTTY: ( 800) 964- 3013 •\n\n618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\f\fr.\nDonald A. Wall\nThe Honorable Randi Workman\nMarch 23, 2023\nPage 3\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nin any way.\"\n\n5 ILCS\n\n120/ 1 ( West 2020). \"\n\nThe Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nupon\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\n\nopenly.\"\n\nSection\n\n2. 02( a) of OMA ( 5 ILCS\n\n120/ 2. 02( a) ( West 2020))\n\nprovides\n\nthat \"[ a] n\n\nagenda for each regular meeting shall be posted at the principal office of the public body and at\nthe location where the meeting is to be held at least 48 hours in advance of the holding of the\nadded.)\n\nEmphasis\n\nThat provision\n\nfurther provides\n\na] public body that has a\nwebsite that the full- time staff of the public body maintains shall also post on its website the\nagenda of\nany regular meetings of the governing body of that public body.\" ( Emphasis added.)\nmeeting.\" (\n\nSection\nthat \"[\n\n2. 02( b) of OMA ( 5 ILCS\n\nthat \"[\n\n140/ 2. 02( b) ( West 2020))\n\nsimilarly\n\nprovides\n\np] ublic notice shall be given by posting a copy of the notice at the principal office of the body\n\nholding the meeting or, if no such office exists, at the building in which the meeting is to be held[,]\"\nand that \" a public body that has a website that the full-time staff of the public body maintains shall post\nnotice on its website of all meetings of the governing body of the public body.\"\nOctober 19, 2022, Meeting\nIn response to 2022 PAC 74672, the Board contended that it does not have full-\n\ntime staff who maintain the School District website. The Board explained that the School\n\nDistrict launched a new website and app on July 1, 2022, after entering into a contract with\nApptegy, a software provider. The Board argued that \" although designated District parties post\nor otherwise\n\nupdate\n\ncontent\n\nfor the District' s new website,\n\nApptegy —and not the full-time staff\n\nof the District — maintains\n\nthe new website. i2 In particular, the Board acknowledged that the\nSchool District can update the website, app, and notification system through Apptegy' s\nThrillshare\" platform, but it argued that the contract provides that \" Thrillshare not only\nmanages [ the District' s] website, but also [ the District's] custom app, all of [the District's]\nsocial\n\nmedia\n\nchannels,\n\nand [ the District' s]\n\nalerts\n\nand\n\nnotification\n\nsystem[.]\n\ni3\n\nAdditionally, the\n\n2Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau ( January 5, 2023), at 3.\nLetter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral,\n\nPublic Access Bureau ( January 5, 2023),\n\nat 3.\n\n\fr.Donald A. Wall\nThe Honorable Randi Workman\nMarch 23, 2023\n\nPage 4\n\nBoard contended that no full- time staff members work exclusively to maintain the website.\n\nInstead, those staff members \" update the District website when necessary or desired\" as part of\ntheir job duties. 4 In its supplemental response, the Board stated it investigated the matter further\nand could not confirm that the October 19, 2022, meeting agenda was posted online prior to the\nmeeting.\n\nIn reply to that answer, Mr. Wall disputed the Board' s claim that it does not have\nany full- time staff members\n\nwho\n\nmaintain\n\nthe School\n\nDistrict\n\nwebsite.\n\nHe argued: \"[\n\nOMA] does\n\nnot say the website has to be the employee' s full time responsibility, or only responsibility. Nor\ndoes it give any exemptions from posting meeting agendas on the website because a third party\n\nmay be hosting the website. i5\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\"\nGaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N. E. 2d 359, 372 ( 2012). As noted above, section 2. 02( a) of OMA provides\nthat that \"[ a] public body that has a website that the full- time staff of the public body\nmaintains shall also post on its website the agenda of any regular meetings of the governing\nbody of that public body.\" ( Emphasis added.) The definitions of \"maintain\" in Black' s Law\nDictionary include \"[ t] o continue ( something)\" and \"[ t] o continue in possession of (property,\nBlack' s Law Dictionary ( l lth ed. 2019), available at Westlaw BLACKS. \" Maintain\" also\netc.).\"\nhas been defined as to \" bear the expense of; carry on; commence; continue; furnish means for\nof.\" Black' s Law Dictionary 859 ( 5th ed. 1979).\nsubsistence\nor existence\nHaving reviewed the School District's response and submitted materials, the\navailable information indicates that Apptegy re -designed the website, but the School District\n\ndirectly controls the contents of the new site. According to Apptegy's proposal of deliverables,\nThrillshare is a \" publishing platform for schools, so your team manages all of your\nfrom\n\ni6 (\n\nEmphasis added.)\n\nThe platform allows schools\nto assign roles and privileges to your team to update what they care most about. With this level\nof customization and control, [ schools] can be confident about consistent messaging being\ncommunication\n\nchannels\n\na single\n\nplace.\n\n4Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau ( January 5, 2023), at 3.\n\n5Letter from Donald A. Wall to Teresa Lim, Assistant Attorney General, Public Access Bureau\nundated).\n\n6Apptegy, Powering Your School' s Identity, Scope &\n\nDeliverables.\n\n\fr.\nDonald A. Wall\nThe Honorable Randi Workman\nMarch 23, 2023\nPage 5\n\nshared with [ their] community.\"' (\n\nEmphasis\n\nadded.)\n\nwhich a school can manage its own communications\ncentralized\n\nThus, Thrillshare is a marketing tool in\non various mediums,\n\nall from one\n\nlocation.\n\nAlthough Apptegy manages its product, Thrillshare, the customer is responsible\nfor the continued operation of the website and controls its contents. The School District\n\nacknowledged that it can post and update information on the website using the publishing\nplatform. The School District bears the upkeep of the website and provides for its continuance\nby updating the contents to keep students, parents, and other community members informed.\nThis is readily distinguishable from circumstances in which this office has determined that a\n\nthird party contractor rather than a public body \" maintains\" a website by operating it and\ncontrolling its content. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 70560, issued January 10, 2023\nhousing authority not required to post agendas on its website because it demonstrated that a\nthird - party\n\nfor the authority on the\n\nAccordingly,\nthis office concludes that the School District \" maintains\" its website for purposes of section\nwebsite\n\nadministrator\n\nposts\n\nmaterials\n\nwebsite).\n\n2. 02( a) of OMA.\n\nThe Board also contended that it has no -full time staff members who are\n\ndedicated to maintaining the website. Yet, section 2. 02 of OMA does not provide that the fulltime staff member' s duties must solely involve maintenance of the website. Section 2. 02( a)\nsimply provides that \"[\nmaintains\n\nshall\n\nalso\n\na] public body that has a website that the full-time staff of the public body\n\npost on its website\n\nthe agenda\n\nof any regular meeting[.]\"\n\nFurther, the Board\n\ndid not deny that it has any full-time staff members who update the website as part of their\nduties. The Board merely contended that \" it might be argued that the District used its full- time\n\nstaff to maintain the District' s website before Apptegy was engaged, but there have never been a\nfull-time District employee whose sole and exclusive duty was to maintain the District' s\ni8\nwebsite.\nAccordingly, this office concludes that the Board is subject to the online posting\nrequirements of section 2. 02.\n\nAs noted above, the Board could not confirm that it posted a copy of its October\n19, 2022, meeting agenda on its website prior to the meeting. However, it stated that the\nomission was inadvertent, and that its normal practice is to post copies of its meeting agendas\nonline prior to the holding of those meetings. It further stated that it will continue its practice of\nposting its agendas online. Accordingly, no further remedial action is necessary, though this\noffice reminds the Board that it must promptly post its meeting agendas online at least 48 hours\nin advance of holding those meetings.\n7Apptegy, Powering Your School' s Identity, Scope &\n\nDeliverables.\n\n8Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access\n\nBureau ( January 5, 2023),\n\nat 3.\n\n\fr.\nDonald A. Wall\nThe Honorable\n\nRandi\n\nWorkman\n\nMarch 23, 2023\nPage 6\n\nNovember\n\n9, 2022, Committee\n\nMeetings\n\nIn response to 2022 PAC 74673, the Board denied that it failed to post physical\ncopies\n\nof the November\n\nCommittee\n\nmeetings\n\n9, 2022, meeting\n\nat least 48\n\nagendas\n\nfor its Finance and Facilities &\n\nhours in advance of the meetings.\n\nIt asserted: \"\n\nTransportation\n\nThe agendas for\n\ncommittee meetings were physically posted at the District' s principal office ( its Unit, or District,\nOffice) visible to the public commencing on Monday, November 7, 2022, at 3: 45 p. m., and that\n\nposting continued until Thursday, November 10, 2022. i9 It also stated that it sent copies of the\nagendas to media outlets and certain other parties on November 7, 2022, at 3: 49 p. m.\nMr. Wall maintained that the Board failed to post physical copies of the\ncommittee meeting agendas. He referred this office to the photos he took of the three entrance\ndoors to the high school library, the location of the meetings.\nOn February 17, 2023, and February 22, 2023, this office requested additional\ninformation from the Board regarding where it physically posted the agendas and how often the\ncommittees met. In response, the Board clarified that copies of the agendas were posted on the\n\nfront door of its principal office located at 1004 Savannah Way, which is approximately a quarter\nmile from the high school. The Board asserted that its committees meet on an as -needed basis.\n\nAccording to the Board, the Policy and Curriculum Committee generally only meets a few times\neach year,\n\nwhile\n\nthe Finance\n\nand Facilities &\n\nTransportation\n\nCommittees\n\nmeet more often\n\nbecause they address issues that frequently arise. The Board explained that the latter committees\noften meet once a month, set a week prior to a meeting of the full Board when the meeting' s\n\nagenda includes an issue that the committees have been discussing. The committees will not\nmeet, however, when there is nothing significant to review.\nBased on the information submitted by the parties, the Board provided public\n\nnotice of its November 9, 2022, committee meetings by posting physical copies of the meeting\nagendas at its principal office at least 48 hours in advance of the meetings, as required by section\n2. 02( b).\n\nAlthough the Board did not also post copies of the agendas at the meeting location,\nsection 2. 02( a) requires only that an agenda for each regular meeting of the public body be\nposted at the public body' s principal office and location of the meeting. \" Regular meeting\" is\ndefined as \"[ a] periodic meeting held at a time set in an organization' s governing documents or\nunder a\n\nstanding\n\nrule or schedule\n\nthat the\n\ndeliberative assembly has adopted.\"\n\nBlack' s Law\n\nDictionary ( l lth ed. 2019), available at Westlaw BLACKS. The available information indicates\nand Facilities & Transportation Committees do not meet according to a periodic\n\nthat the Finance\n\n9Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral,\n\nPublic Access Bureau ( January 5, 2023),\n\nat 2.\n\n\fr.Donald A. Wall\nThe Honorable Randi Workman\nMarch 23, 2023\nPage 7\n\nschedule or on dates set in advance at routine intervals. The Board' s policy manual does not set a\n\nschedule of meetings for the two committees. 10 The two committees generally only meet when\nan\n\nissue of importance\n\narises.\n\nBecause the Finance\n\nand Facilities &\n\nTransportation\n\nCommittees\n\ndid not hold \" regular meetings\" on November 9, 2022, this office concludes that the Board\n\nsatisfied the physical posting requirement of section 2. 02 of OMA.\nWith respect to the posting of committee agendas online, the Public Access\n\nBureau has previously determined that the plain language of section 2. 02( b) of OMA only\nrequires notice of meetings of the governing body to be posted on a public body's website. See,\nfor example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35899 36095, issued August 18, 2017, at 2\nfinance committee not required to post its meeting agendas online because it was not school\ndistrict' s governing\n\nbody); I11. Att' y Gen. PAC Req. Rev. Ltr. 39074, issued April 12, 2018 ( park\n\ndistrict committee not required by OMA to post its meeting agendas on the park district website\nbecause it was not the governing\n\nbody; the board of trustees was the governing body). The\ngoverning body of the School District is the Board rather than the Finance and Facilities &\n\nTransportation Committees. Accordingly, OMA did not require the two committees to post\ncopies of the November 9, 2022, committee meeting agendas on the School District website.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA\n\nLIM\n\nSupervising Attorney\nPublic Access\n\nBureau\n\n74672 74673 o consol 202 proper improper sd\ncc:\n\nVia electronic\n\nmail\n\nMr. Eugene J. Hanses, Jr.\n\nAttorney for Bond County Community Unit School District # 2\nGuin Mundorf, LLC\n\n310 Regency Centre\nCollinsville, Illinois 62234\nehanses@gmschoollaw.\n\ncom\n\n10Bond Community Unit School District #2, Board Manual, 2: 150 Committees, available at\nhttps://\n\nwww.\n\nbccu2. org/ page/ board- manual/.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Posting of meeting agendas on a school district website","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74672/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL\n\nMarch 23, 2023\n\nVia electronic\n\nmail\n\nMr. Donald A. Wall\ndawa1175@gmail. com\nVia electronic\n\nmail\n\nThe Honorable Randi Workman\nPresident, Board of Education\nBond\n\nCounty CUSD #\n1004 Savannah Way\n\n2\n\n[street address redacted for site publication -- see original PDF]\nrandi. workman@bccu2. org\nRE:\n\nOMA Request for Review — 2022 PAC 74672; 2022 PAC 74673\n\nDear Mr. Wall and Mr. Workman:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2020)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Board of Education (Board) of the Bond County Community Unit School\nDistrict # 2 (School District) violated the advance notice requirements\n\nof OMA in connection\n\nwith its October 19, 2022, regular meeting, but did not violate those requirements with respect to\nits November 9, 2022, committee meetings.\nBACKGROUND\n\nOn December 19, 2022, Mr. Donald Wall submitted two Requests for Review to\n\nthe Public Access Bureau alleging that the Board violated section 2. 02 of OMA (5 ILCS\n120/ 2. 02 (West 2020)) by failing to provide sufficient advance notice of two meetings. In 2022\n\nPAC 74672, Mr. Wall alleged that the Board did not post a copy of its October 19, 2022, regular\nmeeting agenda on the School District website at least 48 hours in advance of holding the\nmeeting. In 2022 PAC 74673, he alleged that the Board did not post copies of the agendas for its\nNovember\n\n9, 2022, Finance\n\nand Facilities & Transportation\n\nCommittee\n\nmeetings,\n\neither online\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted\n\nin any way.\"\n\n5 ILCS\n\n120/ 1 (West 2020). \"\n\nThe Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nupon\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\n\nopenly.\"\n\nSection\n\n2. 02(a) of OMA (5 ILCS\n\n120/ 2. 02(a) (West 2020))\n\nprovides\n\nthat \"[ a] n\n\nagenda for each regular meeting shall be posted at the principal office of the public body and at\nthe location where the meeting is to be held at least 48 hours in advance of the holding of the\nadded.)\n\nEmphasis\n\nThat provision\n\nfurther provides\n\na] public body that has a\nwebsite that the full- time staff of the public body maintains shall also post on its website the\nagenda of\nany regular meetings of the governing body of that public body.\" (Emphasis added.)\nmeeting.\" (Section\nthat \"[\n\n2. 02(b) of OMA (5 ILCS\n\nthat \"[\n\n140/ 2. 02(b) (West 2020))\n\nsimilarly\n\nprovides\n\np] ublic notice shall be given by posting a copy of the notice at the principal office of the body\n\nholding the meeting or, if no such office exists, at the building in which the meeting is to be held[,]\"\nand that \" a public body that has a website that the full-time staff of the public body maintains shall post\nnotice on its website of all meetings of the governing body of the public body.\"\nOctober 19, 2022, Meeting\nIn response to 2022 PAC 74672, the Board contended that it does not have full-\n\ntime staff who maintain the School District website. The Board explained that the School\n\nDistrict launched a new website and app on July 1, 2022, after entering into a contract with\nApptegy, a software provider. The Board argued that \" although designated District parties post\nor otherwise\n\nupdate\n\ncontent\n\nfor the District's new website,\n\nApptegy —and not the full-time staff\n\nof the District — maintains\n\nthe new website. i2 In particular, the Board acknowledged that the\nSchool District can update the website, app, and notification system through Apptegy's\nThrillshare\" platform, but it argued that the contract provides that \" Thrillshare not only\nmanages [ the District's] website, but also [ the District's] custom app, all of [the District's]\nsocial\n\nmedia\n\nchannels,\n\nand [ the District's]\n\nalerts\n\nand\n\nnotification\n\nsystem[.]\n\ni3\n\nAdditionally, the\n\n2 Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau (January 5, 2023), at 3.\n\nBoard contended that no full- time staff members work exclusively to maintain the website.\n\nInstead, those staff members \" update the District website when necessary or desired\" as part of\ntheir job duties. 4 In its supplemental response, the Board stated it investigated the matter further\nand could not confirm that the October 19, 2022, meeting agenda was posted online prior to the\nmeeting.\n\nIn reply to that answer, Mr. Wall disputed the Board's claim that it does not have\nany full- time staff members\n\nwho\n\nmaintain\n\nthe School\n\nDistrict\n\nwebsite.\n\nHe argued: \"[\n\nOMA] does\n\nnot say the website has to be the employee's full time responsibility, or only responsibility. Nor\ndoes it give any exemptions from posting meeting agendas on the website because a third party\n\nmay be hosting the website. i5\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\"\nGaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N. E. 2d 359, 372 (2012). As noted above, section 2. 02(a) of OMA provides\nthat that \"[ a] public body that has a website that the full- time staff of the public body\nmaintains shall also post on its website the agenda of any regular meetings of the governing\nbody of that public body.\" (Emphasis added.) The definitions of \"maintain\" in Black's Law\nDictionary include \"[ t] o continue (something)\" and \"[ t] o continue in possession of (property,\nBlack's Law Dictionary (l lth ed. 2019), available at Westlaw BLACKS. \" Maintain\" also\netc.).\"\nhas been defined as to \" bear the expense of; carry on; commence; continue; furnish means for\nof.\" Black's Law Dictionary 859 (5th ed. 1979).\nsubsistence\nor existence\nHaving reviewed the School District's response and submitted materials, the\navailable information indicates that Apptegy re -designed the website, but the School District\n\ndirectly controls the contents of the new site. According to Apptegy's proposal of deliverables,\nThrillshare is a \" publishing platform for schools, so your team manages all of your\nfrom\n\ni6 (Emphasis added.)\n\nThe platform allows schools\nto assign roles and privileges to your team to update what they care most about. With this level\nof customization and control, [ schools] can be confident about consistent messaging being\ncommunication\n\nchannels\n\na single\n\nplace.\n\n4 Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau (January 5, 2023), at 3.\n\n5 Letter from Donald A. Wall to Teresa Lim, Assistant Attorney General, Public Access Bureau\n\nshared with [ their] community.\"' (Emphasis\n\nadded.)\n\nwhich a school can manage its own communications\ncentralized\n\nThus, Thrillshare is a marketing tool in\non various mediums,\n\nall from one\n\nlocation.\n\nAlthough Apptegy manages its product, Thrillshare, the customer is responsible\nfor the continued operation of the website and controls its contents. The School District\n\nacknowledged that it can post and update information on the website using the publishing\nplatform. The School District bears the upkeep of the website and provides for its continuance\nby updating the contents to keep students, parents, and other community members informed.\nThis is readily distinguishable from circumstances in which this office has determined that a\n\nthird party contractor rather than a public body \" maintains\" a website by operating it and\ncontrolling its content. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 70560, issued January 10, 2023\nhousing authority not required to post agendas on its website because it demonstrated that a\nthird - party\n\nfor the authority on the\n\nAccordingly,\nthis office concludes that the School District \" maintains\" its website for purposes of section\nwebsite\n\nadministrator\n\nposts\n\nmaterials\n\nwebsite).\n\n2. 02(a) of OMA.\n\nThe Board also contended that it has no -full time staff members who are\n\ndedicated to maintaining the website. Yet, section 2. 02 of OMA does not provide that the fulltime staff member's duties must solely involve maintenance of the website. Section 2. 02(a)\nsimply provides that \"[\nmaintains\n\nshall\n\nalso\n\na] public body that has a website that the full-time staff of the public body\n\npost on its website\n\nthe agenda\n\nof any regular meeting[.]\"\n\nFurther, the Board\n\ndid not deny that it has any full-time staff members who update the website as part of their\nduties. The Board merely contended that \" it might be argued that the District used its full- time\n\nstaff to maintain the District's website before Apptegy was engaged, but there have never been a\nfull-time District employee whose sole and exclusive duty was to maintain the District's\ni8\nwebsite.\nAccordingly, this office concludes that the Board is subject to the online posting\nrequirements of section 2. 02.\n\nAs noted above, the Board could not confirm that it posted a copy of its October\n19, 2022, meeting agenda on its website prior to the meeting. However, it stated that the\nomission was inadvertent, and that its normal practice is to post copies of its meeting agendas\nonline prior to the holding of those meetings. It further stated that it will continue its practice of\nposting its agendas online. Accordingly, no further remedial action is necessary, though this\noffice reminds the Board that it must promptly post its meeting agendas online at least 48 hours\nin advance of holding those meetings.\n7 Apptegy, Powering Your School's Identity, Scope &\n\nDeliverables.\n\n8 Letter from Eugene J. Hanses, Jr., Guin Mundorf, LLC, to Teresa Lim, Assistant Attorney\nGeneral, Public Access\n\nBureau (January 5, 2023),\n\nNovember\n\n9, 2022, Committee\n\nMeetings\n\nIn response to 2022 PAC 74673, the Board denied that it failed to post physical\ncopies\n\nof the November\n\nCommittee\n\nmeetings\n\n9, 2022, meeting\n\nat least 48\n\nagendas\n\nfor its Finance and Facilities &\n\nhours in advance of the meetings.\n\nIt asserted: \"\n\nTransportation\n\nThe agendas for\n\ncommittee meetings were physically posted at the District's principal office (its Unit, or District,\nOffice) visible to the public commencing on Monday, November 7, 2022, at 3: 45 p. m., and that\n\nposting continued until Thursday, November 10, 2022. i9 It also stated that it sent copies of the\nagendas to media outlets and certain other parties on November 7, 2022, at 3: 49 p. m.\nMr. Wall maintained that the Board failed to post physical copies of the\ncommittee meeting agendas. He referred this office to the photos he took of the three entrance\ndoors to the high school library, the location of the meetings.\nOn February 17, 2023, and February 22, 2023, this office requested additional\ninformation from the Board regarding where it physically posted the agendas and how often the\ncommittees met. In response, the Board clarified that copies of the agendas were posted on the\n\nfront door of its principal office located at 1004 Savannah Way, which is approximately a quarter\nmile from the high school. The Board asserted that its committees meet on an as -needed basis.\n\nAccording to the Board, the Policy and Curriculum Committee generally only meets a few times\neach year,\n\nwhile\n\nthe Finance\n\nand Facilities &\n\nTransportation\n\nCommittees\n\nmeet more often\n\nbecause they address issues that frequently arise. The Board explained that the latter committees\noften meet once a month, set a week prior to a meeting of the full Board when the meeting's\n\nagenda includes an issue that the committees have been discussing. The committees will not\nmeet, however, when there is nothing significant to review.\nBased on the information submitted by the parties, the Board provided public\n\nnotice of its November 9, 2022, committee meetings by posting physical copies of the meeting\nagendas at its principal office at least 48 hours in advance of the meetings, as required by section\n2. 02(b).\n\nAlthough the Board did not also post copies of the agendas at the meeting location,\nsection 2. 02(a) requires only that an agenda for each regular meeting of the public body be\nposted at the public body's principal office and location of the meeting. \" Regular meeting\" is\ndefined as \"[ a] periodic meeting held at a time set in an organization's governing documents or\nunder a\n\nstanding\n\nrule or schedule\n\nthat the\n\ndeliberative assembly has adopted.\"\n\nBlack's Law\n\nDictionary (l lth ed. 2019), available at Westlaw BLACKS. The available information indicates\nand Facilities & Transportation Committees do not meet according to a periodic\n\nthat the Finance\n\nschedule or on dates set in advance at routine intervals. The Board's policy manual does not set a\n\nschedule of meetings for the two committees. 10 The two committees generally only meet when\nan\n\nissue of importance\n\narises.\n\nBecause the Finance\n\nand Facilities &\n\nTransportation\n\nCommittees\n\ndid not hold \" regular meetings\" on November 9, 2022, this office concludes that the Board\n\nsatisfied the physical posting requirement of section 2. 02 of OMA.\nWith respect to the posting of committee agendas online, the Public Access\n\nBureau has previously determined that the plain language of section 2. 02(b) of OMA only\nrequires notice of meetings of the governing body to be posted on a public body's website. See,\nfor example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35899 36095, issued August 18, 2017, at 2\nfinance committee not required to post its meeting agendas online because it was not school\ndistrict's governing\n\nbody); I11. Att' y Gen. PAC Req. Rev. Ltr. 39074, issued April 12, 2018 (park\n\ndistrict committee not required by OMA to post its meeting agendas on the park district website\nbecause it was not the governing\n\nbody; the board of trustees was the governing body). The\ngoverning body of the School District is the Board rather than the Finance and Facilities &\n\nTransportation Committees. Accordingly, OMA did not require the two committees to post\ncopies of the November 9, 2022, committee meeting agendas on the School District website.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA\n\nLIM\n\nSupervising Attorney\nPublic Access\n\nBureau\n\n74672 74673 o consol 202 proper improper sd\ncc:\n\nVia electronic\n\nmail\n\nMr. Eugene J. Hanses, Jr.\n\nAttorney for Bond County Community Unit School District # 2\nGuin Mundorf, LLC\n\n310 Regency Centre\nCollinsville, Illinois 62234\nehanses@gmschoollaw.\n\ncom\n\n10 Bond Community Unit School District #2, Board Manual, 2: 150 Committees, available at\nhttps://\n\nwww.\n\nbccu2. org/ page/ board- manual/."}
{"id":1407,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-05-11","case_number":null,"request_numbers":["74763","74885","74985"],"title":"Barrington School Board unable to confirm compliance with OMA remote meeting rules","filename":"74763 74885 74985, issued May 11, 2023.pdf","rel_path":null,"word_count":2459,"summary":"The PAC reviewed three complaints regarding a school board member's remote attendance at a meeting, ultimately finding it could not conclude the Board complied with OMA requirements for remote participation.","plain_summary":"A school board allowed a member to attend a meeting remotely by phone, but the Public Access Bureau (PAC) found it was unable to conclude that the board complied with the Open Meetings Act (OMA) because the board did not clearly verify the member's eligibility or demonstrate that a majority consented to the remote attendance. The PAC did not issue a final determination on whether a violation occurred, only that it could not confirm compliance based on the available information.","holding":"The PAC was unable to conclude that the Board complied with OMA when it allowed a member to attend a meeting via telephone without first demonstrating majority consent.","legal_question":"Did the Board violate section 7 of the Open Meetings Act by allowing a member to attend a meeting remotely without satisfying the statutory requirements for remote attendance?","disposition":"insufficient_info","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Barrington Community Unit School District No. 220 Board of Education","requesting_party":"Mr. Brian P. Crowley","pac_outcome":"Insufficient information to conclude compliance","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The propriety of a school board member attending a public meeting remotely via telephone.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/7_a_b_c/74763 74885 74985, issued May 11, 2023.pdf","sha256":"19f659bdca39cfad29eaab2c5dbdb71c34613b53d235a3df6b29538a72ada59b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","school board","Open Meetings Act","remote attendance"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 11, 2023\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nVia electronic mail\n\nThe Honorable Sandra Ficke- Bradford\nPresident\n\nBarrington Community Unit School District No. 220\nBoard of Education\n\n[street address redacted for site publication -- see original PDF]\nsbradford@barrington220.\nRE:\n\norg\n\nOMA Requests for Review — 2022 PAC 74763\n2023 PAC 74885\n2023 PAC 74985\n\nand Ms. Ficke- Bradford:\n\nDear ,\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2020)).\n\nThis office has consolidated three matters concerning\n\nthe same alleged violation. For the reasons explained below, the Public Access Bureau is unable\n\nto conclude that the Barrington Community Unit School District No. 220 ( District) Board of\nEducation ( Board) complied with the requirements of OMA by allowing a member to attend its\n\n500\n\nSouth Second Street, Springfield,\n\n100 West Randolph\n\nStreet, Chicago,\n\nSouth University\n\nAve., Carbondale,\n\n601\n\nIllinois 62701 • (\nIllinois\n\n60601 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois 62901 • (\n\n618)\n\n529- 6400 •\n\nTTY: ( 877) 675- 9339 •\n\nFax: ( 618)\n\n529- 6416\n\n\fThe Honorable\n\nSandra Ficke- Bradford\n\nMay 11, 2023\nPage 2\n\nDecember 20, 2022, meeting via telephone without first demonstrating majority consent of the\nBoard.\nBACKGROUND\n\nOn December\n\n21, 2022,\n\nsubmitted a Request for Review\n\n2022 PAC 74763) alleging that the Board violated section 7 of OMA ( 5 ILCS 120/ 7 ( West\nby allowing Board member Leah Collister Lazzari to attend its December 20, 2022,\nmeeting via telephone without satisfying any of the three exceptions for remote attendance as\n2020))\n\noutlined\n\nunder\n\nsection\n\n7( a) of OMA ( 5 ILCS 120/ 7( a) ( West 2020)).\n\nJanuary 9, 2023,\n\nand\n\nOn January 3, 2023, and\n\nsubmitted Requests for Review\n\n2023 PAC 74885 and 2023 PAC 74985, respectively) alleging the same violation.\nalso alleged that the Board failed to vote to allow Ms. Collister Lazzari to attend the meeting\nremotely.\n\nThis office sent copies of the Requests for Review to the Board and asked it to\n\nfurnish this office with copies of its December 20, 2022, meeting notice, agenda, and minutes,\n\ntogether with any rules adopted by the Board pursuant to section 7( c) of OMA ( 5 ILCS 120/ 7( c)\nWest 2020)).\n\nThe Public Access Bureau also asked the Board to provide a written response to\n\nthe allegations in the Requests for Review.\n\nOn January 18, 2023, the Board' s legal counsel provided the requested materials\nin connection with Request for Review 2022 PAC 74763 and later provided the same written\n\nresponse for the remaining two Requests for Review. This office forwarded copies of the\nand\n\nBoard' s response to\n\nindividually submitted replies.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand that their deliberations be conducted openly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 ( 5th Dist. 1989).\n\nIn order for a member of a public body to attend a public meeting by means other\nthan physical presence, the procedural requirements set forth below must first be met. Sections\n7( a), 7( b), and 7( c) of OMA ( 5 ILCS 120/ 7( a), ( b), ( c) ( West 2020)) provide, in relevant part:\n\n\fThe Honorable Sandra Ficke- Bradford\n\nMay 11, 2023\nPage 3\n\na) If a quorum of the members of the public body is\nphysically present as required by Section 2. 01, a majority\n\nof the public body may allow a member of that body to\nattend the meeting by other means if the member is\n\nprevented from physically attending because of: (i)\npersonal illness or disability; ( ii) employment purposes or\nthe business of the public body; or (iii) a family or other\nemergency. \" Other means\" is by video or audio conference.\nb) If a member wishes to attend a meeting by other means, the\n\nmember must notify the recording secretary or clerk of the\npublic body before the meeting unless advance notice is\nimpractical.\n\nc)\n\nA majority of the public body may allow a member to\n\nattend a meeting by other means only in accordance with\nand to the extent allowed by rules adopted by the public\n\nbody. The rules must conform to the requirements and\nrestrictions of this Section, may further limit the extent to\n\nwhich attendance by other means is allowed, and may\nprovide for the giving of additional notice to the public or\nfurther facilitate public access to meetings.\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\nthe discretion to permit a member to participate in the meeting by other means for any of the\nthree purposes set forth in section 7( a) of OMA, and the public body's decision to permit a\nmember's remote attendance will not be disturbed unless it is clearly unreasonable or contrary to\n\nthe public body's remote attendance rules. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 33937, issued\nJune 8, 2015, at 3.\n\nremote\n\nThe Board provided this office with a copy of its adopted rules allowing for\nas required by section\n7( c), which paraphrase sections 7( a) and 7( b) of OMA:\n\nattendance\n\nProvided a quorum is physically present, a Board member\nmay attend a meeting by video or audio conference if he or she is\nprevented from physically\n\nattending\n\nbecause of: (1)\n\npersonal\n\nillness or disability, ( 2) employment or District business, or ( 3) a\n\nfamily or other emergency.\n\nIf a member\n\nwishes\n\nto attend\n\na\n\nmeeting\n\n\fThe Honorable Sandra Ficke- Bradford\n\nMay 11, 2023\nPage 4\n\nby video or audio means, he or she must notify the recording\nsecretary or Superintendent at least 24 hours before the meeting\nunless advance notice is impractical. The recording secretary or\nSuperintendent\n\nwill inform the Board President and make\n\nappropriate arrangements. A Board member who attends a meeting\n\nby audio or video means, as provided in this policy, may\nparticipate in all aspects of the Board meeting including voting on\n\nany item. 111\nPursuant to section 7( b) of OMA and the Board' s adopted rules, a Board member\n\nwho wishes to attend a meeting by audio or video conference is required to notify the recording\nsecretary or Superintendent at least 24 hours before the meeting, unless impractical. The Board' s\nlegal counsel provided a copy of an e- mail that Ms. Collister Lazzari sent the Superintendent and\nhis executive assistant, who serves as the Board' s recording secretary, on November 29, 2022,\nstating that she would participate in the December 6, 2022, meeting, and probably the December\n\n20, 2022, meeting as well, by telephone because she would be \" out of town on business. i2 The\nword \"business\" encompasses a variety of activities and subjects. Black's Law Dictionary 226\n9th ed. 2009) ( defining \" business\"\n\nto include commercial enterprises, occupations or\n\nemployment, commercial or noncommercial transactions, and \" matters that come before a\ndeliberative assembly\n\nfor its consideration\n\ns] erious\n\nwork or endeavor[;]\"\n\nBusiness\" also is broadly and\no] ne' s rightful or proper concern or interest[;]\"\n\nand action.\") \"\n\nsomewhat ambiguously defined to include \"[\n\nand \"[ a] n affair\n\nor matter[.]\"\n\nAmerican Heritage Dictionary 220\n\n2d coll. ed. 1987).\n\nAlthough it is undisputed that Ms. Collister Lazzari provided timely notice of her\n\nrequest to attend the December 20, 2022, meeting, remotely, it is unclear from the wording of\nthat notification (\"\n\nout\n\nof town\n\non\n\nbusiness[ ]\")\n\nwhether she was claiming to be physically unable\n\nto attend the meeting because of employment purposes or the business of the Board.\nPresumably, the Board would have been aware if she was unable to attend the meeting because\nof Board business, and there is no indication that the Board had independent knowledge that she\nwas absent for that reason. Instead, the Board' s response to this office states that \" Ms. Collister-\n\nLazzari represented to the Board that she would be out of town on business, which is a qualifying\nreason\n\nfor remote participation\n\nunder\n\nboth Board policy 2: 220 and the OMA. * * *\n\nThe Board\n\nBarrington Community Unit School District No. 220 Board of Education, Board Policy No. 2: 220\nBoard of Education Meeting Procedure, Quorum and Participation by Audio or Video Means ( last revised March\n1, 2022).\n\n2E- mail from Leah Collister Lazzari\n\nto\n\nRobert\n\nHunt and Jeanine\n\nStark ( November\n\n29, 2022).\n\n\fThe Honorable Sandra Ficke- Bradford\n\nMay 11, 2023\nPage 5\n\nreceived no information contradicting Ms. Collister- Lazzari' s representation. i3 Yet section 7( a)\nof OMA only permitted the Board to allow Ms. Collister Lazzari to attend the meeting remotely\nif she was out of town on Board business or business related to her employment. Her notification\nto the\n\nRecording Secretary that she was \" out of town on business[ ]\"\n\nthose\n\nreasons.\n\ndid not specify either of\n\nprovided copies of e- mails obtained via FOIA that\nwere sent among individual Board members and District staff and referenced Ms. Collister\nand\n\nLazzari' s absence as being for both vacation and business. However, neither those internal\ncorrespondences or other information provided to this office clearly establishes whether Ms.\n\nCollister Lazzari' s physical absence concerned her own employment purposes or Board business.\nThus, it is unclear from the available information if a permissible reason for remote attendance\napplied under section 7( a) of OMA and the Board' s rules.\n\nEven assuming Ms. Collister Lazzari was eligible to attend the meeting remotely,\nthe Board did not meet OMA' s procedural requirements for allowing her to do so. Neither the\nplain language of sections\n\n7( a)-( c) of OMA nor the Board's adopted rules on remote participation\n\nexpressly require a roll call vote. Rather, the relevant statutory language specifies, and the\nBoard's codified rules more generally provide, that a majority of Board members physically\n\npresent \" may allow\" a member to remotely attend a meeting upon receipt of advanced notice and\ndue to one of the three reasons outlined above.\nThe \" primary\n\nobjective\"\n\nin construing statutory phrases such\n\nas \"[\n\na] majority of\n\nallow\" \" is to ascertain and give effect to legislative intent, the surest and\nmost reliable indicator of which is the statutory language itself, given its plain and ordinary\n\nthe public body may\n\nPerry, 224 Ill. 2d 312, 323 ( 2007). \" Words and phrases\" in a statute\nshould not be construed in isolation but must be interpreted in light of other relevant provisions\n\nmeaning.\"\n\nPeople\n\nof the statute.\"\n\nv.\n\nPeople ex rel. Madigan\n\nv.\n\nWildermuth,\n\n2017 IL 120763, ¶ 17, 91 N.E. 3d 865, 872\n\n2017). \" In addition to the statutory language, [ a reviewing body] may consider the purpose\nbehind the law and the evils sought to be remedied, as well as the consequences that would result\nfrom construing the law one way or the other.\"\nBd., 231 Ill. 2d 593, 604 ( 2008).\n\nCounty ofDu Page v. Illinois Labor Relations\n\nAs referenced above, the clear intent of OMA is \" to ensure that the actions of\npublic bodies be taken openly[.]\"\n\n5 ILCS 120/ 1 ( West 2020).\n\nThe statutory phrase \" a majority of\n\nLetter from Brian P. Crowley, Franczek, to Christopher R. Boggs, Deputy Public Access\nCounselor,\n\nPublic Access\n\nBureau ( January\n\n18, 2023),\n\nat [ 2].\n\n\fThe Honorable\n\nSandra Ficke- Bradford\n\nMay 11, 2023\nPage 6\n\nthe public body may allow\" plainly refers to an action that may be taken by a public body. In\nparticular, the word \" majority\" connotes a vote or other means of assessing whether more\nmembers of a public body approve of doing something than disapprove. Likewise, the phrase\nmay allow\" signifies an action, even if procedural in nature, to authorize the physically absent\nmember to participate in the meeting. This office has reviewed relevant portions of a publicly available recording4 of the Board' s December 20, 2022, meeting, which reflects Ms. Collister\n\nLazzari' s participation via telephone in an attendance roll call at the start of the meeting.\nHowever, at no point did the Board express some form of majority consent to permit Ms.\nCollister Lazzari to attend the meeting remotely. Accordingly, this office is unable to conclude\n\nthat the Board established that a majority of the Board members physically present consented\nbefore allowing Ms. Collister Lazzari to remotely attend the December 20, 2022 meeting\npursuant to section 7( a) of OMA.\nBased on this office' s review of the December 20, 2022, meeting minutes\n\nprovided with the Board' s response, Ms. Collister Lazzari' s votes on various items of final action\ndid not determine their outcome. Accordingly, no action is required by the Board under these\ncircumstances to remedy its violation of OMA. However, the Board may avoid future violations\n\nof section 7( a) of OMA by altering its rules to require a majority vote or, at a minimum, asking if\nany of the physically present members object to allowing remote attendance. In addition, the\nBoard should ensure that the notification to the Recording Secretary indicates that a Board\nmember who asks to attend a meeting remotely clearly identifies a permissible reason for doing\nso under section 7( a).\nTo be sure, a public body that does not have reason to believe it is\n\nreceiving inaccurate information is not obligated to take measures to verify that a member has a\nlegitimate reason for remotely attending a meeting. When a member provides an ambiguous\n\nreason for attending a meeting remotely, however, and it is unclear if the member is even eligible\n\nto attend the meeting remotely under section 7( a) of OMA and the Board' s established and\nrecorded rules, the Board may need to obtain additional clarification from the member before\ndetermining whether to consent to the member' s remote attendance.\n\n1-ittps:// www. youtube.\n\ncom/ watch?\n\nv= la4S_\n\nSTQJHM.\n\n\fThe Honorable\n\nSandra Ficke- Bradford\n\nMay 11, 2023\nPage 7\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter. This letter serves to close these files.\nVery truly yours,\n\nCHRISTOPHER\n\nR. BOGGS\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n74763 74885 74985 o 7 attendance improper sd\ncc:\n\nVia electronic mail\n\nMr. Brian P. Crowley\nFranczek P. C.\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nbpc@franczek.\n\ncom\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"School board member attending a meeting remotely by phone","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74763/","full_text":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY\n\nGENERAL\n\nMay 11, 2023\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nVia electronic mail\n\nThe Honorable Sandra Ficke- Bradford\nPresident\n\nBarrington Community Unit School District No. 220\nBoard of Education\n\n[street address redacted for site publication -- see original PDF]\nsbradford@barrington220.\nRE:\n\norg\n\nOMA Requests for Review — 2022 PAC 74763\n2023 PAC 74885\n2023 PAC 74985\n\nand Ms. Ficke- Bradford:\n\nDear,\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2020)).\n\nThis office has consolidated three matters concerning\n\nthe same alleged violation. For the reasons explained below, the Public Access Bureau is unable\n\nDecember 20, 2022, meeting via telephone without first demonstrating majority consent of the\nBoard.\nBACKGROUND\n\nOn December\n\n21, 2022,\n\nsubmitted a Request for Review\n\n2022 PAC 74763) alleging that the Board violated section 7 of OMA (5 ILCS 120/ 7 (West\nby allowing Board member Leah Collister Lazzari to attend its December 20, 2022,\nmeeting via telephone without satisfying any of the three exceptions for remote attendance as\n2020))\n\noutlined\n\nunder\n\nsection\n\n7(a) of OMA (5 ILCS 120/ 7(a) (West 2020)).\n\nJanuary 9, 2023,\n\nand\n\nOn January 3, 2023, and\n\nsubmitted Requests for Review\n\n2023 PAC 74885 and 2023 PAC 74985, respectively) alleging the same violation.\nalso alleged that the Board failed to vote to allow Ms. Collister Lazzari to attend the meeting\nremotely.\n\nThis office sent copies of the Requests for Review to the Board and asked it to\n\nfurnish this office with copies of its December 20, 2022, meeting notice, agenda, and minutes,\n\ntogether with any rules adopted by the Board pursuant to section 7(c) of OMA (5 ILCS 120/ 7(c)\nWest 2020)).\n\nThe Public Access Bureau also asked the Board to provide a written response to\n\nthe allegations in the Requests for Review.\n\nOn January 18, 2023, the Board's legal counsel provided the requested materials\nin connection with Request for Review 2022 PAC 74763 and later provided the same written\n\nresponse for the remaining two Requests for Review. This office forwarded copies of the\nand\n\nBoard's response to\n\nindividually submitted replies.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly\n\nand that their deliberations be conducted openly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 (5th Dist. 1989).\n\nIn order for a member of a public body to attend a public meeting by means other\nthan physical presence, the procedural requirements set forth below must first be met. Sections\n7(a), 7(b), and 7(c) of OMA (5 ILCS 120/ 7(a), (b), (c) (West 2020)) provide, in relevant part:\n\na) If a quorum of the members of the public body is\nphysically present as required by Section 2. 01, a majority\n\nof the public body may allow a member of that body to\nattend the meeting by other means if the member is\n\nprevented from physically attending because of: (i)\npersonal illness or disability; (ii) employment purposes or\nthe business of the public body; or (iii) a family or other\nemergency. \" Other means\" is by video or audio conference.\nb) If a member wishes to attend a meeting by other means, the\n\nmember must notify the recording secretary or clerk of the\npublic body before the meeting unless advance notice is\nimpractical.\n\nc)\n\nA majority of the public body may allow a member to\n\nattend a meeting by other means only in accordance with\nand to the extent allowed by rules adopted by the public\n\nbody. The rules must conform to the requirements and\nrestrictions of this Section, may further limit the extent to\n\nwhich attendance by other means is allowed, and may\nprovide for the giving of additional notice to the public or\nfurther facilitate public access to meetings.\n\nUnder the plain language of these provisions, a public body with a quorum physically present has\nthe discretion to permit a member to participate in the meeting by other means for any of the\nthree purposes set forth in section 7(a) of OMA, and the public body's decision to permit a\nmember's remote attendance will not be disturbed unless it is clearly unreasonable or contrary to\n\nthe public body's remote attendance rules. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 33937, issued\nJune 8, 2015, at 3.\n\nremote\n\nThe Board provided this office with a copy of its adopted rules allowing for\nas required by section\n7(c), which paraphrase sections 7(a) and 7(b) of OMA:\n\nattendance\n\nProvided a quorum is physically present, a Board member\nmay attend a meeting by video or audio conference if he or she is\nprevented from physically\n\nattending\n\nbecause of: (1)\n\npersonal\n\nillness or disability, (2) employment or District business, or (3) a\n\nfamily or other emergency.\n\nby video or audio means, he or she must notify the recording\nsecretary or Superintendent at least 24 hours before the meeting\nunless advance notice is impractical. The recording secretary or\nSuperintendent\n\nwill inform the Board President and make\n\nappropriate arrangements. A Board member who attends a meeting\n\nby audio or video means, as provided in this policy, may\nparticipate in all aspects of the Board meeting including voting on\n\nany item. 111\nPursuant to section 7(b) of OMA and the Board's adopted rules, a Board member\n\nwho wishes to attend a meeting by audio or video conference is required to notify the recording\nsecretary or Superintendent at least 24 hours before the meeting, unless impractical. The Board's\nlegal counsel provided a copy of an e- mail that Ms. Collister Lazzari sent the Superintendent and\nhis executive assistant, who serves as the Board's recording secretary, on November 29, 2022,\nstating that she would participate in the December 6, 2022, meeting, and probably the December\n\n20, 2022, meeting as well, by telephone because she would be \" out of town on business. i2 The\nword \"business\" encompasses a variety of activities and subjects. Black's Law Dictionary 226\n9th ed. 2009) (defining \" business\"\n\nto include commercial enterprises, occupations or\n\nemployment, commercial or noncommercial transactions, and \" matters that come before a\ndeliberative assembly\n\nfor its consideration\n\ns] erious\n\nwork or endeavor[;]\"\n\nBusiness\" also is broadly and\no] ne's rightful or proper concern or interest[;]\"\n\nand action.\") \"\n\nsomewhat ambiguously defined to include \"[\n\nand \"[ a] n affair\n\nor matter[.]\"\n\nAmerican Heritage Dictionary 220\n\n2d coll. ed. 1987).\n\nAlthough it is undisputed that Ms. Collister Lazzari provided timely notice of her\n\nrequest to attend the December 20, 2022, meeting, remotely, it is unclear from the wording of\nthat notification (\"\n\nout\n\nof town\n\non\n\nbusiness[ ]\")\n\nwhether she was claiming to be physically unable\n\nto attend the meeting because of employment purposes or the business of the Board.\nPresumably, the Board would have been aware if she was unable to attend the meeting because\nof Board business, and there is no indication that the Board had independent knowledge that she\nwas absent for that reason. Instead, the Board's response to this office states that \" Ms. Collister-\n\nLazzari represented to the Board that she would be out of town on business, which is a qualifying\nreason\n\nfor remote participation\n\nunder\n\nboth Board policy 2: 220 and the OMA. * * *\n\nThe Board\n\nBarrington Community Unit School District No. 220 Board of Education, Board Policy No. 2: 220\nBoard of Education Meeting Procedure, Quorum and Participation by Audio or Video Means (last revised March\n1, 2022).\n\n2E- mail from Leah Collister Lazzari\n\nreceived no information contradicting Ms. Collister- Lazzari's representation. i3 Yet section 7(a)\nof OMA only permitted the Board to allow Ms. Collister Lazzari to attend the meeting remotely\nif she was out of town on Board business or business related to her employment. Her notification\nto the\n\nRecording Secretary that she was \" out of town on business[ ]\"\n\nthose\n\nreasons.\n\ndid not specify either of\n\nprovided copies of e- mails obtained via FOIA that\nwere sent among individual Board members and District staff and referenced Ms. Collister\nand\n\nLazzari's absence as being for both vacation and business. However, neither those internal\ncorrespondences or other information provided to this office clearly establishes whether Ms.\n\nCollister Lazzari's physical absence concerned her own employment purposes or Board business.\nThus, it is unclear from the available information if a permissible reason for remote attendance\napplied under section 7(a) of OMA and the Board's rules.\n\nEven assuming Ms. Collister Lazzari was eligible to attend the meeting remotely,\nthe Board did not meet OMA's procedural requirements for allowing her to do so. Neither the\nplain language of sections\n\n7(a)-(c) of OMA nor the Board's adopted rules on remote participation\n\nexpressly require a roll call vote. Rather, the relevant statutory language specifies, and the\nBoard's codified rules more generally provide, that a majority of Board members physically\n\npresent \" may allow\" a member to remotely attend a meeting upon receipt of advanced notice and\ndue to one of the three reasons outlined above.\nThe \" primary\n\nobjective\"\n\nin construing statutory phrases such\n\nas \"[\n\na] majority of\n\nallow\" \" is to ascertain and give effect to legislative intent, the surest and\nmost reliable indicator of which is the statutory language itself, given its plain and ordinary\n\nthe public body may\n\nPerry, 224 Ill. 2d 312, 323 (2007). \" Words and phrases\" in a statute\nshould not be construed in isolation but must be interpreted in light of other relevant provisions\n\nmeaning.\"\n\nPeople\n\nof the statute.\"\n\nv.\n\nPeople ex rel. Madigan\n\nv.\n\nWildermuth,\n\n2017 IL 120763, ¶ 17, 91 N.E. 3d 865, 872\n\n2017). \" In addition to the statutory language, [ a reviewing body] may consider the purpose\nbehind the law and the evils sought to be remedied, as well as the consequences that would result\nfrom construing the law one way or the other.\"\nBd., 231 Ill. 2d 593, 604 (2008).\n\nCounty ofDu Page v. Illinois Labor Relations\n\nAs referenced above, the clear intent of OMA is \" to ensure that the actions of\npublic bodies be taken openly[.]\"\n\n5 ILCS 120/ 1 (West 2020).\n\nThe statutory phrase \" a majority of\n\nLetter from Brian P. Crowley, Franczek, to Christopher R. Boggs, Deputy Public Access\nCounselor,\n\nthe public body may allow\" plainly refers to an action that may be taken by a public body. In\nparticular, the word \" majority\" connotes a vote or other means of assessing whether more\nmembers of a public body approve of doing something than disapprove. Likewise, the phrase\nmay allow\" signifies an action, even if procedural in nature, to authorize the physically absent\nmember to participate in the meeting. This office has reviewed relevant portions of a publicly available recording4 of the Board's December 20, 2022, meeting, which reflects Ms. Collister\n\nLazzari's participation via telephone in an attendance roll call at the start of the meeting.\nHowever, at no point did the Board express some form of majority consent to permit Ms.\nCollister Lazzari to attend the meeting remotely. Accordingly, this office is unable to conclude\n\nthat the Board established that a majority of the Board members physically present consented\nbefore allowing Ms. Collister Lazzari to remotely attend the December 20, 2022 meeting\npursuant to section 7(a) of OMA.\nBased on this office's review of the December 20, 2022, meeting minutes\n\nprovided with the Board's response, Ms. Collister Lazzari's votes on various items of final action\ndid not determine their outcome. Accordingly, no action is required by the Board under these\ncircumstances to remedy its violation of OMA. However, the Board may avoid future violations\n\nof section 7(a) of OMA by altering its rules to require a majority vote or, at a minimum, asking if\nany of the physically present members object to allowing remote attendance. In addition, the\nBoard should ensure that the notification to the Recording Secretary indicates that a Board\nmember who asks to attend a meeting remotely clearly identifies a permissible reason for doing\nso under section 7(a).\nTo be sure, a public body that does not have reason to believe it is\n\nreceiving inaccurate information is not obligated to take measures to verify that a member has a\nlegitimate reason for remotely attending a meeting. When a member provides an ambiguous\n\nreason for attending a meeting remotely, however, and it is unclear if the member is even eligible\n\nto attend the meeting remotely under section 7(a) of OMA and the Board's established and\nrecorded rules, the Board may need to obtain additional clarification from the member before\ndetermining whether to consent to the member's remote attendance.\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at the\n\nSpringfield address on the first page of this letter. This letter serves to close these files.\nVery truly yours,\n\nCHRISTOPHER\n\nR. BOGGS\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n74763 74885 74985 o 7 attendance improper sd\ncc:\n\nVia electronic mail\n\nMr. Brian P. Crowley\nFranczek P. C.\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nbpc@franczek.\n\ncom"}
{"id":1408,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-03-06","case_number":null,"request_numbers":["75047"],"title":"O'Fallon Township High School Education Committee did not violate OMA over restaurant meeting notice","filename":"75047, issued March 6, 2023.pdf","rel_path":null,"word_count":2023,"summary":"The requester alleged that the O'Fallon Township High School Education Committee violated the Open Meetings Act by failing to provide proper notice for two 'Conversations Over Coffee' meetings and by holding them at an unsuitable private restaurant location. The PAC determined that the committee did not violate the OMA, finding that the notice was sufficient and the location was accessible to the public.","plain_summary":"A citizen complained that a school committee held meetings at a restaurant without giving proper public notice and that the location was not appropriate for a public meeting. The Attorney General's office investigated and found that the committee followed the law regarding meeting notices and that the restaurant was a suitable, accessible location. Consequently, the PAC closed the file with no finding of a violation.","holding":"The O'Fallon Township High School Education Committee did not violate the Open Meetings Act regarding the notice or location of its 'Conversations Over Coffee' meetings.","legal_question":"Whether the Education Committee violated the Open Meetings Act by failing to provide adequate public notice and by holding meetings at a private restaurant.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/2.01"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"O'Fallon Township High School Education Committee","requesting_party":"Mr. Tracy Fridge","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester challenged the adequacy of notice and the appropriateness of the venue for school committee meetings held at a local restaurant.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/75047, issued March 6, 2023.pdf","sha256":"e031f49ddab6ab84012a6140a888970566e46d25bca8af3f05517b243e3ef4d5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","public meeting location","school board","open meetings act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"FFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL\n\nMarch 6, 2023\n\nVia electronic\n\nmail\n\nMr. Tracy Fridge\nfrachieseth028@yahoo. com\nVia electronic mail\n\nDr. Darcy G. Benway\nSuperintendent\n\nO' Fallon Township High School\n[street address redacted for site publication -- see original PDF]\nbenwayd@oths. us\nRE:\n\nOMA Request for Review — 2023 PAC 75047\n\nDear Mr. Fridge and Dr. Benway:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS\n\n120/ 3. 5( e) ( West 2020)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Education Committee ( Committee) of the Board of Education ( Board)\nof O' Fallon\n\nTownship High School (\" OTHS\" or \" High School\") did not violate OMA in\nconnection with its \" Conversations Over Coffee\" meetings at a local restaurant on May 9, 2022,\nand December\n\n7, 2022.\n\nIn a Request for Review submitted on January 10, 2023, Mr. Tracy Fridge\n\nalleged, in relevant part, that the Board failed to post proper notice for the May 9, 2022, and\nDecember\n\n7, 2022, \" Conversations\n\nOver Coffee\" meetings,\n\nand that it was improper for the\n\nBoard ( or one of its committees) to hold the meetings in this private establishment. In particular,\nhe alleged that the Board did not post notice of the December 7, 2022, meeting until December 6,\n2022. Mr. Fridge also claimed that he did not learn of the May 9, 2022, meeting until the agenda\nbelatedly posted for the December 7, 2022, meeting contained a typo listing the meeting date as\nMay 9, 2022. He also alleged that the restaurant at which the meetings occurred was not suitable\n\nfor an open meeting because the restaurant had control over access to the meeting on its private\n\n500 South Second Street, Springfield,\n\nIllinois 62701 • ( 217) 782- 1090 •\n\n100 West Randolph\n\nIllinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University\n\nStreet, Chicago,\nAve., Carbondale,\n\nTTY: ( 877) 844- 5461 •\n\nFax: ( 217) 782- 7046\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\f\fr.\nTracy Fridge\nDr. Darcy G. Benway\nMarch 6, 2023\nPage 3\n\nAs an initial matter, Mr. Fridge made a wide variety of allegations in his\nsubmission that do not concern the requirements of OMA. These allegations pertain to matters\nsuch as furniture expenses, the alleged exposure of personal information during the meetings, the\n\ntaking of minutes by a person other than the Board' s Clerk, and the purchasing of meals for\nBoard members. The Public Access Counselor' s authority to resolve disputes, in contrast, is\nlimited to alleged violations of OMA and the Freedom of Information Act ( 5 ILCS 140/ 1 et seq.\nWest 2020)). See 15 ILCS 205/ 7( c)( 3) ( West 2020). Accordingly, this determination letter\n\naddresses only the OMA allegations Mr. Fridge properly raised: that the Committee provided\ninsufficient notice for the \" Conversations\n\nOver Coffee\" meetings, and held the meetings in a\n\nplace that was not convenient and open to the public.\nMeeting Notice\nThe May 9, 2022, and December\n\n7, 2022, \" Conversations over Coffee\" meetings\n\nwere special meetings of the Committee, as opposed to regular meetings. For special meetings, a\n\npublic body must give notice by posting the agenda at its principal office at least 48 hours in\nadvance\n\nof the meeting.\n\n120/ 2. 02( b) ( West 2020))\n\n5 ILCS 120/ 2. 02( a) ( West 2020).\n\nSection 2. 02( b) of OMA ( 5 ILCS\n\nadds that \" a public body that has a website that the full- time staff of\n\nthe public body maintains shall post notice on its website of all meetings of the governing body\nof the public body.\" ( Emphasis added.)\nThe High School' s governing body is the Board.\nAccordingly, while posting notice of Committee meetings on the High School' s website may be\nhelpful to members of the public, the Committee does not violate OMA when it does not post\nmeeting notices on the High School' s website.\nIn the Committee' s response to this office, Dr. Benway stated:\nOTHS uses the electronic platform BoardDocs to post\nmeeting agendas, meeting minutes, and related documents online,\nin addition to the physical paper postings at the District Offices.\nOTHS conveniently posts meetings online in BoardDocs and\nreleases them as \" Featured Meetings\" at least 48 hours in advance\n\nof each meeting as required by Illinois School Code. There have\nbeen one or two occasions during my 16- year tenure as\nSuperintendent when a meeting notice was accidently overlooked\nand posted within the 48- hour requirement. OTHS has since\nimplemented checks and balances in an effort to prevent any\nuntimely postings. Accordingly, it is believed the two meetings\nquestioned by Mr. Fridge for Conversations Over Coffee were\n\n\fr.\nTracy Fridge\nDr. Darcy G. Benway\nMarch 6, 2023\nPage 4\n\nposted to BoardDocs and at the District Office at least 48 hours\n\nprior to the meeting.l31\nDr. Benway added that \" an email is also sent via the District' s automatic notification system to\nall employees, parents, guardians, and students, encouraging them to participate in Conversations\nOver Coffee. i4\n\nIn his reply, Mr. Fridge claimed that the BoardDocs site is confusing in how it\npresents information, but did not set forth evidence indicating that the Committee failed to timely\npost notice of the meetings at the District offices.\nHaving reviewed the information submitted by both parties, the Committee\ndemonstrated that it posted sufficient notice of its May 9, 2022, and December 7, 2022,\nConversations Over Coffee\" meetings by posting the agenda at OTHS' s principal office.\nTherefore, the Committee did not violate OMA in connection with notice for the meetings.\nSection\n\n2. 01 of OMA\n\nSection 2. 01 of OMA ( 5 ILCS 120/ 2. 01 ( West 2020))\n\nprovides that \"[ a] ll\n\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient\nand open to the public.\" \" By its plain terms, section 2. 01 requires a venue that is not\nopen,'\nbut ' convenient,' to the public.\"\nGerwin v. Livingston County Board, 345 Ill. App. 3d\nonly '\n352, 359 ( 4th Dist. 2003).\n\nIn addressing the meaning of \"convenient\" for purposes of section 2. 01 of OMA,\na] meeting can be open in the sense that no one is prohibited from\nattending it, but it can be held in such an ill -suited, unaccommodating, unadvantageous place that\nmembers of the public, as a practical matter, would be deterred\nfrom attending it.\" Gerwin, 345\nIll. App. 3d at 361. Still, the court found that \"[ i] t would be unreasonable to suppose the\nlegislature intended * * * that public bodies hold their meetings ' at such locations as are\nsufficient to accommodate all interested members of the public, such that they may see and hear\n\nthe\n\nGerwin court stated that \"[\n\nall proceedings\n\nin reasonable\n\ncomfort\n\nand safety.' (\n\nEmphasis in original.)\n\nGerwin, 345 Ill.\n\nApp. 3d at 361. Accordingly, the court construed section 2. 01 as requiring \" not ' absolute\naccessibility' but ' reasonable accessibility.'\nGerwin, 345 Ill. App. 3d at 362 ( quoting State ex\n\n3Letter from Darcy G. Benway Ed. D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\nPublic Access\n\nBureau,\n\nOffice of the\n\nPublic Access\n\nBureau, Office of the\n\nAttorney\n\nGeneral — State of Illinois ( January\n\n30, 2023), at 2.\n\nLetter from Darcy G. Benway Ed. D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\nAttorney General — State of Illinois ( January 30, 2023), at 2.\n\n\fr.\nTracy Fridge\nDr. Darcy G. Benway\nMarch\n\n6, 2023\n\nPage 5\n\nrel. Badke v. Village Board of Greendale, 173 Wis. 2d 553, 579, 494 N. W.2d 408, 418 ( Wis.\n1993)).\n\nIn denying that the \" Conversations Over Coffee\" meetings were held in an\ninconvenient manner, Dr. Benway asserted:\nOTHS has working relationships with the chosen venues where\n\nConversations Over Coffee have been held. No purchases are\nrequired to attend the meeting. The venue is a public restaurant and\nmeets accessibility standards and codes as are required for guests.\nMembers of the public attending the Conversations Over Coffee\nevent at the restaurant are free to come and go throughout the\nmeeting as they desire. If any restaurant or venue was ( a) not\naccessible, ( b) did not have the space to accommodate attendees, or\n\nc) required a purchase, the venue would not be used by the\n\nDistrict to hold these community events. I51\nIn his reply, Mr. Fridge argued that it was improper for the Committee to choose its meeting\nvenue based on the anticipated attendance. However, ensuring that a meeting is open and\nconvenient necessarily involves anticipating the number of attendees and making arrangements\naccordingly, and there is no indication that the venue was inadequate to accommodate all\ninterested members of the public at either meeting. Mr. Fridge also maintained that because the\nrestaurant is a private business, it could refuse service to anyone and thus the Committee did not\nhave sufficient control over the meeting space. Yet, this office did not receive information at\nodds with Dr. Benway' s assertion that OTHS has an established relationship with the restaurant\nthat allowed the Committee to hold the meetings on its own terms.\nThe \" Conversations Over Coffee\" meetings are distinguishable from the meetings\n\nat issue in the two binding opinions Mr. Fridge alluded to: Ill. Att' y Gen. Pub. Acc. Op. No. 12008, issued April 4, 2012, and Ill. Att' y Gen. Pub. Acc. Op. No. 13- 014, issued September 5,\n2013. In the former binding opinion, this office concluded that a special meeting for adopting a\ntax levy that was held in a superintendent' s home was improper because \" the fact that the\nmeeting was held at a private residence, instead of at a public location, could reasonably be\nexpected to deter citizens from attending the gathering.\"\nIll. Att'y Gen. Pub. Acc. Op. No. 12008, at 4. In contrast to the significant business conducted at that meeting, the \" Conversations\nOver Coffee\" meetings are purely discussion -based, with no agenda items and no votes.\nMoreover, holding such an informal meeting at a local fast casual restaurant like St. Louis Bread\n\nLetter from Darcy G. Benway Ed.D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\nPublic Access Bureau, Office of the\n\nAttorney General — State of Illinois ( January 30, 2023),\n\nat 2.\n\n\fr.Tracy Fridge\nDr. Darcy G. Benway\nMarch\n\n6, 2023\n\nPage 6\n\nCompany does not have the same deterrent effect as holding a meeting in a private residence, as\na restaurant is a public accommodation and thus subject to protective laws such as the Americans\nwith Disabilities Act. While there may be instances in which holding a meeting in a restaurant is\nnot convenient and open to the public, the facts do not reflect that holding the \" Conversations\nOver Coffee\" meetings in this manner under the particular circumstances here was inappropriate.\nSimilarly, the latter binding opinion is inapplicable because in that matter the meeting was held\n26 miles from the public body' s standard meeting location, whereas here the restaurant is less\nthan three miles from OTHS. Ill. Att'y Gen. Pub. Acc. Op. No. 13- 014, at 4. This office\nreceived no evidence suggesting that any members of the public were deterred from attending the\nConversations Over Coffee\" meetings as a result of the meeting location.\nFor the reasons\n\nexplained\n\nabove, the Public Access\n\nBureau concludes\n\nthat the\n\nCommittee did not violate OMA in connection with its May 9, 2022, and December 7, 2022,\nConversations Over Coffee\" meetings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\njoshua.jones@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access\n\n75047\n\no\n\n202\n\nnotice\n\nproper 201 location\n\nproper sd\n\nBureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"School committee meetings at a restaurant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75047/","full_text":"FFICE\n\nOF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL\n\nMarch 6, 2023\n\nVia electronic\n\nmail\n\nMr. Tracy Fridge\nfrachieseth028@yahoo. com\nVia electronic mail\n\nDr. Darcy G. Benway\nSuperintendent\n\nO' Fallon Township High School\n[street address redacted for site publication -- see original PDF]\nbenwayd@oths. us\nRE:\n\nOMA Request for Review — 2023 PAC 75047\n\nDear Mr. Fridge and Dr. Benway:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS\n\n120/ 3. 5(e) (West 2020)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Education Committee (Committee) of the Board of Education (Board)\nof O' Fallon\n\nTownship High School (\" OTHS\" or \" High School\") did not violate OMA in\nconnection with its \" Conversations Over Coffee\" meetings at a local restaurant on May 9, 2022,\nand December\n\n7, 2022.\n\nIn a Request for Review submitted on January 10, 2023, Mr. Tracy Fridge\n\nalleged, in relevant part, that the Board failed to post proper notice for the May 9, 2022, and\nDecember\n\n7, 2022, \" Conversations\n\nOver Coffee\" meetings,\n\nand that it was improper for the\n\nBoard (or one of its committees) to hold the meetings in this private establishment. In particular,\nhe alleged that the Board did not post notice of the December 7, 2022, meeting until December 6,\n2022. Mr. Fridge also claimed that he did not learn of the May 9, 2022, meeting until the agenda\nbelatedly posted for the December 7, 2022, meeting contained a typo listing the meeting date as\nMay 9, 2022. He also alleged that the restaurant at which the meetings occurred was not suitable\n\nfor an open meeting because the restaurant had control over access to the meeting on its private\n\nAs an initial matter, Mr. Fridge made a wide variety of allegations in his\nsubmission that do not concern the requirements of OMA. These allegations pertain to matters\nsuch as furniture expenses, the alleged exposure of personal information during the meetings, the\n\ntaking of minutes by a person other than the Board's Clerk, and the purchasing of meals for\nBoard members. The Public Access Counselor's authority to resolve disputes, in contrast, is\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq.\nWest 2020)). See 15 ILCS 205/ 7(c)(3) (West 2020). Accordingly, this determination letter\n\naddresses only the OMA allegations Mr. Fridge properly raised: that the Committee provided\ninsufficient notice for the \" Conversations\n\nOver Coffee\" meetings, and held the meetings in a\n\nplace that was not convenient and open to the public.\nMeeting Notice\nThe May 9, 2022, and December\n\n7, 2022, \" Conversations over Coffee\" meetings\n\nwere special meetings of the Committee, as opposed to regular meetings. For special meetings, a\n\npublic body must give notice by posting the agenda at its principal office at least 48 hours in\nadvance\n\nof the meeting.\n\n120/ 2. 02(b) (West 2020))\n\n5 ILCS 120/ 2. 02(a) (West 2020).\n\nSection 2. 02(b) of OMA (5 ILCS\n\nadds that \" a public body that has a website that the full- time staff of\n\nthe public body maintains shall post notice on its website of all meetings of the governing body\nof the public body.\" (Emphasis added.)\nThe High School's governing body is the Board.\nAccordingly, while posting notice of Committee meetings on the High School's website may be\nhelpful to members of the public, the Committee does not violate OMA when it does not post\nmeeting notices on the High School's website.\nIn the Committee's response to this office, Dr. Benway stated:\nOTHS uses the electronic platform BoardDocs to post\nmeeting agendas, meeting minutes, and related documents online,\nin addition to the physical paper postings at the District Offices.\nOTHS conveniently posts meetings online in BoardDocs and\nreleases them as \" Featured Meetings\" at least 48 hours in advance\n\nof each meeting as required by Illinois School Code. There have\nbeen one or two occasions during my 16- year tenure as\nSuperintendent when a meeting notice was accidently overlooked\nand posted within the 48- hour requirement. OTHS has since\n\nposted to BoardDocs and at the District Office at least 48 hours\n\nprior to the meeting.l31\nDr. Benway added that \" an email is also sent via the District's automatic notification system to\nall employees, parents, guardians, and students, encouraging them to participate in Conversations\nOver Coffee. i4\n\nIn his reply, Mr. Fridge claimed that the BoardDocs site is confusing in how it\npresents information, but did not set forth evidence indicating that the Committee failed to timely\npost notice of the meetings at the District offices.\nHaving reviewed the information submitted by both parties, the Committee\ndemonstrated that it posted sufficient notice of its May 9, 2022, and December 7, 2022,\nConversations Over Coffee\" meetings by posting the agenda at OTHS's principal office.\nTherefore, the Committee did not violate OMA in connection with notice for the meetings.\nSection\n\n2. 01 of OMA\n\nSection 2. 01 of OMA (5 ILCS 120/ 2. 01 (West 2020))\n\nprovides that \"[ a] ll\n\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient\nand open to the public.\" \" By its plain terms, section 2. 01 requires a venue that is not\nopen,'\nbut ' convenient,' to the public.\"\nGerwin v. Livingston County Board, 345 Ill. App. 3d\nonly '\n352, 359 (4th Dist. 2003).\n\nIn addressing the meaning of \"convenient\" for purposes of section 2. 01 of OMA,\na] meeting can be open in the sense that no one is prohibited from\nattending it, but it can be held in such an ill -suited, unaccommodating, unadvantageous place that\nmembers of the public, as a practical matter, would be deterred\nfrom attending it.\" Gerwin, 345\nIll. App. 3d at 361. Still, the court found that \"[ i] t would be unreasonable to suppose the\nlegislature intended * * * that public bodies hold their meetings ' at such locations as are\nsufficient to accommodate all interested members of the public, such that they may see and hear\n\nthe\n\nGerwin court stated that \"[\n\nall proceedings\n\nin reasonable\n\ncomfort\n\nand safety.' (Emphasis in original.)\n\nGerwin, 345 Ill.\n\nApp. 3d at 361. Accordingly, the court construed section 2. 01 as requiring \" not ' absolute\naccessibility' but ' reasonable accessibility.'\nGerwin, 345 Ill. App. 3d at 362 (quoting State ex\n\n3 Letter from Darcy G. Benway Ed. D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\nPublic Access\n\nBureau,\n\nOffice of the\n\nPublic Access\n\nBureau, Office of the\n\nAttorney\n\nGeneral — State of Illinois (January\n\n30, 2023), at 2.\n\nLetter from Darcy G. Benway Ed. D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\n\nrel. Badke v. Village Board of Greendale, 173 Wis. 2d 553, 579, 494 N. W.2d 408, 418 (Wis.\n1993)).\n\nIn denying that the \" Conversations Over Coffee\" meetings were held in an\ninconvenient manner, Dr. Benway asserted:\nOTHS has working relationships with the chosen venues where\n\nConversations Over Coffee have been held. No purchases are\nrequired to attend the meeting. The venue is a public restaurant and\nmeets accessibility standards and codes as are required for guests.\nMembers of the public attending the Conversations Over Coffee\nevent at the restaurant are free to come and go throughout the\nmeeting as they desire. If any restaurant or venue was (a) not\naccessible, (b) did not have the space to accommodate attendees, or\n\nc) required a purchase, the venue would not be used by the\n\nDistrict to hold these community events. I51\nIn his reply, Mr. Fridge argued that it was improper for the Committee to choose its meeting\nvenue based on the anticipated attendance. However, ensuring that a meeting is open and\nconvenient necessarily involves anticipating the number of attendees and making arrangements\naccordingly, and there is no indication that the venue was inadequate to accommodate all\ninterested members of the public at either meeting. Mr. Fridge also maintained that because the\nrestaurant is a private business, it could refuse service to anyone and thus the Committee did not\nhave sufficient control over the meeting space. Yet, this office did not receive information at\nodds with Dr. Benway's assertion that OTHS has an established relationship with the restaurant\nthat allowed the Committee to hold the meetings on its own terms.\nThe \" Conversations Over Coffee\" meetings are distinguishable from the meetings\n\nat issue in the two binding opinions Mr. Fridge alluded to: Ill. Att' y Gen. Pub. Acc. Op. No. 12008, issued April 4, 2012, and Ill. Att' y Gen. Pub. Acc. Op. No. 13- 014, issued September 5,\n2013. In the former binding opinion, this office concluded that a special meeting for adopting a\ntax levy that was held in a superintendent's home was improper because \" the fact that the\nmeeting was held at a private residence, instead of at a public location, could reasonably be\nexpected to deter citizens from attending the gathering.\"\nIll. Att'y Gen. Pub. Acc. Op. No. 12008, at 4. In contrast to the significant business conducted at that meeting, the \" Conversations\nOver Coffee\" meetings are purely discussion -based, with no agenda items and no votes.\nMoreover, holding such an informal meeting at a local fast casual restaurant like St. Louis Bread\n\nLetter from Darcy G. Benway Ed.D., Superintendent, to Joshua M. Jones, Deputy Bureau Chief,\n\nCompany does not have the same deterrent effect as holding a meeting in a private residence, as\na restaurant is a public accommodation and thus subject to protective laws such as the Americans\nwith Disabilities Act. While there may be instances in which holding a meeting in a restaurant is\nnot convenient and open to the public, the facts do not reflect that holding the \" Conversations\nOver Coffee\" meetings in this manner under the particular circumstances here was inappropriate.\nSimilarly, the latter binding opinion is inapplicable because in that matter the meeting was held\n26 miles from the public body's standard meeting location, whereas here the restaurant is less\nthan three miles from OTHS. Ill. Att'y Gen. Pub. Acc. Op. No. 13- 014, at 4. This office\nreceived no evidence suggesting that any members of the public were deterred from attending the\nConversations Over Coffee\" meetings as a result of the meeting location.\nFor the reasons\n\nexplained\n\nabove, the Public Access\n\nBureau concludes\n\nthat the\n\nCommittee did not violate OMA in connection with its May 9, 2022, and December 7, 2022,\nConversations Over Coffee\" meetings.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\njoshua.jones@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nJOSHUA\n\nM. JONES\n\nDeputy Bureau Chief\nPublic Access\n\n75047\n\no\n\n202\n\nnotice\n\nproper 201 location\n\nproper sd\n\nBureau"}
{"id":1409,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-10-03","case_number":null,"request_numbers":["75164","75165"],"title":"Cook County Board of Ethics violated OMA by discussing audits in closed session","filename":"75164 75165, issued October 3, 2023.pdf","rel_path":null,"word_count":1840,"summary":"The PAC reviewed allegations that the Cook County Board of Ethics improperly discussed audit status and rule changes in closed sessions during its March 10 and June 2, 2022, meetings. The PAC determined that the Board violated the Open Meetings Act by discussing matters that did not fall under any authorized closed-session exceptions.","plain_summary":"A citizen complained that the Cook County Board of Ethics held closed-door meetings to discuss topics that should have been open to the public. The Attorney General's office investigated and agreed, finding that the Board discussed audit and rule-change matters that did not qualify for a closed session. The Board was asked to release the minutes and recordings of those specific discussions to the public.","holding":"The Cook County Board of Ethics violated the Open Meetings Act by discussing topics in closed session that were not permitted under any OMA exception.","legal_question":"Whether the Cook County Board of Ethics violated the Open Meetings Act by discussing audit status and procedural rule changes during closed sessions.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Cook County Board of Ethics","requesting_party":"Ms. Priscilla Chaidez (referenced as complainant)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held closed sessions to discuss audit status and procedural rule changes that did not meet the requirements for non-public deliberation.","ocr_status":"reocr_tesseract","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_15/75164 75165, issued October 3, 2023.pdf","sha256":"5fdabc42ffcc73cd8d18933a153c52a10146d8a9a2f6c2ead8a789dfac3157df","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","open meetings act","board of ethics","meeting minutes"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOctober 3, 2023\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Thomas Szromba\nChair, Cook County Board of Ethics\n69 West Washington\n\nStreet, Suite 1130\n\n[street address redacted for site publication -- see original PDF]\ncookcounty.ethics@cookcountyil. gov\n\nRE: OMA Requests for Review – 2023 PAC 75164; 2023 PAC 75165\n\nDear\n\nand Mr. Szromba:\n\nThis determination\n\nis issued pursuant\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)).\nBureau concludes\n\n1\n\nto section 3.5( e) of the Open Meetings\n\nFor the reasons\n\nexplained\n\nAct\n\nbelow, the Public Access\n\nthat the Cook County Board of Ethics ( Board) violated\n\nOMA at its March 10,\n\n2022, and June 2, 2022, meetings.\n\nBACKGROUND\n\nOn January 23, 2023, this office received the above- referenced\nReview submitted\n\nby\n\nThe first Request\n\nRequests for\n\nfor Review2 alleged that, based on\n\nhis review of the minutes of the closed session portion of the Board' s March 10, 2022, meeting,\nthe Board improperly\n\ndiscussed\n\nthe status of an audit and procedural\n\n1This office has consolidated\n\nrule changes\n\nthese two Requests for Review in this determination\n\nin closed\n\nbecause they\n\nconcern similar allegations and legal issues.\n\n22023 PAC 75164.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Thomas Szromba\nOctober\n\n3, 2023\n\nPage 2\n\nsession.\n\nThe second Request for Review3 alleged that, based on his review of the minutes of the\n\nclosed session portion of the Board' s June 2, 2022, meeting, the Board improperly\n\ndiscussed the\n\nenforcement of the Board's annual vendor familial relationship disclosure policy in closed\nsession.\n\nOn February 1, 2023, this office sent copies of the Requests for Review to the\n\nBoard and requested that it provide copies of the March 10, 2022, and June 2, 2022, agendas,\nopen and closed session minutes,\n\nopen session recordings,\n\nand the verbatim\n\nrecordings\n\nof the\n\nrelevant closed sessions for this office's confidential review. This office also requested that the\nBoard provide a written response identifying\nthat the Board publicly\n\nthe specific exception( s) in section 2(c)\n\ncited as its basis for entering\n\nthe Board explain how that exception,\n\nclosed session.\n\nor any other exception\n\napplied to the Board' s closed session discussions.\nand on March 3, 2023, this office forwarded\n\nof OMA\n\nThis office requested\n\nthat\n\nlisted in section 2(c) of OMA,\n\nThe Board provided\n\nto\n\n4\n\nthe requested\n\nmaterials\n\nthe Board' s written answers.\n\nHe\n\ndid not submit a reply in either matter.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations\n\nbe conducted\n\n2(a) of OMA5 provides\n\nthat all meetings\n\ndiscussion\n\nopenly.\"\n\n5 ILCS 120/ 1 (West 2022).\n\ntheir scope.\"\n\n6\n\nsection\n\nof a public body must be open to the public unless the\n\nfalls within the scope of one of the exceptions\n\nsection 2(c) exceptions\n\nAccordingly,\n\nare to be \" strictly construed,\n\nSee also Henry v. Anderson,\n\nset out in section 2(c) of OMA.\n\nextending\n\nonly to subjects\n\nThe\n\nclearly within\n\n356 Ill. App. 3d 952, 996- 97 ( 4th Dist. 2005) ( strictly\n\nconstruing section 2(c)(1) of OMA)).\n\nMarch 10, 2022, Meeting\n\nIn its answer to this office, the Board stated that it entered closed session to\ndiscuss the status of an audit pursuant to section 2(c)(29) of OMA7 providing, \"[ t]his [ closed\n\n32023 PAC 75165.\n\n45 ILCS 120/ 2(c) (West 2022).\n\n55 ILCS 120/ 2(a) ( West 2022).\n\n65 ILCS 120/ 2(b) ( West 2022).\n\n75 ILCS 120/ 2(c)( 29) ( West 2022).\n\n\fMr. Thomas Szromba\nOctober\n\n3, 2023\n\nPage 3\n\nsession]\n\nincluded\n\na discussion\n\nabout two specific contributions,\n\nwhether these two specific contributions\n\ninvestigative\n\ntechniques,\n\nand\n\n8\n\nwould be found in violation.\"\n\nSection 2(c)(29) of OMA permits a public body to adjourn to closed session to\nconsider \"[\n\nm] eetings between\n\nfinance committees,\n\ninternal or external\n\nand their equivalents,\n\nauditors and governmental\n\nwhen the discussion\n\naudit committees,\n\ninvolves internal control\n\nweaknesses, identification of potential fraud risk areas, known or suspected frauds, and\nfraud interviews\n\nconducted\n\nin accordance\n\nwith generally\n\naccepted\n\nauditing\n\nstandards\n\nof the\n\nUnited States of America.\" ( Emphasis added.) The plain language of this exception limits its\napplicability\ncommittee,\napparent\n\nto instances in which the public body meets with an auditor, or an audit or finance\nto consider\n\nthe specifically\n\nenumerated\n\ntopics.\n\nThe Board did not state, and it is not\n\nto this office, that the Board' s March 10, 2022, closed session discussion\n\nauditor or relevant\nAccordingly,\n\ncommittee\n\nnor that the discussion\n\nthis office concludes\n\npertained\n\nincluded\n\nan\n\nto any of the listed subjects.\n\nthat the Board' s closed session discussion\n\ndid not fall within\n\nthe scope of section 2(c)(29).\n\nThe Board did not identify a closed session exception that permitted it to enter\nclosed session to discuss the proposed procedural\n\nrule changes, stating only that it entered closed\n\nsession pursuant to \"deliberative process, attorney client privilege.\"\nhowever,\n\npermits\n\na public body to consider\n\nmatter to be considered\nwould run counter\n\nNo provision of OMA,\n\nin closed session merely because\n\nis a part of that public body' s deliberative\n\nprocess.\n\nthe subject\n\nSuch an interpretation\n\nto the clear intent of OMA \" to assure that agency actions be taken openly and\n\nthat their deliberations\nDist. 1989).\n\nmatters\n\n9\n\nbe conducted\n\nopenly.\"\n\nGosnell\n\nv. Hogan, 179 Ill. App. 3d 161, 171 ( 5th\n\nFurther, while section 2(c)( 11) of OMA10 permits a public body to close a meeting\n\nto discuss pending or probable litigation, there is not an OMA exception that authorizes a closed\nsession discussion\ndiscussion\n\nbased only on a general claim of attorney- client privilege.\n\nof procedural\n\nrule changes did not involve pending or probable\n\nAccordingly,\nand the procedural\nthese violations\n\nthis office concludes\n\nthat the Board improperly\n\nrule changes in closed session.\n\nby making publicly available\n\ndiscussed\n\nits audit\n\nThe Board, however, has already remedied\n\nthose referenced\n\nminutes and closed session verbatim recording.\n\nThe Board' s\n\nlitigation.\n\nTherefore,\n\nportions\n\nof the closed session\n\nno further remedy is necessary at this\n\n8Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\nGeneral], [ Public Access Bureau] ( undated).\n\n9Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\nGeneral], [ Public Access Bureau] ( undated).\n\n105 ILCS 120/ 2(c)( 11) ( West 2022).\n\n\fMr. Thomas Szromba\nOctober\n\n3, 2023\n\nPage 4\n\ntime.\n\nStill, this office cautions\n\nthe Board to strictly construe\n\nin the future when determining\n\nwhich, if any, exception\n\nthe scope of each OMA exception\n\napplies to a potential closed session\n\ndiscussion.\n\nJune 2, 2022, Meeting\n\nIn its response to this office, the Board stated that it entered closed session to\ndiscuss of the enforcement\n\nof the Board' s annual vendor familial\n\nrelationship\n\ndisclosure\n\npursuant\n\nto sections 2(c)(4) and 2(c)(15) of OMA11 stating, \"[ s] taff was seeking permission to forego\nenforcement\n\ndue to investigative\n\ncommunications\n\nissues and providing factual evidence related to attorney- client\n\nand preliminary\n\ndiscussions\n\nof the Cook County Code of Ordinances (\nor commission\njob performance\n\nappointee\n\nregarding\n\nCode), provides\n\nshall directly supervise\n\nof any relative\n\npolicies\n\n13\n\n12\n\nthat \"[ n] o employee,\n\nor participate\n\nof such employee,\n\nexcept in certain enumerated circumstances.\n\nand actions.\"\n\nin the evaluation\n\nSection 2-582( b)\nofficial, or board\nof the work or\n\nofficial or board or commission\n\nappointee\"\n\nSection 2-582(e) of the Code requires any person\n\ndoing business with Cook County to disclose to the Board the existence of any relevant familial\n\nrelationship; section 2-582(f) of the Code requires disclosure by January 2 of each calendar year\nor within 30 days of the execution of a contract or lease.\n\nSection\n\n2(c)(4) permits\n\na public body to hold closed meetings\n\nevidence\n\nor testimony\n\nauthorized\n\nby law, to a quasi- adjudicative\n\navailable\n\npresented\n\nfor public inspection\n\nEmphasis\n\nadded.)\n\n14\n\nin open hearing,\nbody * * *\n\na written decision\n\nto consider\n\nor in closed hearing where specifically\nprovided\n\nthat the body prepares\n\nsetting forth its determinative\n\nand makes\n\nreasoning.\"\n\nThe Board appears to argue that this provision permits it to consider in\n\nclosed session when to start enforcing the disclosure requirements in section 2-582(e) of the\nCode.\n\nThe plain language of the exception,\n\nwhich a quasi- adjudicative\n\nhowever, limits its applicability\n\nto instances in\n\npublic body15 enters into closed session to consider\n\nevidence\n\nor\n\n115 ILCS 120/ 2(c)( 4), (c)( 15) ( West 2022).\n\n12Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\nGeneral], [ Public Access Bureau] ( undated).\n\n13Cook County Code of Ordinances, Chapter 2, Section 2 -582( b),\nhttps:// library. municode. com/ il/cook_ county/ codes/ code_ of_ordinances? nodeId= PTIGEOR_ CH2AD_ ARTVIIET .\n\n14Cook County Code of Ordinances, Chapter 2, Sections 2 -582( e), ( f),\nhttps:// library. municode. com/ il/cook_ county/ codes/ code_ of_ordinances? nodeId= PTIGEOR_ CH2AD_ ARTVIIET.\n\n15Section 2(c) of OMA defines a \" quasi- adjudicative\nlaw or ordinance with the responsibility\nbased thereon.\"\n\nbody\" as \" an administrative\n\nbody charged by\n\nto conduct hearings, receive evidence or testimony and make determinations\n\n\fMr. Thomas Szromba\nOctober\n\n3, 2023\n\nPage 5\n\ntestimony\n\nthat has been presented\n\nduring a hearing.\n\nrecording of the June 2, 2022, meeting.\n\nThis office has listened\n\nto the closed session\n\nThe Board did not discuss evidence or testimony\n\npresented at any hearing about any alleged violations of the section 2-582(e) disclosure\nrequirements;\n\nthe discussion\n\nany specific\n\nalleged violation\n\nclosed session discussion\n\nSection\n\nwas about a general enforcement\nof the Code.\n\nAccordingly,\n\npolicy decision rather than about\n\nthis office concludes\n\nthat the Board' s\n\ndid not fall within the scope of section 2(c)(4) of OMA.\n\n2(c)(15) of OMA permits\n\npublic bodies to hold closed meetings\n\nto\n\nconsider \"[ p]rofessional ethics or performance when considered by an advisory body appointed\nto advise a licensing or regulatory\ncompetence.\"\n\nagency on matters germane to the advisory body' s field of\n\nThe Public Access Bureau has previously\n\nrelied on section 2(c)( 15) of OMA to conduct\nis limited to professional\nIllinois Department\n\nadvisory\n\nof Financial\n\ndetermined\n\nthat the Board improperly\n\na closed session discussion\n\ngroups appointed\n\nand Professional\n\nbecause\n\nto assist governmental\n\nRegulation,\n\nin carrying\n\nthis provision\n\nagencies,\n\nsuch as the\n\nout its licensing\n\nresponsibilities, and because there is no indication that the Board fits within that description. Ill.\nAtt' y Gen. PAC Req. Rev. Ltr. 74933, issued May 31, 2023, at 2-3. This office adopts the same\n\nconclusion expressed in that determination for the Board's June 2, 2022, meeting.\n\nAdditionally, it is not apparent to this office that the discussion fell within any\nother OMA exception.\n\nAccordingly,\n\nwhether\n\nto delay the enforcement\n\nsession.\n\nThe Board has already\n\nthis office concludes\n\nthat the Board improperly\n\nof the section 2- 582( e) disclosure\ndisclosed\n\npublic the content of these portions\n\nrequirements\n\na copy of the closed session minutes\n\nof the closed session;\n\nthis office requests\n\ndiscussed\n\nin closed\n\nin which it made\n\nthat the Board also\n\nvote to disclose and make publicly available those portions of the closed session verbatim\n\nrecording.\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nnot require the issuance of a binding opinion.\n\nThis matter is closed.\n\nmy e- mail address is Shannon. Barnaby@ilag.\n\ngov.\n\nof this matter does\n\nIf you have any questions,\n\nVery truly yours,\n\nSHANNON\n\nBARNABY\n\nSenior Assistant\n\nAttorney\n\nPublic Access Bureau\n\n75164 75165 o 2c4 improper 2c15 improper 2c29 improper co\n\nGeneral\n\n\fMr. Thomas Szromba\nOctober\n\n3, 2023\n\nPage 6\n\ncc:\n\nVia electronic\n\nmail\n\nMs. Priscilla Chaidez\n\nExecutive Assistant\nCook County Board of Ethics\n69 West Washington\n\nStreet, Suite 1130\n\nChicago, Illinois 60602\n\nPriscilla.Chaidez@cookcountyil. gov\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOctober 3, 2023\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Thomas Szromba\nChair, Cook County Board of Ethics\n69 West Washington\n\nStreet, Suite 1130\n\n[street address redacted for site publication -- see original PDF]\ncookcounty.ethics@cookcountyil. gov\n\nRE: OMA Requests for Review – 2023 PAC 75164; 2023 PAC 75165\n\nDear\n\nand Mr. Szromba:\n\nThis determination\n\nis issued pursuant\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)).\nBureau concludes\n\n1\n\nto section 3.5(e) of the Open Meetings\n\nFor the reasons\n\nexplained\n\nAct\n\nbelow, the Public Access\n\nthat the Cook County Board of Ethics (Board) violated\n\nOMA at its March 10,\n\n2022, and June 2, 2022, meetings.\n\nBACKGROUND\n\nOn January 23, 2023, this office received the above- referenced\nReview submitted\n\nby\n\nThe first Request\n\nRequests for\n\nfor Review2 alleged that, based on\n\nhis review of the minutes of the closed session portion of the Board's March 10, 2022, meeting,\nthe Board improperly\n\ndiscussed\n\nthe status of an audit and procedural\n\n1 This office has consolidated\n\nrule changes\n\nthese two Requests for Review in this determination\n\nin closed\n\nbecause they\n\nconcern similar allegations and legal issues.\n\n22023 PAC 75164.\n\nsession.\n\nThe second Request for Review3 alleged that, based on his review of the minutes of the\n\nclosed session portion of the Board's June 2, 2022, meeting, the Board improperly\n\ndiscussed the\n\nenforcement of the Board's annual vendor familial relationship disclosure policy in closed\nsession.\n\nOn February 1, 2023, this office sent copies of the Requests for Review to the\n\nBoard and requested that it provide copies of the March 10, 2022, and June 2, 2022, agendas,\nopen and closed session minutes,\n\nopen session recordings,\n\nand the verbatim\n\nrecordings\n\nof the\n\nrelevant closed sessions for this office's confidential review. This office also requested that the\nBoard provide a written response identifying\nthat the Board publicly\n\nthe specific exception(s) in section 2(c)\n\ncited as its basis for entering\n\nthe Board explain how that exception,\n\nclosed session.\n\nor any other exception\n\napplied to the Board's closed session discussions.\nand on March 3, 2023, this office forwarded\n\nof OMA\n\nThis office requested\n\nthat\n\nlisted in section 2(c) of OMA,\n\nThe Board provided\n\nto\n\n4\n\nthe requested\n\nmaterials\n\nthe Board's written answers.\n\nHe\n\ndid not submit a reply in either matter.\n\nDETERMINATION\n\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\nthat their deliberations\n\nbe conducted\n\n2(a) of OMA5 provides\n\nthat all meetings\n\ndiscussion\n\nopenly.\"\n\n5 ILCS 120/ 1 (West 2022).\n\ntheir scope.\"\n\n6\n\nsection\n\nof a public body must be open to the public unless the\n\nfalls within the scope of one of the exceptions\n\nsection 2(c) exceptions\n\nAccordingly,\n\nare to be \" strictly construed,\n\nSee also Henry v. Anderson,\n\nset out in section 2(c) of OMA.\n\nextending\n\nonly to subjects\n\nThe\n\nclearly within\n\n356 Ill. App. 3d 952, 996- 97 (4th Dist. 2005) (strictly\n\nconstruing section 2(c)(1) of OMA)).\n\nMarch 10, 2022, Meeting\n\nIn its answer to this office, the Board stated that it entered closed session to\ndiscuss the status of an audit pursuant to section 2(c)(29) of OMA7 providing, \"[ t]his [ closed\n\nsession]\n\nincluded\n\na discussion\n\nabout two specific contributions,\n\nwhether these two specific contributions\n\ninvestigative\n\ntechniques,\n\nand\n\n8\n\nwould be found in violation.\"\n\nSection 2(c)(29) of OMA permits a public body to adjourn to closed session to\nconsider \"[\n\nm] eetings between\n\nfinance committees,\n\ninternal or external\n\nand their equivalents,\n\nauditors and governmental\n\nwhen the discussion\n\naudit committees,\n\ninvolves internal control\n\nweaknesses, identification of potential fraud risk areas, known or suspected frauds, and\nfraud interviews\n\nconducted\n\nin accordance\n\nwith generally\n\naccepted\n\nauditing\n\nstandards\n\nof the\n\nUnited States of America.\" (Emphasis added.) The plain language of this exception limits its\napplicability\ncommittee,\napparent\n\nto instances in which the public body meets with an auditor, or an audit or finance\nto consider\n\nthe specifically\n\nenumerated\n\ntopics.\n\nThe Board did not state, and it is not\n\nto this office, that the Board's March 10, 2022, closed session discussion\n\nauditor or relevant\nAccordingly,\n\ncommittee\n\nnor that the discussion\n\nthis office concludes\n\npertained\n\nincluded\n\nan\n\nto any of the listed subjects.\n\nthat the Board's closed session discussion\n\ndid not fall within\n\nthe scope of section 2(c)(29).\n\nThe Board did not identify a closed session exception that permitted it to enter\nclosed session to discuss the proposed procedural\n\nrule changes, stating only that it entered closed\n\nsession pursuant to \"deliberative process, attorney client privilege.\"\nhowever,\n\npermits\n\na public body to consider\n\nmatter to be considered\nwould run counter\n\nNo provision of OMA,\n\nin closed session merely because\n\nis a part of that public body's deliberative\n\nprocess.\n\nthe subject\n\nSuch an interpretation\n\nto the clear intent of OMA \" to assure that agency actions be taken openly and\n\nthat their deliberations\nDist. 1989).\n\nmatters\n\n9\n\nbe conducted\n\nopenly.\"\n\nGosnell\n\nv. Hogan, 179 Ill. App. 3d 161, 171 (5th\n\nFurther, while section 2(c)(11) of OMA10 permits a public body to close a meeting\n\nto discuss pending or probable litigation, there is not an OMA exception that authorizes a closed\nsession discussion\ndiscussion\n\nbased only on a general claim of attorney- client privilege.\n\nof procedural\n\nrule changes did not involve pending or probable\n\nAccordingly,\nand the procedural\nthese violations\n\nthis office concludes\n\nthat the Board improperly\n\nrule changes in closed session.\n\nby making publicly available\n\ndiscussed\n\nits audit\n\nThe Board, however, has already remedied\n\nthose referenced\n\nminutes and closed session verbatim recording.\n\nThe Board's\n\nlitigation.\n\nTherefore,\n\nportions\n\nof the closed session\n\nno further remedy is necessary at this\n\n8 Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\nGeneral], [ Public Access Bureau] (undated).\n\n9 Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\n\ntime.\n\nStill, this office cautions\n\nthe Board to strictly construe\n\nin the future when determining\n\nwhich, if any, exception\n\nthe scope of each OMA exception\n\napplies to a potential closed session\n\ndiscussion.\n\nJune 2, 2022, Meeting\n\nIn its response to this office, the Board stated that it entered closed session to\ndiscuss of the enforcement\n\nof the Board's annual vendor familial\n\nrelationship\n\ndisclosure\n\npursuant\n\nto sections 2(c)(4) and 2(c)(15) of OMA11 stating, \"[ s] taff was seeking permission to forego\nenforcement\n\ndue to investigative\n\ncommunications\n\nissues and providing factual evidence related to attorney- client\n\nand preliminary\n\ndiscussions\n\nof the Cook County Code of Ordinances (or commission\njob performance\n\nappointee\n\nregarding\n\nCode), provides\n\nshall directly supervise\n\nof any relative\n\npolicies\n\n13\n\n12\n\nthat \"[ n] o employee,\n\nor participate\n\nof such employee,\n\nexcept in certain enumerated circumstances.\n\nand actions.\"\n\nin the evaluation\n\nSection 2-582(b)\nofficial, or board\nof the work or\n\nofficial or board or commission\n\nappointee\"\n\nSection 2-582(e) of the Code requires any person\n\ndoing business with Cook County to disclose to the Board the existence of any relevant familial\n\nrelationship; section 2-582(f) of the Code requires disclosure by January 2 of each calendar year\nor within 30 days of the execution of a contract or lease.\n\nSection\n\n2(c)(4) permits\n\na public body to hold closed meetings\n\nevidence\n\nor testimony\n\nauthorized\n\nby law, to a quasi- adjudicative\n\navailable\n\npresented\n\nfor public inspection\n\nEmphasis\n\nadded.)\n\n14\n\nin open hearing,\nbody * * *\n\na written decision\n\nto consider\n\nor in closed hearing where specifically\nprovided\n\nthat the body prepares\n\nsetting forth its determinative\n\nand makes\n\nreasoning.\"\n\nThe Board appears to argue that this provision permits it to consider in\n\nclosed session when to start enforcing the disclosure requirements in section 2-582(e) of the\nCode.\n\nThe plain language of the exception,\n\nwhich a quasi- adjudicative\n\nhowever, limits its applicability\n\nto instances in\n\npublic body15 enters into closed session to consider\n\nevidence\n\nor\n\n115 ILCS 120/ 2(c)(4), (c)(15) (West 2022).\n\n12 Letter from [ Cook County Board of Ethics] to Shannon Barnaby, [ Senior Assistant Attorney\nGeneral], [ Public Access Bureau] (undated).\n\n13 Cook County Code of Ordinances, Chapter 2, Section 2 -582(b),\nhttps:// library. municode. com/ il/cook_ county/ codes/ code_ of_ordinances? nodeId= PTIGEOR_ CH2AD_ ARTVIIET.\n\n14 Cook County Code of Ordinances, Chapter 2, Sections 2 -582(e), (f),\nhttps:// library. municode. com/ il/cook_ county/ codes/ code_ of_ordinances? nodeId= PTIGEOR_ CH2AD_ ARTVIIET.\n\n15 Section 2(c) of OMA defines a \" quasi- adjudicative\n\ntestimony\n\nthat has been presented\n\nduring a hearing.\n\nrecording of the June 2, 2022, meeting.\n\nThis office has listened\n\nto the closed session\n\nThe Board did not discuss evidence or testimony\n\npresented at any hearing about any alleged violations of the section 2-582(e) disclosure\nrequirements;\n\nthe discussion\n\nany specific\n\nalleged violation\n\nclosed session discussion\n\nSection\n\nwas about a general enforcement\nof the Code.\n\nAccordingly,\n\npolicy decision rather than about\n\nthis office concludes\n\nthat the Board's\n\ndid not fall within the scope of section 2(c)(4) of OMA.\n\n2(c)(15) of OMA permits\n\npublic bodies to hold closed meetings\n\nto\n\nconsider \"[ p]rofessional ethics or performance when considered by an advisory body appointed\nto advise a licensing or regulatory\ncompetence.\"\n\nagency on matters germane to the advisory body's field of\n\nThe Public Access Bureau has previously\n\nrelied on section 2(c)(15) of OMA to conduct\nis limited to professional\nIllinois Department\n\nadvisory\n\nof Financial\n\ndetermined\n\nthat the Board improperly\n\na closed session discussion\n\ngroups appointed\n\nand Professional\n\nbecause\n\nto assist governmental\n\nRegulation,\n\nin carrying\n\nthis provision\n\nagencies,\n\nsuch as the\n\nout its licensing\n\nresponsibilities, and because there is no indication that the Board fits within that description. Ill.\nAtt' y Gen. PAC Req. Rev. Ltr. 74933, issued May 31, 2023, at 2-3. This office adopts the same\n\nconclusion expressed in that determination for the Board's June 2, 2022, meeting.\n\nAdditionally, it is not apparent to this office that the discussion fell within any\nother OMA exception.\n\nAccordingly,\n\nwhether\n\nto delay the enforcement\n\nsession.\n\nThe Board has already\n\nthis office concludes\n\nthat the Board improperly\n\nof the section 2- 582(e) disclosure\ndisclosed\n\npublic the content of these portions\n\nrequirements\n\na copy of the closed session minutes\n\nof the closed session;\n\nthis office requests\n\ndiscussed\n\nin closed\n\nin which it made\n\nthat the Board also\n\nvote to disclose and make publicly available those portions of the closed session verbatim\n\nrecording.\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nnot require the issuance of a binding opinion.\n\nThis matter is closed.\n\nmy e- mail address is Shannon. Barnaby@ilag.\n\ngov.\n\nof this matter does\n\nIf you have any questions,\n\nVery truly yours,\n\nSHANNON\n\nBARNABY\n\ncc:\n\nVia electronic\n\nmail\n\nMs. Priscilla Chaidez\n\nExecutive Assistant\nCook County Board of Ethics\n69 West Washington\n\nStreet, Suite 1130\n\nChicago, Illinois 60602\n\nPriscilla.Chaidez@cookcountyil. gov","plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of audit status and rule changes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75164/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 3, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Thomas Szromba\n\nChair, Cook County Board of Ethics\n[street address redacted for site publication -- see original PDF]\ncookcounty.ethics@cookcountyil.gov\n\nRE: OMA Requests for Review — 2023 PAC 75164; 2023 PAC 75165\n\nDear i and Mr. Szromba:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).! For the reasons explained below, the Public Access\nBureau concludes that the Cook County Board of Ethics (Board) violated OMA at its March 10,\n2022, and June 2, 2022, meetings.\n\nBACKGROUND\n\nOn January 23, 2023, this office received the above-referenced Requests for\nReview submitted by NM. The first Request for Review’ alleged that, based on\nhis review of the minutes of the closed session portion of the Board's March 10, 2022, meeting,\nthe Board improperly discussed the status of an audit and procedural rule changes in closed\n\n'This office has consolidated these two Requests for Review in this determination because they\nconcern similar allegations and legal issues.\n\n22023 PAC 75164.\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 « (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMr. Thomas Szromba\nOctober 3, 2023\nPage 2\n\nsession. The second Request for Review? alleged that, based on his review of the minutes of the\nclosed session portion of the Board's June 2, 2022, meeting, the Board improperly discussed the\nenforcement of the Board's annual vendor familial relationship disclosure policy in closed\nsession.\n\nOn February 1, 2023, this office sent copies of the Requests for Review to the\nBoard and requested that it provide copies of the March 10, 2022, and June 2, 2022, agendas,\nopen and closed session minutes, open session recordings, and the verbatim recordings of the\nrelevant closed sessions for this office's confidential review. This office also requested that the\nBoard provide a written response identifying the specific exception(s) in section 2(c)* of OMA\nthat the Board publicly cited as its basis for entering closed session. This office requested that\nthe Board explain how that exception, or any other exception listed in section 2(c) of OMA,\napplied to the Board's closed session discussions. The Board provided the requested materials\nand on March 3, 2023, this office forwarded AR hc Board's written answers. He\ndid not submit a reply in either matter.\n\nDETERMINATION\n\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Accordingly, section\n2(a) of OMA? provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. The\nsection 2(c) exceptions are to be \"strictly construed, extending only to subjects clearly within\ntheir scope.\"° See also Henry v. Anderson, 356 Ill. App. 3d 952, 996-97 (4th Dist. 2005) (strictly\nconstruing section 2(c)(1) of OMA)).\n\nMarch 10, 2022, Meeting\n\nIn its answer to this office, the Board stated that it entered closed session to\ndiscuss the status of an audit pursuant to section 2(c)(29) of OMA’ providing, \"[t]his [closed\n\n32023 PAC 75165.\n\n45 ILCS 120/2(c) (West 2022).\n55 ILCS 120/2(a) (West 2022).\n65 ILCS 120/2(b) (West 2022).\n\n7§ ILCS 120/2(c)(29) (West 2022).\n\nMr. Thomas Szromba\nOctober 3, 2023\nPage 3\n\nsession] included a discussion about two specific contributions, investigative techniques, and\nwhether these two specific contributions would be found in violation.\"®\n\nSection 2(c)(29) of OMA permits a public body to adjourn to closed session to\nconsider \"[m]eetings between internal or external auditors and governmental audit committees,\nfinance committees, and their equivalents, when the discussion involves internal control\nweaknesses, identification of potential fraud risk areas, known or suspected frauds, and\nfraud interviews conducted in accordance with generally accepted auditing standards of the\nUnited States of America.\" (Emphasis added.) The plain language of this exception limits its\napplicability to instances in which the public body meets with an auditor, or an audit or finance\ncommittee, to consider the specifically enumerated topics. The Board did not state, and it is not\napparent to this office, that the Board's March 10, 2022, closed session discussion included an\nauditor or relevant committee nor that the discussion pertained to any of the listed subjects.\nAccordingly, this office concludes that the Board's closed session discussion did not fall within\nthe scope of section 2(c)(29).\n\nThe Board did not identify a closed session exception that permitted it to enter\nclosed session to discuss the proposed procedural rule changes, stating only that it entered closed\nsession pursuant to \"deliberative process, attorney client privilege.\"” No provision of OMA,\nhowever, permits a public body to consider matters in closed session merely because the subject\nmatter to be considered is a part of that public body's deliberative process. Such an interpretation\nwould run counter to the clear intent of OMA \"to assure that agency actions be taken openly and\nthat their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (Sth\nDist. 1989). Further, while section 2(c)(11) of OMA'® permits a public body to close a meeting\nto discuss pending or probable litigation, there is not an OMA exception that authorizes a closed\nsession discussion based only on a general claim of attorney-client privilege. The Board's\ndiscussion of procedural rule changes did not involve pending or probable litigation.\n\nAccordingly, this office concludes that the Board improperly discussed its audit\nand the procedural rule changes in closed session. The Board, however, has already remedied\nthese violations by making publicly available those referenced portions of the closed session\nminutes and closed session verbatim recording. Therefore, no further remedy is necessary at this\n\n8Letter from [Cook County Board of Ethics] to Shannon Barnaby, [Senior Assistant Attorney\nGeneral], [Public Access Bureau] (undated).\n\nLetter from [Cook County Board of Ethics] to Shannon Barnaby, [Senior Assistant Attorney\nGeneral], [Public Access Bureau] (undated).\n\n105 TLCS 120/2(c)(11) (West 2022).\n\nMr. Thomas Szromba\nOctober 3, 2023\nPage 4\n\ntime. Still, this office cautions the Board to strictly construe the scope of each OMA exception\nin the future when determining which, if any, exception applies to a potential closed session\ndiscussion.\n\nJune 2, 2022, Meeting\n\nIn its response to this office, the Board stated that it entered closed session to\ndiscuss of the enforcement of the Board's annual vendor familial relationship disclosure pursuant\nto sections 2(c)(4) and 2(c)(15) of OMA\"! stating, \"[s]taff was seeking permission to forego\nenforcement due to investigative issues and providing factual evidence related to attorney-client\ncommunications and preliminary discussions regarding policies and actions.\"'” Section 2-582(b)\nof the Cook County Code of Ordinances (Code), provides that \"[n]o employee, official, or board\nor commission appointee shall directly supervise or participate in the evaluation of the work or\njob performance of any relative of such employee, official or board or commission appointee\"\nexcept in certain enumerated circumstances.'* Section 2-582(e) of the Code requires any person\ndoing business with Cook County to disclose to the Board the existence of any relevant familial\nrelationship; section 2-582(f) of the Code requires disclosure by January 2 of each calendar year\nor within 30 days of the execution of a contract or lease.'*\n\nSection 2(c)(4) permits a public body to hold closed meetings to consider\n\n\"evidence or testimony presented in open hearing, or in closed hearing where specifically\nauthorized by law, to a quasi-adjudicative body * * * provided that the body prepares and makes\navailable for public inspection a written decision setting forth its determinative reasoning.\"\n(Emphasis added.) The Board appears to argue that this provision permits it to consider in\nclosed session when to start enforcing the disclosure requirements in section 2-582(e) of the\nCode. The plain language of the exception, however, limits its applicability to instances in\nwhich a quasi-adjudicative public body!> enters into closed session to consider evidence or\n\n115 ILCS 120/2(c)(4), (c)(15) (West 2022).\n\n\"27 etter from [Cook County Board of Ethics] to Shannon Barnaby, [Senior Assistant Attorney\nGeneral], [Public Access Bureau] (undated).\n\nCook County Code of Ordinances, Chapter 2, Section 2-582(b),\nhttps://library.municode.com/il/cook_county/codes/code_of_ordinances?nodeld=PTIGEOR_CH2AD_ARTVIIET.\n\n'4Cook County Code of Ordinances, Chapter 2, Sections 2-582(e), (f),\nhttps://library.municode.com/il/cook_county/codes/code_of_ordinances?nodeId=PTIGEOR_CH2AD_ ARTVUET.\n\n'SSection 2(c) of OMA defines a \"quasi-adjudicative body\" as \"an administrative body charged by\nlaw or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations\nbased thereon.\"\n\nMr. Thomas Szromba\nOctober 3, 2023\nPage 5\n\ntestimony that has been presented during a hearing. This office has listened to the closed session\nrecording of the June 2, 2022, meeting. The Board did not discuss evidence or testimony\npresented at any hearing about any alleged violations of the section 2-582(e) disclosure\nrequirements; the discussion was about a general enforcement policy decision rather than about\nany specific alleged violation of the Code. Accordingly, this office concludes that the Board's\nclosed session discussion did not fall within the scope of section 2(c)(4) of OMA.\n\nSection 2(c)(15) of OMA permits public bodies to hold closed meetings to\nconsider \"[p]rofessional ethics or performance when considered by an advisory body appointed\nto advise a licensing or regulatory agency on matters germane to the advisory body's field of\ncompetence.\" The Public Access Bureau has previously determined that the Board improperly\nrelied on section 2(c)(15) of OMA to conduct a closed session discussion because this provision\nis limited to professional advisory groups appointed to assist governmental agencies, such as the\nIllinois Department of Financial and Professional Regulation, in carrying out its licensing\nresponsibilities, and because there is no indication that the Board fits within that description. III.\nAtt'y Gen. PAC Req. Rev. Ltr. 74933, issued May 31, 2023, at 2-3. This office adopts the same\nconclusion expressed in that determination for the Board's June 2, 2022, meeting.\n\nAdditionally, it is not apparent to this office that the discussion fell within any\nother OMA exception. Accordingly, this office concludes that the Board improperly discussed\nwhether to delay the enforcement of the section 2-582(e) disclosure requirements in closed\nsession. The Board has already disclosed a copy of the closed session minutes in which it made\npublic the content of these portions of the closed session; this office requests that the Board also\nvote to disclose and make publicly available those portions of the closed session verbatim\nrecording.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This matter is closed. If you have any questions,\nmy e-mail address is Shannon.Barnaby@ilag.gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n75164 75165 0 2c4 improper 2c15 improper 2c29 improper co\n\nMr. Thomas Szromba\nOctober 3, 2023\nPage 6\n\noC: Via electronic mail\nMs. Priscilla Chaidez\nExecutive Assistant\nCook County Board of Ethics\n69 West Washington Street, Suite 1130\nChicago, Illinois 60602\nPriscilla. Chaidez@cookcountyil.gov"}
{"id":1411,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-13","case_number":null,"request_numbers":["75513"],"title":"PAC advises Mason Hospital Board on meeting notice clarity, no violation found","filename":"75513, issued June 13, 2023.pdf","rel_path":null,"word_count":2645,"summary":"The PAC reviewed a complaint alleging that the Mason District Hospital Board failed to provide adequate notice of its meeting location, ultimately closing the file without a formal finding of a violation while advising the Board to improve its notice procedures.","plain_summary":"A citizen complained that a hospital board meeting agenda did not clearly state where the meeting was being held, making it difficult for the public to attend. The Attorney General's office was unable to conclude that the board violated the Open Meetings Act, but asked the board to update its annual schedule of regular meetings to reflect the true meeting locations so the public has sufficient information to attend future meetings.","holding":"The PAC was unable to conclude that the Board failed to make its meeting open and convenient, but advised the Board to provide clearer notice of meeting locations in the future.","legal_question":"Whether the Board of Directors of Mason District Hospital violated the Open Meetings Act by failing to provide sufficient notice of the meeting location on its agenda.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Directors of the Mason District Hospital","requesting_party":"Mr. Bill Blessman (Chairman) / Complainants (unnamed in snippet)","pac_outcome":"Closed with advisory recommendations","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of meeting location information provided on a public body's meeting agenda.","ocr_status":"ok","ocr_quality":96.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/75513, issued June 13, 2023.pdf","sha256":"303d3277684b463e59f45dc4ef8e54326aa61a531db81d302b9b3113392d6ad5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","public access","agenda","hospital board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 13, 2023\n\nVia electronic mail\n\nVia electronic mail\nMs. Danielle M. Costello\nHinshaw & Culbertson LLP\n100 Park Avenue\nP.O. Box 1389\nRockford, Illinois 61101\ndcostello@hinshawlaw. com\nRE: OMA Request for Review – 2023 PAC 75513\nDear\n\nand Ms. Costello:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau is unable to conclude that the Board of Directors ( Board) of the Mason District Hospital\nHospital) did not make its January 25, 2023, meeting open and convenient to the public, but this\noffice asks the Board to more clearly notify the public of its meeting location( s).\nIn a Request for Review submitted on February 11, 2023,\nand\nalleged, in relevant part, that the agenda for the Board' s January 25, 2023,\nregular meeting did not notify the public that the meeting location was somewhere other than the\nboardroom, and that the process for locating the meeting was unclear and overly difficult. In\nsupport of their allegations, the\nincluded a copy of the January 25, 2023, Board\nmeeting agenda that was posted to the Board' s website, which did not specify the location of the\nmeeting. 1\n1Mason District Hospital Board of Directors, Agenda Header ( January 25, 2023).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMs. Danielle Costello\nJune 13, 2023\nPage 2\n\nOn February 27, 2023, this office forwarded a copy of the\nRequest for\nReview to the Board and asked it to provide copies of the Board' s annual schedule of meetings,\nas well as the notice and agenda for the January 25, 2023, meeting. Additionally, this office\nasked for an explanation about where the meeting was held and the information communicated to\nthe public about the meeting location. On March 8, 2023, counsel for the Board provided this\noffice with the requested materials and its written response. On March 9, 2023, this office\nforwarded a copy of the Board' s response to the\nOn March 16, 2023, the\nreplied and incorporated a statement from\nanother member of the public\nwho stated that he attended the January 25, 2023, Board meeting.\nDETERMINATION\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nAs an initial matter, this office determined that further inquiry was warranted only\nto certain parts of the\nRequest for Review. In their Request for Review, the\nalso made broad allegations pertaining to the Board' s review of executive session minutes,\nposting of meeting minutes, and posting of annual reports. Section 3.5(a) of OMA (5 ILCS\n120/ 3.5(a) ( West 2020)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * * must include a summary of the facts\nsupporting the allegation. ( Emphasis added.)\nThe\nallegation that the Board deferred its review of past closed session minutes during\nits January 25, 2023, meeting alone does not indicate that the Board violated OMA, absent facts\nindicating that the Board did not take up that matter as soon as practicable after six months had\ntranspired since the previous review. See 5 ILCS 120/ 2.06(d) (West 2021 Supp.) (\" Each public\nbody shall periodically meet to review minutes of all closed meetings. Meetings to review\nminutes shall occur every 6 months, or as soon thereafter as is practicable, taking into account\nthe nature and meeting schedule of the public body.\"). Additionally, the allegation that the\nBoard failed to post meeting minutes on its website was generalized, and, as discussed further\n\n\fMs. Danielle Costello\nJune 13, 2023\nPage 3\n\nbelow, the Board' s attorney advised that the Board' s webpage is not maintained by full-time staff\nof the public body. See 5 ILCS 120/ 2.06(b) (West 2021 Supp.) (\"[ A] public body that has a\nwebsite that the full-time staff of the public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public body's website within 10 days\nafter the approval of the minutes by the public body.\" ( Emphasis added.) Furthermore, OMA\ndoes not require that the Board post annual reports. Therefore, this office determined no further\naction was warranted as to these allegations in the\nRequest for Review.\nPosting of Meeting Location\nSection 2.02(a) of OMA (5 ILCS 120/ 2.02(a) ( West 2020)) provides that \"[ e] very\npublic body shall give public notice of the schedule of regular meetings at the beginning of each\ncalendar or fiscal year and shall state the regular dates, times, and places of such meetings.\"\nEmphasis added.) Section 2.03 of OMA (5 ILCS 120/ 2.03 (West 2020)) similarly provides, in\nrelevant part: \" In addition to the notice required by Section 2.02, each body subject to this Act\nmust, at the beginning of each calendar year or fiscal year, prepare and make available a\nschedule of all its regular meeting for such calendar or fiscal year, listing the times and places of\nsuch meetings.\" ( Emphasis added.) Section 2.02(a) also provides that \"[ a] n agenda for each\nregular meeting shall be posted at the principal office of the public body and at the location\nwhere the meeting is to be held at least 48 hours in advance of the holding of the meeting.\"\nSection 2.02(b) of OMA (5 ILCS 120/ 2.02(b) (West 2020)) adds that \" a public body that has a\nwebsite that the full-time staff of the public body maintains shall post notice on its website of\nall meetings of the governing body of the public body.\" ( Emphasis added.)\nCounsel for the Board explained in response to this office's inquiry letter that the\nagenda was posted five full days before the January 25, 2023, Board meeting in two places at the\nHospital: \" one on a notice board across from the Business Office in the Hospital ( where agendas\nare regularly posted), and a second copy on the entrance door to the West Campus building\nlocated on the Hospital' s campus), which is the building in which the meeting would occur.\" 2\nThe Board stated that these agendas identified \" West Campus\" as the meeting location and\nenclosed a copy. 3 Additionally, the Board acknowledged that the agenda posted online did not\ninclude a meeting location, but explained that a part- time employee maintained the website.\n\n2Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois ( March 8, 2023), at 1.\n3Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois ( March 8, 2023), at 1.\n\n\fMs. Danielle Costello\nJune 13, 2023\nPage 4\n\nThe Board provided this office with its schedule of annual meetings, which listed the location of\nits Board meetings as \" the Administrative Conference Room.\" 4 The Board stated in its response\nto this office, though, that \" Board meetings have been regularly held in recent months at the\nWest Campus Main Area; this is not a new location utilized by the Board for the January 25\nmeeting.\" 5\nIn the\nRequest for Review, they alleged that the agenda posted online\ndid not give notice that the meeting was being moved from the boardroom to a room in a\nseparate building. In their reply, the\nincluded a statement from\nwho\nstated: \" The only meeting agenda that I saw did NOT mention the location.\" ( Emphasis in\noriginal.) 6 It is unclear whether\nwas referring to the agenda posted online or the\nagendas posted at the Hospital. Regardless, neither the Request for Review nor the reply\ncontested whether the January 25, 2023, Board meeting agenda was posted at the meeting\nbuilding or online at least 48 hours in advance. The dispute is over whether the posted agenda( s)\nfor the January 25, 2023, Board meeting improperly omitted the specific meeting location.\nAs opposed to the annual schedule of regular meetings, OMA does not include a\nrequirement that a particular meeting agenda include the location of a meeting. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 50231, issued October 30, 2017, at 2 (\" The plain language of section\n2.02 of OMA[] does not require a public body to include the physical address of the location\nwhere the meeting will be held on its agenda or notice.\"). However, the absence of an express\nrequirement to include the meeting location of a regular meeting on the agenda must be\nunderstood in the context of the requirements to post an annual schedule of regular meetings that\nsets forth the meeting location and to post the agenda at both the public body's principal office\nand the meeting location. Where, as here, the annual schedule of regular meetings listed a room\nwithin a different building as the meeting location, the absence of the meeting location from the\nagenda deprived the public of written notice of the meeting location. The Board' s explanation\nthat it had met in the West Campus building on previous occasions despite the notice to the\ncontrary on the annual schedule of regular meetings indicates that the Board should have updated\nits annual schedule of regular meetings sooner, not that the Board in fact provided notice of the\nnew location by holding meetings there before. This office asks the Board to update its annual\nschedule of regular meetings to reflect the true locations of Board meetings so that members of\nthe public have sufficient information to enable them to attend upcoming meetings.\n4Mason District Hospital Board of Directors, Board of Directors Meeting Dates for 2023\nundated).\n5Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois ( March 8, 2023), at 2.\n6E- mail from\n\nto [ Katie] Goldsmith ( March 16, 2023).\n\n\fMs. Danielle Costello\nJune 13, 2023\nPage 5\n\nConvenient and Open Meetings\nSection 2.01 of OMA (5 ILCS 120/ 2.01 (West 2020)) provides that \"[ a] ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" \" By its plain terms, section 2.01 requires a venue that is not\nonly 'open,' but 'convenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d\n352, 359 ( 4th Dist. 2003). In addressing the meaning of \"convenient\" for purposes of section\n2.01 of OMA, the Gerwin court stated that \"[ a] meeting can be open in the sense that no one is\nprohibited from attending it, but it can be held in such an ill-suited, unaccommodating,\nunadvantageous place that members of the public, as a practical matter, would be deterred from\nattending it.\" Gerwin, 345 Ill. App. 3d at 361.\nIn denying that the January 25, 2023, 7:00 a.m. Board meeting was held in an\ninconvenient manner, the Board asserted:\nT]he front doors to the Hospital do not open until 7:00 a.m. each\nmorning, as the front door is not staffed until this time and this is a\nsafety measure for the Hospital. This has been the case for a\nnumber of years. However, there is a side door to the Hospital\nthrough which individuals can be buzzed in, and individuals can\nalso enter the Hospital through the Emergency Department, which\nremains open 24 hours a day. The process for accessing the\nHospital prior to 7:00 a.m. has not changed in at least the last five\nyears.[ 7]\nIn their reply, the\npassed along\nexplanation that: \" I arrived at the main\ndoors of [the Hospital] before 7 am and found them locked. I walked to the east side of [the\nHospital] and was able to get in, but no one knew where the meeting was. I was then escorted to\nthe board room at [ the Hospital] which was empty. * * * Finally, I walked to the West Campus\nand found the meeting in progress.\" 8\nThis office has determined that merely holding a meeting in a locked area does\nviolate OMA, provided that measures are taken to ensure members of the public who wish to\nattend are able to do so. See Ill. Att'y Gen. PAC Req. Ltr. 17711, issued March 27, 2012\nmeeting not inaccessible to members of the public because they had to ask receptionist to grant\nthem access to a locked area of police station and be escorted to the meeting). In this instance,\n7Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois ( March 8, 2023), at 2.\n8E- mail from\n\nto [ Katie] Goldsmith ( March 16, 2023).\n\n\fMs. Danielle Costello\nJune 13, 2023\nPage 6\n\nmembers of the public seeking to attend the January 25, 2023, Board meeting could have gained\naccess to the main hospital building by being buzzed in a side door or entering through the\nEmergency Department.\nacknowledged that he was able to access the main\nhospital building sometime around the meeting start time.\nalso acknowledged that\nhe subsequently found the meeting in the West Campus building, but did not indicate how he\nwas able to locate the meeting. Under these circumstances, this office has not received facts\nfrom which we could conclude that the January 25, 2023, meeting was held in such an ill-suited,\nunaccommodating, or unadvantageous place that members of the public were deterred from\nattending it. As noted above, however, the lack of notice of the meeting location did impede\naccess to the meeting.\nThe Office of the Public Access Counselor is also charged with providing advice\nand education to both the public and public officials. See 15 ILCS 205/ 7(a), ( b), (c) ( West\n2020). In that capacity, this office notes that specifying the meeting room rather than just the\nmeeting building in its notices would help avoid confusion in the future, as would notifying\nHospital receptionists in advance where Board meetings will be held so that they may accurately\nguide the public.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nkatherine. goldsmith@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n75513 o 202 notice proper improper 201 location proper hosp\ncc:\n\nVia electronic mail\nMr. Bill Blessman\nChairman, Board of Directors\nMason District Hospital\n615 North Promenade Street\nP.O. Box 530\nHavana, Illinois 62644\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Meeting location notice on a hospital board agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75513/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 13, 2023\n\nVia electronic mail\n\nVia electronic mail\nMs. Danielle M. Costello\nHinshaw & Culbertson LLP\n100 Park Avenue\nP.O. Box 1389\nRockford, Illinois 61101\ndcostello@hinshawlaw. com\nRE: OMA Request for Review – 2023 PAC 75513\nDear\n\nand Ms. Costello:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau is unable to conclude that the Board of Directors (Board) of the Mason District Hospital\nHospital) did not make its January 25, 2023, meeting open and convenient to the public, but this\noffice asks the Board to more clearly notify the public of its meeting location(s).\nIn a Request for Review submitted on February 11, 2023,\nand\nalleged, in relevant part, that the agenda for the Board's January 25, 2023,\nregular meeting did not notify the public that the meeting location was somewhere other than the\nboardroom, and that the process for locating the meeting was unclear and overly difficult. In\nsupport of their allegations, the\nincluded a copy of the January 25, 2023, Board\nmeeting agenda that was posted to the Board's website, which did not specify the location of the\nmeeting. 1\n1 Mason District Hospital Board of Directors, Agenda Header (January 25, 2023).\n\nOn February 27, 2023, this office forwarded a copy of the\nRequest for\nReview to the Board and asked it to provide copies of the Board's annual schedule of meetings,\nas well as the notice and agenda for the January 25, 2023, meeting. Additionally, this office\nasked for an explanation about where the meeting was held and the information communicated to\nthe public about the meeting location. On March 8, 2023, counsel for the Board provided this\noffice with the requested materials and its written response. On March 9, 2023, this office\nforwarded a copy of the Board's response to the\nOn March 16, 2023, the\nreplied and incorporated a statement from\nanother member of the public\nwho stated that he attended the January 25, 2023, Board meeting.\nDETERMINATION\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nAs an initial matter, this office determined that further inquiry was warranted only\nto certain parts of the\nRequest for Review. In their Request for Review, the\nalso made broad allegations pertaining to the Board's review of executive session minutes,\nposting of meeting minutes, and posting of annual reports. Section 3.5(a) of OMA (5 ILCS\n120/ 3.5(a) (West 2020)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review * * * must include a summary of the facts\nsupporting the allegation. (Emphasis added.)\nThe\nallegation that the Board deferred its review of past closed session minutes during\nits January 25, 2023, meeting alone does not indicate that the Board violated OMA, absent facts\nindicating that the Board did not take up that matter as soon as practicable after six months had\ntranspired since the previous review. See 5 ILCS 120/ 2.06(d) (West 2021 Supp.) (\" Each public\nbody shall periodically meet to review minutes of all closed meetings. Meetings to review\nminutes shall occur every 6 months, or as soon thereafter as is practicable, taking into account\nthe nature and meeting schedule of the public body.\"). Additionally, the allegation that the\nBoard failed to post meeting minutes on its website was generalized, and, as discussed further\n\nbelow, the Board's attorney advised that the Board's webpage is not maintained by full-time staff\nof the public body. See 5 ILCS 120/ 2.06(b) (West 2021 Supp.) (\"[ A] public body that has a\nwebsite that the full-time staff of the public body maintains shall post the minutes of a regular\nmeeting of its governing body open to the public on the public body's website within 10 days\nafter the approval of the minutes by the public body.\" (Emphasis added.) Furthermore, OMA\ndoes not require that the Board post annual reports. Therefore, this office determined no further\naction was warranted as to these allegations in the\nRequest for Review.\nPosting of Meeting Location\nSection 2.02(a) of OMA (5 ILCS 120/ 2.02(a) (West 2020)) provides that \"[ e] very\npublic body shall give public notice of the schedule of regular meetings at the beginning of each\ncalendar or fiscal year and shall state the regular dates, times, and places of such meetings.\"\nEmphasis added.) Section 2.03 of OMA (5 ILCS 120/ 2.03 (West 2020)) similarly provides, in\nrelevant part: \" In addition to the notice required by Section 2.02, each body subject to this Act\nmust, at the beginning of each calendar year or fiscal year, prepare and make available a\nschedule of all its regular meeting for such calendar or fiscal year, listing the times and places of\nsuch meetings.\" (Emphasis added.) Section 2.02(a) also provides that \"[ a] n agenda for each\nregular meeting shall be posted at the principal office of the public body and at the location\nwhere the meeting is to be held at least 48 hours in advance of the holding of the meeting.\"\nSection 2.02(b) of OMA (5 ILCS 120/ 2.02(b) (West 2020)) adds that \" a public body that has a\nwebsite that the full-time staff of the public body maintains shall post notice on its website of\nall meetings of the governing body of the public body.\" (Emphasis added.)\nCounsel for the Board explained in response to this office's inquiry letter that the\nagenda was posted five full days before the January 25, 2023, Board meeting in two places at the\nHospital: \" one on a notice board across from the Business Office in the Hospital (where agendas\nare regularly posted), and a second copy on the entrance door to the West Campus building\nlocated on the Hospital's campus), which is the building in which the meeting would occur.\" 2\nThe Board stated that these agendas identified \" West Campus\" as the meeting location and\nenclosed a copy. 3 Additionally, the Board acknowledged that the agenda posted online did not\ninclude a meeting location, but explained that a part- time employee maintained the website.\n\n2 Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 8, 2023), at 1.\n3 Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 8, 2023), at 1.\n\nThe Board provided this office with its schedule of annual meetings, which listed the location of\nits Board meetings as \" the Administrative Conference Room.\" 4 The Board stated in its response\nto this office, though, that \" Board meetings have been regularly held in recent months at the\nWest Campus Main Area; this is not a new location utilized by the Board for the January 25\nmeeting.\" 5\nIn the\nRequest for Review, they alleged that the agenda posted online\ndid not give notice that the meeting was being moved from the boardroom to a room in a\nseparate building. In their reply, the\nincluded a statement from\nwho\nstated: \" The only meeting agenda that I saw did NOT mention the location.\" (Emphasis in\noriginal.) 6 It is unclear whether\nwas referring to the agenda posted online or the\nagendas posted at the Hospital. Regardless, neither the Request for Review nor the reply\ncontested whether the January 25, 2023, Board meeting agenda was posted at the meeting\nbuilding or online at least 48 hours in advance. The dispute is over whether the posted agenda(s)\nfor the January 25, 2023, Board meeting improperly omitted the specific meeting location.\nAs opposed to the annual schedule of regular meetings, OMA does not include a\nrequirement that a particular meeting agenda include the location of a meeting. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 50231, issued October 30, 2017, at 2 (\" The plain language of section\n2.02 of OMA[] does not require a public body to include the physical address of the location\nwhere the meeting will be held on its agenda or notice.\"). However, the absence of an express\nrequirement to include the meeting location of a regular meeting on the agenda must be\nunderstood in the context of the requirements to post an annual schedule of regular meetings that\nsets forth the meeting location and to post the agenda at both the public body's principal office\nand the meeting location. Where, as here, the annual schedule of regular meetings listed a room\nwithin a different building as the meeting location, the absence of the meeting location from the\nagenda deprived the public of written notice of the meeting location. The Board's explanation\nthat it had met in the West Campus building on previous occasions despite the notice to the\ncontrary on the annual schedule of regular meetings indicates that the Board should have updated\nits annual schedule of regular meetings sooner, not that the Board in fact provided notice of the\nnew location by holding meetings there before. This office asks the Board to update its annual\nschedule of regular meetings to reflect the true locations of Board meetings so that members of\nthe public have sufficient information to enable them to attend upcoming meetings.\n4 Mason District Hospital Board of Directors, Board of Directors Meeting Dates for 2023\nundated).\n5 Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 8, 2023), at 2.\n\nConvenient and Open Meetings\nSection 2.01 of OMA (5 ILCS 120/ 2.01 (West 2020)) provides that \"[ a] ll\nmeetings required by this Act to be public shall be held at specified times and places which are\nconvenient and open to the public.\" \" By its plain terms, section 2.01 requires a venue that is not\nonly 'open,' but 'convenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d\n352, 359 (4th Dist. 2003). In addressing the meaning of \"convenient\" for purposes of section\n2.01 of OMA, the Gerwin court stated that \"[ a] meeting can be open in the sense that no one is\nprohibited from attending it, but it can be held in such an ill-suited, unaccommodating,\nunadvantageous place that members of the public, as a practical matter, would be deterred from\nattending it.\" Gerwin, 345 Ill. App. 3d at 361.\nIn denying that the January 25, 2023, 7:00 a.m. Board meeting was held in an\ninconvenient manner, the Board asserted:\nT]he front doors to the Hospital do not open until 7:00 a.m. each\nmorning, as the front door is not staffed until this time and this is a\nsafety measure for the Hospital. This has been the case for a\nnumber of years. However, there is a side door to the Hospital\nthrough which individuals can be buzzed in, and individuals can\nalso enter the Hospital through the Emergency Department, which\nremains open 24 hours a day. The process for accessing the\nHospital prior to 7:00 a.m. has not changed in at least the last five\nyears.[ 7]\nIn their reply, the\npassed along\nexplanation that: \" I arrived at the main\ndoors of [the Hospital] before 7 am and found them locked. I walked to the east side of [the\nHospital] and was able to get in, but no one knew where the meeting was. I was then escorted to\nthe board room at [ the Hospital] which was empty. * * * Finally, I walked to the West Campus\nand found the meeting in progress.\" 8\nThis office has determined that merely holding a meeting in a locked area does\nviolate OMA, provided that measures are taken to ensure members of the public who wish to\nattend are able to do so. See Ill. Att'y Gen. PAC Req. Ltr. 17711, issued March 27, 2012\nmeeting not inaccessible to members of the public because they had to ask receptionist to grant\nthem access to a locked area of police station and be escorted to the meeting). In this instance,\n7 Letter from Danielle M. Costello, Hinshaw & Culbertson LLP, to [Katie] Goldsmith, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 8, 2023), at 2.\n\nmembers of the public seeking to attend the January 25, 2023, Board meeting could have gained\naccess to the main hospital building by being buzzed in a side door or entering through the\nEmergency Department.\nacknowledged that he was able to access the main\nhospital building sometime around the meeting start time.\nalso acknowledged that\nhe subsequently found the meeting in the West Campus building, but did not indicate how he\nwas able to locate the meeting. Under these circumstances, this office has not received facts\nfrom which we could conclude that the January 25, 2023, meeting was held in such an ill-suited,\nunaccommodating, or unadvantageous place that members of the public were deterred from\nattending it. As noted above, however, the lack of notice of the meeting location did impede\naccess to the meeting.\nThe Office of the Public Access Counselor is also charged with providing advice\nand education to both the public and public officials. See 15 ILCS 205/ 7(a), (b), (c) (West\n2020). In that capacity, this office notes that specifying the meeting room rather than just the\nmeeting building in its notices would help avoid confusion in the future, as would notifying\nHospital receptionists in advance where Board meetings will be held so that they may accurately\nguide the public.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nkatherine. goldsmith@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n75513 o 202 notice proper improper 201 location proper hosp\ncc:\n\nVia electronic mail\nMr. Bill Blessman\nChairman, Board of Directors\nMason District Hospital\n615 North Promenade Street\nP.O. Box 530\nHavana, Illinois 62644"}
{"id":1412,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-11-08","case_number":null,"request_numbers":["75844"],"title":"Gail Borden Library Board violated OMA by taking final action on unlisted agenda item","filename":"75844, issued November 8, 2023.pdf","rel_path":null,"word_count":1275,"summary":"The PAC investigated an allegation that the Gail Borden Public Library District Board of Trustees took final action to appoint a trustee without including the item on the meeting agenda. The PAC determined that the Board violated the Open Meetings Act by failing to provide sufficient advance notice of the action.","plain_summary":"A citizen complained that a library board appointed a new trustee during a meeting without listing that appointment on the meeting agenda. The Attorney General's office found that the board violated the Open Meetings Act because the public was not given proper notice of the action. Because the trustee has already been elected, no further action can be taken to fix the mistake, but the board was warned to follow agenda rules in the future.","holding":"The Board of Trustees of the Gail Borden Public Library District violated section 2.02(c) of the Open Meetings Act by taking final action on an item not listed on the meeting agenda.","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by taking final action on a matter not included on the meeting agenda.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Gail Borden Public Library District Board of Trustees","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The board appointed a new trustee during a meeting without providing advance notice of that specific action on the meeting agenda.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/75844, issued November 8, 2023.pdf","sha256":"e77b249da91eb603bac901fbe4ad318d284cde02bb107c8af8ef9cd36790e1ea","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","Open Meetings Act","library board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 8, 2023\n\nVia electronic mail\nMr. W. Britton Isaly\nAncel Glink\n140 South Dearborn Street – Suite 600\nChicago, Illinois 60603\nbisaly@ancelglink. com\nRE: OMA Request for Review – 2023 PAC 75844\nDear Mr. Isaly and\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Trustees ( Board) of the Gail Borden Public Library District violated\nthe Open Meetings Act 1 ( OMA) in connection with its January 10, 2023, meeting.\nIn his Request for Review,\nalleges that the Board voted to\nappoint a trustee at its January 10, 2023, meeting without providing advance notice of that action\non the meeting agenda. On March 21, 2023, and April 28, 2023, the Public Access Bureau sent\ncopies of the Request for Review to the Board and asked it to provide copies of the agenda and\nminutes of the Board' s January 10, 2023, meeting along with a written response to the allegation\nin the Request for Review. On May 8, 2023, counsel for the Board furnished those materials.\nOn May 12, 2023, this office sent a copy of the written response to\nhe did not reply.\n\n15 ILCS 120/ 1 et seq. ( West 2020).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. W. Britton Isaly\nNovember 8, 2023\nPage 2\n\nDETERMINATION\nSection 3.5(a) of OMA\nAs a threshold matter, section 3.5(a) of OMA provides, in pertinent part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If\nfacts concerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. ( Emphasis added.)\nThe Board' s response to this office asserted that this office is precluded from reviewing whether\nthe Board violated OMA because\nRequest for Review was untimely. Specifically,\nthe Board noted that\nattended the January 10, 2023, meeting, but did not file his\nRequest for Review until March 11, 2023; the Board contended that the 60- day deadline for\nfiling the Request for Review was March 10, 2023.\nThe calculation of the 60-day period is governed by section 1.11 of the Statute on\nStatutes ( 5 ILCS 70/1.11 ( West 2022)):\nThe time within which any act provided by law is to be\ndone shall be computed by excluding the first day and including\nthe last, unless the last day is Saturday or Sunday or is a\nholiday as defined or fixed in any statute now or hereafter in\nforce in this State, and then it shall also be excluded. If the day\nsucceeding such Saturday, Sunday or holiday is also a holiday or a\nSaturday or Sunday then such succeeding day shall also be\nexcluded. ( Emphasis added.)\nThe 60-day period began running the day after the meeting in question, January 11, 2023, and\nthe last day, Saturday March 11, 2023, as well as Sunday March 12, 2023, are excluded. The\nstatutory deadline for filing the Request for Review, therefore, expired on March 13, 2023.\n\n\fMr. W. Britton Isaly\nNovember 8, 2023\nPage 3\n\nBecause\nRequest for Review is dated and postmarked 2 March 11, 2023, his\nsubmission is timely and section 3.5(a) authorizes this office to review his allegation that the\nBoard violated OMA.\nSection 2.02(a) of OMA\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989). Section 1 of OMA 3 \" declares it to be the public policy of this State that its\ncitizens shall be given advance notice of and the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in any way.\" Section 2.02(c) of OMA (5\nILCS 120/ 2.02(c) ( West 2022)) provides that \"[ a] ny agenda required under this Section shall set\nforth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" ( Emphasis added.)\nThe Board' s response to this office did not substantively dispute that the Board\nappointed a trustee at its January 10, 2023, meeting without providing advance notice of that\nfinal action, but also stated that the Board did not concede it violated OMA. Instead, the Board\nasserted that the allegation in the Request for Review is now moot because the appointed\ntrustee' s election to the Board on April 4, 2023, \" forecloses any prospective relief regarding her\nappointment in January.\" 4\nThis office has reviewed the agenda and minutes of the Board' s January 10, 2023,\nmeeting. The minutes indicate that a trustee stated two members of the Board had reviewed\napplications to fill a vacancy on the Board and recommended Ms. Elisa Lara. The minutes state\nthat the Board then approved a motion to administer the oath of office to Ms. Lara. The agenda\nincludes an item that states \" Oath of Office Administered\" 5 but does not identify any position or\ncontain any reference to the Board appointing a trustee. That agenda item is too vague to\nprovide advance notice of the general subject matter of the Board' s final action on the\nappointment of a trustee to fill a vacancy. Accordingly, this office concludes that the Board\n2Pursuant to section 1.25 of the Statute on Statutes ( 5 ILCS 70/1.25 (West 2022)), a writing sent\nby United States mail is deemed to be filed on the date of the postmark unless a statute specifically provides\notherwise.\n35 ILCS 120/ 1 (West 2022).\n4Letter from W. Britt Isaly, Ancel Glink, P.C., to Steven Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General, State of Illinois ( May 8, 2023), at 2.\n5Gail Borden Public Library Board of Trustees, Meeting, Agenda Item No. 2 (January 10, 2023).\n\n\fMr. W. Britton Isaly\nNovember 8, 2023\nPage 4\n\nviolated section 2.02(c) of OMA. Because Trustee Lara was subsequently elected to serve as a\ntrustee, there is no action the Board can take at this time to remedy its violation. This office\ncautions the Board to ensure that its future agendas provide sufficient advance notice of final\nactions in accordance with section 2.02(c) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814-6756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n75844 o 202 improper lib\ncc:\n\nThe Honorable Jean Bednar\nPresident\nGail Borden Public Library District\n270 North Grove Avenue\nElgin, Illinois 60120\njbednar@gailborden. info\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A library board's appointment of a trustee not on the agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75844/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 8, 2023\n\nVia electronic mail\nMr. W. Britton Isaly\nAncel Glink\n140 South Dearborn Street – Suite 600\nChicago, Illinois 60603\nbisaly@ancelglink. com\nRE: OMA Request for Review – 2023 PAC 75844\nDear Mr. Isaly and\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Board of Trustees (Board) of the Gail Borden Public Library District violated\nthe Open Meetings Act 1 (OMA) in connection with its January 10, 2023, meeting.\nIn his Request for Review,\nalleges that the Board voted to\nappoint a trustee at its January 10, 2023, meeting without providing advance notice of that action\non the meeting agenda. On March 21, 2023, and April 28, 2023, the Public Access Bureau sent\ncopies of the Request for Review to the Board and asked it to provide copies of the agenda and\nminutes of the Board's January 10, 2023, meeting along with a written response to the allegation\nin the Request for Review. On May 8, 2023, counsel for the Board furnished those materials.\nOn May 12, 2023, this office sent a copy of the written response to\nhe did not reply.\n\n15 ILCS 120/ 1 et seq. (West 2020).\n\nDETERMINATION\nSection 3.5(a) of OMA\nAs a threshold matter, section 3.5(a) of OMA provides, in pertinent part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If\nfacts concerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation. (Emphasis added.)\nThe Board's response to this office asserted that this office is precluded from reviewing whether\nthe Board violated OMA because\nRequest for Review was untimely. Specifically,\nthe Board noted that\nattended the January 10, 2023, meeting, but did not file his\nRequest for Review until March 11, 2023; the Board contended that the 60- day deadline for\nfiling the Request for Review was March 10, 2023.\nThe calculation of the 60-day period is governed by section 1.11 of the Statute on\nStatutes (5 ILCS 70/1.11 (West 2022)):\nThe time within which any act provided by law is to be\ndone shall be computed by excluding the first day and including\nthe last, unless the last day is Saturday or Sunday or is a\nholiday as defined or fixed in any statute now or hereafter in\nforce in this State, and then it shall also be excluded. If the day\nsucceeding such Saturday, Sunday or holiday is also a holiday or a\nSaturday or Sunday then such succeeding day shall also be\nexcluded. (Emphasis added.)\nThe 60-day period began running the day after the meeting in question, January 11, 2023, and\nthe last day, Saturday March 11, 2023, as well as Sunday March 12, 2023, are excluded. The\nstatutory deadline for filing the Request for Review, therefore, expired on March 13, 2023.\n\nBecause\nRequest for Review is dated and postmarked 2 March 11, 2023, his\nsubmission is timely and section 3.5(a) authorizes this office to review his allegation that the\nBoard violated OMA.\nSection 2.02(a) of OMA\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 1 of OMA 3 \" declares it to be the public policy of this State that its\ncitizens shall be given advance notice of and the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in any way.\" Section 2.02(c) of OMA (5\nILCS 120/ 2.02(c) (West 2022)) provides that \"[ a] ny agenda required under this Section shall set\nforth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" (Emphasis added.)\nThe Board's response to this office did not substantively dispute that the Board\nappointed a trustee at its January 10, 2023, meeting without providing advance notice of that\nfinal action, but also stated that the Board did not concede it violated OMA. Instead, the Board\nasserted that the allegation in the Request for Review is now moot because the appointed\ntrustee's election to the Board on April 4, 2023, \" forecloses any prospective relief regarding her\nappointment in January.\" 4\nThis office has reviewed the agenda and minutes of the Board's January 10, 2023,\nmeeting. The minutes indicate that a trustee stated two members of the Board had reviewed\napplications to fill a vacancy on the Board and recommended Ms. Elisa Lara. The minutes state\nthat the Board then approved a motion to administer the oath of office to Ms. Lara. The agenda\nincludes an item that states \" Oath of Office Administered\" 5 but does not identify any position or\ncontain any reference to the Board appointing a trustee. That agenda item is too vague to\nprovide advance notice of the general subject matter of the Board's final action on the\nappointment of a trustee to fill a vacancy. Accordingly, this office concludes that the Board\n2 Pursuant to section 1.25 of the Statute on Statutes (5 ILCS 70/1.25 (West 2022)), a writing sent\nby United States mail is deemed to be filed on the date of the postmark unless a statute specifically provides\notherwise.\n35 ILCS 120/ 1 (West 2022).\n4 Letter from W. Britt Isaly, Ancel Glink, P.C., to Steven Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General, State of Illinois (May 8, 2023), at 2.\n5 Gail Borden Public Library Board of Trustees, Meeting, Agenda Item No. 2 (January 10, 2023).\n\nviolated section 2.02(c) of OMA. Because Trustee Lara was subsequently elected to serve as a\ntrustee, there is no action the Board can take at this time to remedy its violation. This office\ncautions the Board to ensure that its future agendas provide sufficient advance notice of final\nactions in accordance with section 2.02(c) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814-6756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n75844 o 202 improper lib\ncc:\n\nThe Honorable Jean Bednar\nPresident\nGail Borden Public Library District\n270 North Grove Avenue\nElgin, Illinois 60120\njbednar@gailborden. info"}
{"id":1413,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-11-19","case_number":null,"request_numbers":["75965"],"title":"Stevenson High School District 125 board town hall not a meeting under OMA","filename":"75965, issued November 19, 2024.pdf","rel_path":null,"word_count":2217,"summary":"A requester alleged that the Adlai E. Stevenson High School District 125 Board of Education held an improper private meeting via Zoom under the guise of a campaign town hall; the PAC closed the matter without a finding of a violation.","plain_summary":"A citizen alleged that the Board of Education of Stevenson High School District 125 held an improper private meeting on March 16, 2023, during a Zoom town hall event attended by five board members. The Illinois Attorney General's Public Access Bureau issued a formal determination under section 3.5(e) of the Open Meetings Act, finding that the gathering did not constitute a 'meeting' under OMA because the board members did not deliberate among themselves or gather information as a preliminary step to decision-making. The case was closed with that determination.","holding":"The gathering did not violate the Open Meetings Act because it was not a 'meeting' as defined by the Act.","legal_question":"Whether a campaign town hall event attended by a quorum of the Board of Education constituted a 'meeting' under the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education, Adlai E. Stevenson High School District 125","requesting_party":null,"pac_outcome":"Closed without further action","pac_law_type":null,"subject_category":"meeting definition","subject_description":"The complaint concerned whether a campaign town hall event attended by a quorum of board members violated the Open Meetings Act.","ocr_status":"llm_reocr","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/75965, issued November 19, 2024.pdf","sha256":"acb1f34bcb4f44652757bcb756b12f0d2d0e4034d1f7c51f67f8823c3ef20681","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","quorum","school board","town hall","public business"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nNovember 19, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Steven Frost\nPresident, Board of Education\nAdlai E. Stevenson High School District 125\n2 Stevenson Drive\nLincolnshire, Illinois 60069\nsfrost@d 125.org\nRE: OMA Request for Review - 2023 PAC 75965\nDear-and Mr. Frost:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nIn his Request for Review, submitted March 22, 2023,\nalleged\nthat the Board of Education (Board) of Stevenson High School D�School District)\nheld an improper private meeting on March 16, 2023, via Zoom. - stated that this\nmeeting was advertised as a Town Hall and that the invitation described it as an opportunity for\nthe public to \"meet Steveson (sic) School Board members to discuss/ask your kids priority\nprograms at Stevenson.\" 1 - also stated the meeting included five members of the\nBoard and provided a copy of the Zoom meeting access information and screenshots of the five\nBoard members in attendance.\nOn April 6, 2023, this office forwarded a copy of the Request for Review to the\nBoard and asked that it provide this office with copies of any notices, agendas, minutes, and\n1\n\nE-mail from\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nto Public Access (March 22, 2023).\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAnomeyGeneral.gov\n\n\fThe Honorable Steven Frost\nNovember 19, 2024\nPage 2\nrecordings from its March 16, 2023, gathering for this office's confidential review. This office\nalso asked the Board to respond in writing to the allegation that the gathering constituted an\nimproper private meeting,explaining the extent to which the Board discussed the transaction of\npublic business. On April 12, 2023, the Board submitted a written response and advised that it\ndoes not possess an agenda, notes, or any recordings from this gathering. On April 18, 2023,this\noffice forwarded a copy of the Board's response to-; he replied on April 24, 2023.\nDETERMINATION\n\"It is the public policy of this State that public bodies exist to aid in the conduct of\nthe people's business and that the people have a right to be informed as to the conduct of their\nbusiness.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that public agencies\nexist to aid in the conduct of the people's business and that the intent of the Act is to assure that\nagency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\"\nas defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business\nor, for a 5-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business\n(Emphasis added).\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals ofIllinois v.\nStukel, 344 Ill. App. 3d 856,868 (2003) (acknowledging that OMA is not \"triggered every time\npublic officials meet and converse\"). The Illinois Supreme Court has advised that OMA \"is not\nintended to prohibit bona fide social gatherings of public officials, or truly political meetings at\nwhich party business is discussed. Rather, the Act is designed to prohibit secret deliberation and\naction on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). A gathering\ndoes not constitute a meeting for purposes of OMA when there is \"no examining or weighing of\nreasons for or against a course of action,[and] no exchange of facts preliminary to a decision[.]\"\nNabhani v. Coglianese, 552F. Supp. 657,661 (N.D. Ill. 1982). Accordingly, the Public Access\nBureau has determined that private social and political gatherings of the members of a public\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Steven Frost\nNovember 19, 2024\nPage 3\nbody do not violate the openness requirements of OMA, as long as the members of the public\nbody do not deliberate about public business. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr.\n13792, issued July 6, 2011, at 2 (attendance of school board members at campai gn -related social\ngathering was not a meeting subject to OMA).\nOn the other hand, the requirements of OMA do apply to \"meetings designed to\ndiscuss or reach an accord with regard to public business which properly should be deliberated or\nacted upon in an open forum.\" Difanis, 83 Ill. 2d at 210 (1980). Additionally, a public body\nmay hold a meeting by discussing and exchanging facts as a preliminary step to formulating\naction. See Nabhani, 552 F. Supp. at 660-61. In a binding opinion, the Attorney General\nconcluded that a gathering in which a majority of a quorum of a library board held a \"Meet and\nGreet\" where \"staff members presented questions and concerns about substantive library issues\"\nmet the definition of a meeting under OMA. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued\nMarch 14, 2023, at 6-7. Notably, the library board president repeatedly stated that a video\nrecording of the gathering would be shared with all library board members so that the staffs\nquestions and concerns could be addressed by the Board as a whole, which demonstrated that the\nlibrary board members who attended had engaged in the collective inquiry phase of deliberations\nby gathering and exchanging information on issues of library business. Ill. Att'y Gen. Pub. Acc.\nOp. No. 23-003, at 7.\nAccording to the School District's website, the full Board consists of seven\nmembers: the president, vice-president, secretary, and four trustees. 2 Four Board members\nconstitute a quorum, and three members constitute a majority of a quorum. Therefore, if three\nmembers of the Board engaged in deliberative discussions of public business on March 16, 2023,\nthat gathering would be subject to all the requirements of OMA. Those requirements include\nproper posting of notice and an agenda (5 ILCS 120/2.02 (West 2022)), holding the meeting at a\nspecified time and place that is convenient and open to the public (5 ILCS 120/2.01 (West\n2022)), keeping minutes (5 ILCS 120/2.06(a) (West 2022)), and allowing public comment (5\nILCS 120/2.06(g) (West 2022)).\nIn its response to this office, the Board acknowledged that five Board members\nattended the March 16, 2023, gathering, but it denied that the gathering constituted a \"meeting\"\nunder OMA. The Board argued the March 16, 2023, gathering was a campaign event organized\nby Board President Steven Frost and the President of the Lake County Indians Association to\nintroduce the Indian American community to four incumbent candidates who were up for\nreelection in the April 4, 2023, election. The Board asserted that the event was hosted by Mr.\nFrost using his personal, paid subscription to Zoom and that following the event , the Lake\nCounty Indians Association endorsed the four candidates. Mr. Frost described the contents of\nthe Zoom call as following:\nBoard ofEducati on, Stevens on High S ch ool Distri ct 125, https://www.dl 25.orglabout/board-of­\neducati on (last visited June 6, 2023).\n2\n\nOffice of the Illinois Attorney General\n\n\f-enFrost\nNovember 19, 2024\nPage 4\nThe call began with each of the four candidates introducing\nthemselves, explaining their backgrounds, and telling the\nparticipants why they were each running for the District 125\nBoard. I then explained that I was President of the Board and that I\nsupported all four incumbents for re-election. I emphasized that\nwe work together well and the importance of our collaboration in\nhaving an effective school board.\nAt that point, we opened the event for questions from community\nparticipants. I recall questions regarding three broad topics: 1)\nsafety measures in the school, 2) a building referendum for District\n102 and District 125 finances, and 3) the special education needs\nof one specific family's child.\nIn response to several questions from community\nparticipants, the candidates explained various aspects of current\nschool safety measures. One of the candidates explained that a\nschool safety committee in the school meets frequently. Another\ncandidate explained how the school coordinates with the Village of\nLincolnshire police department. Other candidates explained how\nthe school has two school resource officers that are actual\nuniformed police officers* * * Another discussed how the school's\nwellness initiative is critical to safety. [3 l\nThe Board distinguished this gathering from the circumstances set forth in Binding Opinion 23003 by contending that its members were not gathering input for purposes of informing future\nBoard actions and that their responses were directed to the attendee asking the question rather\nthan each other. While the four trustees answered questions and responded to concerns raised by\nmembers of the public about school issues, the Board argued that the trustees did not \"engage in\ndiscussions amongst themselves\" or \"solicit information or exchange facts preliminary to future\"\nSchool District decisions. 4\nIn his reply,\ndisputed the Board's depiction of the March 16, 2023,\ngathering as a campaign event.\nargued that this gathering met the plain text\nrequirements for a meeting under OMA because a majority of the quorum of Board members\ncame together, and the members discussed matters of public business, such as the District's\nLetterfromSteveFrostto Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 2.\n3\n\nLetterfromSteveFrost to Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 3.\n4\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Steven Frost\nNovember 19, 2024\nPage 5\nbudget. - analogized this gathering to the meet-and-greet event at issue in Binding\nOpinion�d argued:\nMr. Frost did not attend the meeting as a candidate, nor as part of a\n\"slate.\" Mr. Frost and Ms. Ben-Yoseph did not offer tours of the\nschool facility as candidates, as this could only be offered in their\nofficial capacity as Board Members. Mr. Frost and others did not\ndiscuss the budget (past, present, and future) and taxes as members\nof a \"slate\" or as candidates, these questions were addressed as\n\"We\" the school board.[5l\nIt is undisputed that at least four members of the Board attended and participated\nin the March 16, 2023, Zoom call. According to the Board's own description of the Zoom call,\nall four trustees addressed substantive topics, including current school safety measures, a\nbuilding referendum, and school district finances.6 There is no indication, however, that the\ndiscussion involved Board members deliberating amongst themselves for the purpose of reaching\na consensus or gathering information as a preliminary step in a decision-making process. Unlike\nthe circumstances in Binding Opinion 23-003, where the meet-and-greet was designed to gather\ninformation about staff members' concerns so they could be addressed by the public body in the\nfuture, a flier for the Zoom call tha\nsubmitted with his Request for Review\nadvertised the event as a meet-and-greet for constituents with four Board members who had been\nendorsed for re-election by the Daily Herald. The available information indicates that four\nmembers of the Board participated in the Zoom call to campaign for re-election as a unified bloc\nwith the support of the Board president. The fact that the Board members were incumbents did\nnot preclude them from attending in a political capacity. In this context, the Board members\nappear to have communicated their views to the public to promote their candidacies rather than\nto conduct deliberations of public business as a Board. The endorsement by the Lake County\nIndians Association that followed the Zoom call further reflects the political character of the\ngathering. Because such a campaign event does not constitute a \"meeting\" of a public body, this\noffice is unable to conclude that the March 16, 2023, Zoom call violated OMA.\nDespite that conclusion, this office notes that gatherings of at least a majority of a\nquorum of a public body outside of a meeting held in compliance with OMA may create a\nperception of impropriety when topics of public business are discussed. There also is the\npotential for a campaign event to develop into a \"meeting\" if deliberative discussions\nunexpectedly break out in the process of candidates presenting their existing views. Therefore,\n\n5\n\nLetter from\n\no [Christina] Lucente-McCullough (undated), at [2].\n\nLetter from Steve Frost to Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 3.\n6\n\nOffice of the Illinois Attorney General\n\n\f-en Frost\nNovember 19, 2024\nPage 6\nthis office recommends that the Board exercise caution and be mindful of the requirements and\nspirit of OMA before considering whether to hold similar campaign events in the future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov.\nVery truly yours,\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n75965 o 2a meeting proper sd\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nNovember 19, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Steven Frost\nPresident, Board of Education\nAdlai E. Stevenson High School District 125\n2 Stevenson Drive\nLincolnshire, Illinois 60069\nsfrost@d 125.org\nRE: OMA Request for Review - 2023 PAC 75965\nDear-and Mr. Frost:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nIn his Request for Review, submitted March 22, 2023,\nalleged\nthat the Board of Education (Board) of Stevenson High School D�School District)\nheld an improper private meeting on March 16, 2023, via Zoom. - stated that this\nmeeting was advertised as a Town Hall and that the invitation described it as an opportunity for\nthe public to \"meet Steveson (sic) School Board members to discuss/ask your kids priority\nprograms at Stevenson.\" 1 - also stated the meeting included five members of the\nBoard and provided a copy of the Zoom meeting access information and screenshots of the five\nBoard members in attendance.\nOn April 6, 2023, this office forwarded a copy of the Request for Review to the\nBoard and asked that it provide this office with copies of any notices, agendas, minutes, and\n1\n\nE-mail from\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nto Public Access (March 22, 2023).\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nrecordings from its March 16, 2023, gathering for this office's confidential review. This office\nalso asked the Board to respond in writing to the allegation that the gathering constituted an\nimproper private meeting,explaining the extent to which the Board discussed the transaction of\npublic business. On April 12, 2023, the Board submitted a written response and advised that it\ndoes not possess an agenda, notes, or any recordings from this gathering. On April 18, 2023,this\noffice forwarded a copy of the Board's response to-; he replied on April 24, 2023.\nDETERMINATION\n\"It is the public policy of this State that public bodies exist to aid in the conduct of\nthe people's business and that the people have a right to be informed as to the conduct of their\nbusiness.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that public agencies\nexist to aid in the conduct of the people's business and that the intent of the Act is to assure that\nagency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\"\nas defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business\nor, for a 5-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business\n(Emphasis added).\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals ofIllinois v.\nStukel, 344 Ill. App. 3d 856,868 (2003) (acknowledging that OMA is not \"triggered every time\npublic officials meet and converse\"). The Illinois Supreme Court has advised that OMA \"is not\nintended to prohibit bona fide social gatherings of public officials, or truly political meetings at\nwhich party business is discussed. Rather, the Act is designed to prohibit secret deliberation and\naction on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). A gathering\ndoes not constitute a meeting for purposes of OMA when there is \"no examining or weighing of\nreasons for or against a course of action,[and] no exchange of facts preliminary to a decision[.]\"\nNabhani v. Coglianese, 552F. Supp. 657,661 (N.D. Ill. 1982). Accordingly, the Public Access\nBureau has determined that private social and political gatherings of the members of a public\n\nbody do not violate the openness requirements of OMA, as long as the members of the public\nbody do not deliberate about public business. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr.\n13792, issued July 6, 2011, at 2 (attendance of school board members at campai gn -related social\ngathering was not a meeting subject to OMA).\nOn the other hand, the requirements of OMA do apply to \"meetings designed to\ndiscuss or reach an accord with regard to public business which properly should be deliberated or\nacted upon in an open forum.\" Difanis, 83 Ill. 2d at 210 (1980). Additionally, a public body\nmay hold a meeting by discussing and exchanging facts as a preliminary step to formulating\naction. See Nabhani, 552 F. Supp. at 660-61. In a binding opinion, the Attorney General\nconcluded that a gathering in which a majority of a quorum of a library board held a \"Meet and\nGreet\" where \"staff members presented questions and concerns about substantive library issues\"\nmet the definition of a meeting under OMA. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued\nMarch 14, 2023, at 6-7. Notably, the library board president repeatedly stated that a video\nrecording of the gathering would be shared with all library board members so that the staffs\nquestions and concerns could be addressed by the Board as a whole, which demonstrated that the\nlibrary board members who attended had engaged in the collective inquiry phase of deliberations\nby gathering and exchanging information on issues of library business. Ill. Att'y Gen. Pub. Acc.\nOp. No. 23-003, at 7.\nAccording to the School District's website, the full Board consists of seven\nmembers: the president, vice-president, secretary, and four trustees. 2 Four Board members\nconstitute a quorum, and three members constitute a majority of a quorum. Therefore, if three\nmembers of the Board engaged in deliberative discussions of public business on March 16, 2023,\nthat gathering would be subject to all the requirements of OMA. Those requirements include\nproper posting of notice and an agenda (5 ILCS 120/2.02 (West 2022)), holding the meeting at a\nspecified time and place that is convenient and open to the public (5 ILCS 120/2.01 (West\n2022)), keeping minutes (5 ILCS 120/2.06(a) (West 2022)), and allowing public comment (5\nILCS 120/2.06(g) (West 2022)).\nIn its response to this office, the Board acknowledged that five Board members\nattended the March 16, 2023, gathering, but it denied that the gathering constituted a \"meeting\"\nunder OMA. The Board argued the March 16, 2023, gathering was a campaign event organized\nby Board President Steven Frost and the President of the Lake County Indians Association to\nintroduce the Indian American community to four incumbent candidates who were up for\nreelection in the April 4, 2023, election. The Board asserted that the event was hosted by Mr.\nFrost using his personal, paid subscription to Zoom and that following the event, the Lake\nCounty Indians Association endorsed the four candidates. Mr. Frost described the contents of\nthe Zoom call as following:\nBoard ofEducati on, Stevens on High S ch ool Distri ct 125, https://www.dl 25.orglabout/board-of­\n\nThe call began with each of the four candidates introducing\nthemselves, explaining their backgrounds, and telling the\nparticipants why they were each running for the District 125\nBoard. I then explained that I was President of the Board and that I\nsupported all four incumbents for re-election. I emphasized that\nwe work together well and the importance of our collaboration in\nhaving an effective school board.\nAt that point, we opened the event for questions from community\nparticipants. I recall questions regarding three broad topics: 1)\nsafety measures in the school, 2) a building referendum for District\n102 and District 125 finances, and 3) the special education needs\nof one specific family's child.\nIn response to several questions from community\nparticipants, the candidates explained various aspects of current\nschool safety measures. One of the candidates explained that a\nschool safety committee in the school meets frequently. Another\ncandidate explained how the school coordinates with the Village of\nLincolnshire police department. Other candidates explained how\nthe school has two school resource officers that are actual\nuniformed police officers* * * Another discussed how the school's\nwellness initiative is critical to safety. [3 l\nThe Board distinguished this gathering from the circumstances set forth in Binding Opinion 23003 by contending that its members were not gathering input for purposes of informing future\nBoard actions and that their responses were directed to the attendee asking the question rather\nthan each other. While the four trustees answered questions and responded to concerns raised by\nmembers of the public about school issues, the Board argued that the trustees did not \"engage in\ndiscussions amongst themselves\" or \"solicit information or exchange facts preliminary to future\"\nSchool District decisions. 4\nIn his reply,\ndisputed the Board's depiction of the March 16, 2023,\ngathering as a campaign event.\nargued that this gathering met the plain text\nrequirements for a meeting under OMA because a majority of the quorum of Board members\ncame together, and the members discussed matters of public business, such as the District's\nLetterfromSteveFrostto Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 2.\n\nbudget. - analogized this gathering to the meet-and-greet event at issue in Binding\nOpinion�d argued:\nMr. Frost did not attend the meeting as a candidate, nor as part of a\n\"slate.\" Mr. Frost and Ms. Ben-Yoseph did not offer tours of the\nschool facility as candidates, as this could only be offered in their\nofficial capacity as Board Members. Mr. Frost and others did not\ndiscuss the budget (past, present, and future) and taxes as members\nof a \"slate\" or as candidates, these questions were addressed as\n\"We\" the school board.[5l\nIt is undisputed that at least four members of the Board attended and participated\nin the March 16, 2023, Zoom call. According to the Board's own description of the Zoom call,\nall four trustees addressed substantive topics, including current school safety measures, a\nbuilding referendum, and school district finances.6 There is no indication, however, that the\ndiscussion involved Board members deliberating amongst themselves for the purpose of reaching\na consensus or gathering information as a preliminary step in a decision-making process. Unlike\nthe circumstances in Binding Opinion 23-003, where the meet-and-greet was designed to gather\ninformation about staff members' concerns so they could be addressed by the public body in the\nfuture, a flier for the Zoom call tha\nsubmitted with his Request for Review\nadvertised the event as a meet-and-greet for constituents with four Board members who had been\nendorsed for re-election by the Daily Herald. The available information indicates that four\nmembers of the Board participated in the Zoom call to campaign for re-election as a unified bloc\nwith the support of the Board president. The fact that the Board members were incumbents did\nnot preclude them from attending in a political capacity. In this context, the Board members\nappear to have communicated their views to the public to promote their candidacies rather than\nto conduct deliberations of public business as a Board. The endorsement by the Lake County\nIndians Association that followed the Zoom call further reflects the political character of the\ngathering. Because such a campaign event does not constitute a \"meeting\" of a public body, this\noffice is unable to conclude that the March 16, 2023, Zoom call violated OMA.\nDespite that conclusion, this office notes that gatherings of at least a majority of a\nquorum of a public body outside of a meeting held in compliance with OMA may create a\nperception of impropriety when topics of public business are discussed. There also is the\npotential for a campaign event to develop into a \"meeting\" if deliberative discussions\nunexpectedly break out in the process of candidates presenting their existing views. Therefore,\n\n5\n\nLetter from\n\no [Christina] Lucente-McCullough (undated), at [2].\n\nLetter from Steve Frost to Christina Lucente-McCullough, Assistant Attorney General, Public\n\nthis office recommends that the Board exercise caution and be mindful of the requirements and\nspirit of OMA before considering whether to hold similar campaign events in the future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov.\nVery truly yours,\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n75965 o 2a meeting proper sd\n\nOffice of the Illinois Attorney General","plain_summary_pre_resummarize":null,"card_headline":"A campaign town hall attended by a school board quorum","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75965/","full_text":"KWAME RAOUL\nATTORNEY GENERAL\n\nNovember 19, 2024\n\nVia electronic mail\n[REDACTED]\n\nVia electronic mail\nThe Honorable Steven Frost\nPresident, Board of Education\nAdlai E. Stevenson High School District 125\n2 Stevenson Drive\nLincolnshire, Illinois 60069\nsfrost@d125.org\n\nRE: OMA Request for Review – 2023 PAC 75965\n\nDear [REDACTED] and Mr. Frost:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\n\nIn his Request for Review, submitted March 22, 2023, [REDACTED] alleged\nthat the Board of Education (Board) of Stevenson High School District 125 (School District)\nheld an improper private meeting on March 16, 2023, via Zoom. [REDACTED] stated that this\nmeeting was advertised as a Town Hall and that the invitation described it as an opportunity for\nthe public to \"meet Steveson (sic) School Board members to discuss/ask your kids priority\nprograms at Stevenson.\"1 [REDACTED] also stated the meeting included five members of the\nBoard and provided a copy of the Zoom meeting access information and screenshots of the five\nBoard members in attendance.\n\nOn April 6, 2023, this office forwarded a copy of the Request for Review to the\nBoard and asked that it provide this office with copies of any notices, agendas, minutes, and\n\n1 E-mail from [REDACTED] to Public Access (March 22, 2023).\n\nThe Honorable Steven Frost\nNovember 19, 2024\nPage 2\nrecordings from its March 16, 2023, gathering for this office's confidential review. This office\nalso asked the Board to respond in writing to the allegation that the gathering constituted an\nimproper private meeting, explaining the extent to which the Board discussed the transaction of\npublic business. On April 12, 2023, the Board submitted a written response and advised that it\ndoes not possess an agenda, notes, or any recordings from this gathering. On April 18, 2023, this\noffice forwarded a copy of the Board's response to [REDACTED]; he replied on April 24, 2023.\nDETERMINATION\n\"It is the public policy of this State that public bodies exist to aid in the conduct of\nthe people's business and that the people have a right to be informed as to the conduct of their\nbusiness.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that public agencies\nexist to aid in the conduct of the people's business and that the intent of the Act is to assure that\nagency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\"\nas defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business\nor, for a 5-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business\n(Emphasis added).\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (2003) (acknowledging that OMA is not \"triggered every time\npublic officials meet and converse\"). The Illinois Supreme Court has advised that OMA \"is not\nintended to prohibit bona fide social gatherings of public officials, or truly political meetings at\nwhich party business is discussed. Rather, the Act is designed to prohibit secret deliberation and\naction on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). A gathering\ndoes not constitute a meeting for purposes of OMA when there is \"no examining or weighing of\nreasons for or against a course of action, [and] no exchange of facts preliminary to a decision[.]\"\nNabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D.Ill. 1982). Accordingly, the Public Access\nBureau has determined that private social and political gatherings of the members of a public\n\nThe Honorable Steven Frost\nNovember 19, 2024\nPage 3\nbody do not violate the openness requirements of OMA, as long as the members of the public\nbody do not deliberate about public business. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr.\n13792, issued July 6, 2011, at 2 (attendance of school board members at campaign-related social\ngathering was not a meeting subject to OMA).\n\nOn the other hand, the requirements of OMA do apply to \"meetings designed to\ndiscuss or reach an accord with regard to public business which properly should be deliberated or\nacted upon in an open forum.\" Difanis, 83 Ill. 2d at 210 (1980). Additionally, a public body\nmay hold a meeting by discussing and exchanging facts as a preliminary step to formulating\naction. See Nabhani, 552 F. Supp. at 660–61. In a binding opinion, the Attorney General\nconcluded that a gathering in which a majority of a quorum of a library board held a \"Meet and\nGreet\" where \"staff members presented questions and concerns about substantive library issues\"\nmet the definition of a meeting under OMA. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued\nMarch 14, 2023, at 6–7. Notably, the library board president repeatedly stated that a video\nrecording of the gathering would be shared with all library board members so that the staff's\nquestions and concerns could be addressed by the Board as a whole, which demonstrated that the\nlibrary board members who attended had engaged in the collective inquiry phase of deliberations\nby gathering and exchanging information on issues of library business. Ill. Att'y Gen. Pub. Acc.\nOp. No. 23-003, at 7.\n\nAccording to the School District's website, the full Board consists of seven\nmembers: the president, vice-president, secretary, and four trustees.2 Four Board members\nconstitute a quorum, and three members constitute a majority of a quorum. Therefore, if three\nmembers of the Board engaged in deliberative discussions of public business on March 16, 2023,\nthat gathering would be subject to all the requirements of OMA. Those requirements include\nproper posting of notice and an agenda (5 ILCS 120/2.02 (West 2022)), holding the meeting at a\nspecified time and place that is convenient and open to the public (5 ILCS 120/2.01 (West\n2022)), keeping minutes (5 ILCS 120/2.06(a) (West 2022)), and allowing public comment (5\nILCS 120/2.06(g) (West 2022)).\n\nIn its response to this office, the Board acknowledged that five Board members\nattended the March 16, 2023, gathering, but it denied that the gathering constituted a \"meeting\"\nunder OMA. The Board argued the March 16, 2023, gathering was a campaign event organized\nby Board President Steven Frost and the President of the Lake County Indians Association to\nintroduce the Indian American community to four incumbent candidates who were up for\nreelection in the April 4, 2023, election. The Board asserted that the event was hosted by Mr.\nFrost using his personal, paid subscription to Zoom and that following the event, the Lake\nCounty Indians Association endorsed the four candidates. Mr. Frost described the contents of\nthe Zoom call as following:\n\n2Board of Education, Stevenson High School District 125, https://www.d125.org/about/board-of-\neducation (last visited June 6, 2023).\n\nOffice of the Illinois Attorney General\n\n[REDACTED]\nThe Honorable Steven Frost\nNovember 19, 2024\nPage 4\n\nThe call began with each of the four candidates introducing\nthemselves, explaining their backgrounds, and telling the\nparticipants why they were each running for the District 125\nBoard. I then explained that I was President of the Board and that I\nsupported all four incumbents for re-election. I emphasized that\nwe work together well and the importance of our collaboration in\nhaving an effective school board.\n\nAt that point, we opened the event for questions from community\nparticipants. I recall questions regarding three broad topics: 1)\nsafety measures in the school, 2) a building referendum for District\n102 and District 125 finances, and 3) the special education needs\nof one specific family's child.\n\nIn response to several questions from community\nparticipants, the candidates explained various aspects of current\nschool safety measures. One of the candidates explained that a\nschool safety committee in the school meets frequently. Another\ncandidate explained how the school coordinates with the Village of\nLincolnshire police department. Other candidates explained how\nthe school has two school resource officers that are actual\nuniformed police officers * * * Another discussed how the school's\nwellness initiative is critical to safety. [3]\n\nThe Board distinguished this gathering from the circumstances set forth in Binding Opinion 23-\n003 by contending that its members were not gathering input for purposes of informing future\nBoard actions and that their responses were directed to the attendee asking the question rather\nthan each other. While the four trustees answered questions and responded to concerns raised by\nmembers of the public about school issues, the Board argued that the trustees did not \"engage in\ndiscussions amongst themselves\" or \"solicit information or exchange facts preliminary to future\"\nSchool District decisions.4\n\nIn his reply, [REDACTED] disputed the Board's depiction of the March 16, 2023,\ngathering as a campaign event. [REDACTED] argued that this gathering met the plain text\nrequirements for a meeting under OMA because a majority of the quorum of Board members\ncame together, and the members discussed matters of public business, such as the District's\n\n3Letter from Steve Frost to Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 2.\n\n4Letter from Steve Frost to Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 3.\n\nOffice of the Illinois Attorney General\n\nThe Honorable Steven Frost\nNovember 19, 2024\nPage 5\nbudget. [REDACTED] analogized this gathering to the meet-and-greet event at issue in Binding\nOpinion 23-003 and argued:\n\nMr. Frost did not attend the meeting as a candidate, nor as part of a\n\"slate.\" Mr. Frost and Ms. Ben-Yoseph did not offer tours of the\nschool facility as candidates, as this could only be offered in their\nofficial capacity as Board Members. Mr. Frost and others did not\ndiscuss the budget (past, present, and future) and taxes as members\nof a \"slate\" or as candidates, these questions were addressed as\n\"We\" the school board.[5]\n\nIt is undisputed that at least four members of the Board attended and participated\nin the March 16, 2023, Zoom call. According to the Board's own description of the Zoom call,\nall four trustees addressed substantive topics, including current school safety measures, a\nbuilding referendum, and school district finances.6 There is no indication, however, that the\ndiscussion involved Board members deliberating amongst themselves for the purpose of reaching\na consensus or gathering information as a preliminary step in a decision-making process. Unlike\nthe circumstances in Binding Opinion 23-003, where the meet-and-greet was designed to gather\ninformation about staff members' concerns so they could be addressed by the public body in the\nfuture, a flier for the Zoom call that [REDACTED] submitted with his Request for Review\nadvertised the event as a meet-and-greet for constituents with four Board members who had been\nendorsed for re-election by the Daily Herald. The available information indicates that four\nmembers of the Board participated in the Zoom call to campaign for re-election as a unified bloc\nwith the support of the Board president. The fact that the Board members were incumbents did\nnot preclude them from attending in a political capacity. In this context, the Board members\nappear to have communicated their views to the public to promote their candidacies rather than\nto conduct deliberations of public business as a Board. The endorsement by the Lake County\nIndians Association that followed the Zoom call further reflects the political character of the\ngathering. Because such a campaign event does not constitute a \"meeting\" of a public body, this\noffice is unable to conclude that the March 16, 2023, Zoom call violated OMA.\n\nDespite that conclusion, this office notes that gatherings of at least a majority of a\nquorum of a public body outside of a meeting held in compliance with OMA may create a\nperception of impropriety when topics of public business are discussed. There also is the\npotential for a campaign event to develop into a \"meeting\" if deliberative discussions\nunexpectedly break out in the process of candidates presenting their existing views. Therefore,\n\n5Letter from [REDACTED] to [Christina] Lucente-McCullough (undated), at [2].\n6Letter from Steve Frost to Christina Lucente-McCullough, Assistant Attorney General, Public\nAccess Bureau, Illinois Attorney General's Office (April 12, 2023), at 3.\n\nOffice of the Illinois Attorney General\n\n[REDACTED]\nThe Honorable Steven Frost\nNovember 19, 2024\nPage 6\n\nthis office recommends that the Board exercise caution and be mindful of the requirements and\nspirit of OMA before considering whether to hold similar campaign events in the future.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov.\n\nVery truly yours,\n\n[REDACTED]\n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n75965 o 2a meeting proper sd"}
{"id":1414,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-04-21","case_number":null,"request_numbers":["76015"],"title":"Sangamon Valley Water Board did not violate OMA by not explicitly stating final action on contract","filename":"76015, issued April 21, 2023.pdf","rel_path":null,"word_count":801,"summary":"The requester alleged that the Sangamon Valley Public Water District Board of Trustees violated the Open Meetings Act by failing to specify on its agenda that it intended to take final action on a contract. The PAC determined that the agenda provided sufficient notice of the general subject matter as required by law.","plain_summary":"A citizen complained that a local water district board voted on a contract without properly warning the public on the meeting agenda that a vote would occur. The Attorney General's office reviewed the agenda and concluded that the board provided enough information to satisfy the law. This means the board's action was legally sufficient, and no further action will be taken.","holding":"The Board did not violate the Open Meetings Act because the agenda sufficiently described the general subject matter of the contract, even without explicitly stating that final action would be taken.","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by failing to explicitly state on an agenda that it intends to take final action on a contract.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Sangamon Valley Public Water District Board of Trustees","requesting_party":"Mr. John Bambenek","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of an agenda item regarding the approval of a contract by a public water district board.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/76015, issued April 21, 2023.pdf","sha256":"c4ed9d5cf426b8d50a193216e22d97217df7c7afac4d2059795c9fe4a4d68ddb","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","voting","water district"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 21, 2023\n\nVia electronic mail\nMr. John Bambenek\n\njohn@mahometleaks.com\nRE: OMA Request for Review – 2023 PAC 76015\nDear Mr. Bambenek:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) ( West 2020)). For the reasons explained below, this office has\n\ndetermined that no further action is warranted as to this matter.\nOn March 27, 2023, you submitted the above-referenced Request for Review\nalleging that the Sangamon Valley Public Water District Board of Trustees ( Board) violated\n\nOMA at its March 27, 2023, meeting by voting to approve a contract listed on the agenda but\nfailing to indicate that it would take action on the item. This office construes your Request for\n\nReview as alleging a violation of section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2020)).\nYou provided this office with the meeting agenda and a link to a video of the meeting.\nSection 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\"\n\nand that the submission \" must include a summary\n\nof the facts supporting the allegation.\" Section 2.02(c) of OMA provides, in pertinent part:\nAny agenda required under this Section shall set forth the general subject matter of any\n\nresolution or ordinance that will be the subject of final action at the meeting.\" ( Emphasis added.)\nThe Public Access Bureau has determined that \" the General Assembly' s use of the term ' general\n\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 (determining that agenda item\n\nappointment of the city administrator\" adequately described the general subject matter of public\nbody' s final action to approve a five- year employment contract for the city administrator).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fr.John Bambenek\n\nApril 21, 2023\nPage 2\n\nAdditionally, the Public Access Bureau has determined that the language of section 2.02(c) of\nOMA \" requires a public body' s agenda to identify the general subject matter of final action – not\n\nwhat particular action will be taken by a public body.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39177,\nissued February 2, 2016, at 3- 4 (determining that agenda item \" Illinois Rt. 53/ 120 Project\n\nEnvironmental Impact Statement\" did not violate section 2.02(c) of OMA because by inclusion\non the agenda, it could be inferred that the Board anticipated taking final action on the matter).\nThe agenda for the Board' s March 27, 2023, meeting includes \" Veolia Operation,\n\nMaintenance, Management Contract,\" but does not specify the action to be taken on that item. 1\nThe item was listed under the \" Business\" 2 section of the agenda, which does not indicate or infer\n\nthat the Board would merely receive information or discuss the matter without taking action.\nThis office' s review of the recording you provided confirms that the Board voted to pursue\n\nnegotiations on the specified contract. The agenda item describes the main elements of the item\nthat the Board voted on. Although the Board could have better informed the public by providing\n\nadditional information regarding its planned course of action on the contract, OMA does not\nrequire a public body to provide advance notice of the specific type of action it will take after\n\ndeliberating. Because the Board provided sufficient advance notice of the general subject matter\nof the item it acted upon in accordance with section 2.02( c) of OMA, this office has determined\n\nthat no further action is warranted as to this matter.\nIf you have any questions, you may contact me at benjamin. silver@ilag. gov. This\n\nletter serves to close this matter.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n76015 o no fi war spd\n\n1Sangamon Valley Public Water District, Agenda Item 4.C (March 27, 2023).\n2Sangamon Valley Public Water District, Agenda Item 4 (March 27, 2023).\n\n\fMr. John Bambenek\n\nApril 21, 2023\nPage 3\n\ncc:\n\nVia electronic mail\nThe Honorable Meghan Hennesy\n\nChairman\nSangamon Valley Public Water District\n\n709 North Prairieview Road\nMahomet, Illinois 61853\n\nmhennesy@svpwd.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An agenda item for a contract approval","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76015/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 21, 2023\n\nVia electronic mail\nMr. John Bambenek\n\njohn@mahometleaks.com\nRE: OMA Request for Review – 2023 PAC 76015\nDear Mr. Bambenek:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons explained below, this office has\n\ndetermined that no further action is warranted as to this matter.\nOn March 27, 2023, you submitted the above-referenced Request for Review\nalleging that the Sangamon Valley Public Water District Board of Trustees (Board) violated\n\nOMA at its March 27, 2023, meeting by voting to approve a contract listed on the agenda but\nfailing to indicate that it would take action on the item. This office construes your Request for\n\nReview as alleging a violation of section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2020)).\nYou provided this office with the meeting agenda and a link to a video of the meeting.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor[,]\"\n\nand that the submission \" must include a summary\n\nof the facts supporting the allegation.\" Section 2.02(c) of OMA provides, in pertinent part:\nAny agenda required under this Section shall set forth the general subject matter of any\n\nresolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.)\nThe Public Access Bureau has determined that \" the General Assembly's use of the term ' general\n\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 (determining that agenda item\n\nappointment of the city administrator\" adequately described the general subject matter of public\nbody's final action to approve a five- year employment contract for the city administrator).\n\nAdditionally, the Public Access Bureau has determined that the language of section 2.02(c) of\nOMA \" requires a public body's agenda to identify the general subject matter of final action – not\n\nwhat particular action will be taken by a public body.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39177,\nissued February 2, 2016, at 3- 4 (determining that agenda item \" Illinois Rt. 53/ 120 Project\n\nEnvironmental Impact Statement\" did not violate section 2.02(c) of OMA because by inclusion\non the agenda, it could be inferred that the Board anticipated taking final action on the matter).\nThe agenda for the Board's March 27, 2023, meeting includes \" Veolia Operation,\n\nMaintenance, Management Contract,\" but does not specify the action to be taken on that item. 1\nThe item was listed under the \" Business\" 2 section of the agenda, which does not indicate or infer\n\nthat the Board would merely receive information or discuss the matter without taking action.\nThis office's review of the recording you provided confirms that the Board voted to pursue\n\nnegotiations on the specified contract. The agenda item describes the main elements of the item\nthat the Board voted on. Although the Board could have better informed the public by providing\n\nadditional information regarding its planned course of action on the contract, OMA does not\nrequire a public body to provide advance notice of the specific type of action it will take after\n\ndeliberating. Because the Board provided sufficient advance notice of the general subject matter\nof the item it acted upon in accordance with section 2.02(c) of OMA, this office has determined\n\nthat no further action is warranted as to this matter.\nIf you have any questions, you may contact me at benjamin. silver@ilag. gov. This\n\nletter serves to close this matter.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\ncc:\n\nVia electronic mail\nThe Honorable Meghan Hennesy\n\nChairman\nSangamon Valley Public Water District\n\n709 North Prairieview Road\nMahomet, Illinois 61853\n\nmhennesy@svpwd.com"}
{"id":1415,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-07-20","case_number":null,"request_numbers":["76232"],"title":"School Board District 211 did not violate OMA by discussing pending tax appeal in closed session","filename":"76232, issued July 20, 2023.pdf","rel_path":null,"word_count":4031,"summary":"A School Board member alleged that the Board of Education of Township High School District 211 violated the Open Meetings Act by discussing a property tax appeal in a closed session. The PAC determined that the discussion was permissible under the litigation exception.","plain_summary":"A school board member complained that their board improperly held a private meeting to discuss a property tax appeal. The Attorney General's office reviewed the case and found that the board was legally allowed to discuss the matter in private because it involved pending litigation. Therefore, no violation of the Open Meetings Act occurred.","holding":"The School Board did not violate the Open Meetings Act because the discussion of the pending property tax appeal fell within the litigation exception of section 2(c)(11).","legal_question":"Whether a public body may discuss a pending property tax appeal before an administrative tribunal in a closed session under the litigation exception of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2(c)(11)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(11)"],"public_body":"Board of Education of Township High School District 211","requesting_party":"a member of the School Board","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The discussion of a property tax appeal pending before the Cook County Board of Review during a closed session.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_11/76232, issued July 20, 2023.pdf","sha256":"0a1e9defd804fee31e87173c0498fe4f3aa0ea8e2c221d81ee79695791d15c4e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","litigation exception","school board","property tax appeal"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 20, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Brian P. Crowley\nFranczek P.C.\n\n[street address redacted for site publication -- see original PDF]\nbpc@franczek.com\nRE: OMA Request for Review – 2023 PAC 76232\nDear\n\nand Mr. Crowley:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons discussed below, this office concludes\n\nthat the Board of Education (School Board) of Township High School District 211 (District 211)\ndid not violate OMA at its April 13, 2023, meeting when it discussed in closed session a property\n\ntax appeal pending with the Cook County Board of Review (Board of Review).\nBACKGROUND\nOn April 13, 2023,\n\na member of the School Board,\n\nsubmitted a Request for Review to the Public Access Bureau alleging that the School Board\n\nviolated OMA during its April 13, 2023, meeting by improperly discussing in closed session a\nproperty tax appeal pending with the Board of Review.\n\nstated the School\n\nBoard discussed that appeal under the exception in section 2(c)(11) of OMA (5 ILCS\n120/ 2(c)( 11) ( West 2022)) that permits public bodies to enter closed session to discuss\n\nl]itigation, when an action against, affecting or on behalf of the particular public body has been\nfiled and is pending before a court or administrative tribunal, or when the public body finds that\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 2\n\nan action is probable or imminent, in which case the basis for the finding shall be recorded and\nentered into the minutes of the closed meeting.\"\n\nHe asked this office to review ( 1) whether the\n\nBoard of Review is an administrative tribunal; (2) whether the discussion was appropriate when\nDistrict 211 is not the particular body whose action is pending with the Board of Review; and ( 3)\n\nwhether the Board was permitted to enter closed session in the absence of probable or imminent\nlitigation.\nOn May 11, 2023, the Public Access Bureau forwarded a copy of the Request for\n\nReview to Ms. Anna Klimkowicz, as President of the School Board. The Public Access Bureau\nalso sent President Klimkowicz a letter asking the School Board to provide a written response to\n\nthe allegations in\n\nRequest for Review, along with copies of the agenda, open\n\nand closed session minutes, and a verbatim recording of the closed session portion of the School\n\nBoard's April 13, 2023, meeting, for this office's confidential review. On May 26, 2023, counsel\nfor the School Board provided the Public Access Bureau with the requested agenda and minutes\n\nand a written response to the Request for Review; he subsequently provided the verbatim\nrecording of the closed session. On June 7, 2023, the Public Access Bureau forwarded the\n\nSchool Board's written response to\n\nOn June 12, 2023,\n\nsubmitted his reply. On June 15, 2023, the School Board provided the Public Access Bureau a\n\nsupplement to its response, which this office forwarded to\n\non June 16, 2023.1\n\nHe did not submit an additional reply.\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Section 2(a) of OMA\n5 ILCS 120/ 2(a) ( West 2022)) provides that \"[ a] ll meetings of public bodies shall be open to the\n\npublic unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such\nexceptions \" are in derogation of the requirement that public bodies meet in the open, and\n\ntherefore, the exceptions are to be strictly construed, extending only to subjects clearly within\ntheir scope.\" 5 ILCS 120/ 2(b) ( West 2022).\nAs discussed above, section 2(c)( 11) of OMA permits a public body to enter into\n\nclosed session to discuss: \" Litigation, when an action against, affecting or on behalf of the\nparticular public body has been filed and is pending before a court or administrative tribunal,\n\nor when the public body finds that an action is probable or imminent, in which case the basis for\nthe finding shall be recorded and entered into the minutes of the closed meeting.\" ( Emphasis\n\nadded.)\n1Letter from Letter from Edie Steinberg, Senior Assistant Attorney General, Public Access\nBureau, Office of the Attorney General, to\nJune 16, 2023).\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 3\n\nIn its response to this office, the School Board provided the following\n\nbackground:\nThe property tax matter currently pending with the Board\nof Review involves a dispute between a taxpayer, Churchill\n\nDowns, Inc., through its subsidiary Arlington Park Racecourse,\nLLC (\" CDI\"), and three local school districts— District 211,\n\nCommunity Consolidated School District 15 (\"CCSD 15\"), and\nTownship High School District 214 (\" District 214\") ( together, the\n\nDistricts\")— regarding the 2022 tax year assessment by the Cook\nCounty Assessor' s Office of a 309- acre property located in\n\nArlington Heights. This property (\"Subject Property\"), commonly\nknown as the Arlington Park Racecourse, is located at 2200 W.\n\nEuclid Ave., Arlington Heights, and identified by Property Index\nNumbers (\" PINs\") 02- 23- 403- 003, 02- 24- 303- 007, 02- 25- 100-\n\n005, 02-25-202-008, and 02-26-201-010, which fall within the\nboundaries of all three Districts.\nFor the 2022 tax year, the Cook County Assessor' s Office\n\nincreased the assessment on the Subject Property from $8,370,955\nto $49,250, 001. This increase in assessed value corresponds to an\n\nincrease in the market value of the property from $33,483,820 in\n2021 to $197, 000, 004 in 2022. CDI notified the Districts through\n\nthis law firm, Franczek P.C., that it would be taking advantage of\nthe provisions in the Illinois Property Tax Code that allow a\n\ntaxpayer who is dissatisfied with an assessment to appeal the Cook\nCounty Assessor' s decision to the Board of Review. 35 ILCS 200/\n\n16-115. * * *\nThe assessment of the Subject Property for the 2022 tax\nyear that is certified by the Board of Review will be used by the\n\nCook County Clerk and Treasurer to calculate the tax rates of the\nDistricts and the tax bills for the five PINs. The projected increase\n\nin CDI's property tax bill from just the three Districts resulting\nfrom the assessment increase by the Assessor' s Office would be\n\n8.1 million. The distribution of the tax burden on the Districts'\nother taxpayers would be correspondingly reduced. Projected\n\nproperty tax refunds from the Districts in the event CDI\nsuccessfully appealed its assessment to PTAB or Circuit Court\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 4\n\nafter payment of its taxes are $208,000 for District 211, $3 million\nfor District 214, and $ 4.7 million for CCSD 15.\nOn November 11, 2022, this law firm notified the three\n\nDistricts of the taxpayer's intent to appeal the assessment to the\nBoard of Review. Shortly thereafter, the three Districts agreed to\n\nmove forward collectively as a unified group with a single\nstrategy. The Districts agreed to equally divide the cost of an\n\nindependent appraisal of the Subject Property, and on January 10,\n2023, representatives from all three Districts toured the property\n\nwith their appraiser.\nBy the March 9, 2023, deadline, both CDI and CCSD 15\nfiled complaints appealing the 2022 tax assessment.\n\nBoard of\n\nReview complaints are filed based on PINs. A single complaint by\nCCSD 15 was filed because three of the PINs pertaining to the\n\nDistricts' appeal are located in District 211; two of the PINs are\nlocated in District 214; and all five PINs are located in CCSD 15.\n\nRather than filing three distinct complaints to be\nconsolidated under a single docket number, which would have\n\ncaused unnecessary complication, a single complaint covering all\nthe PINs was filed naming CCSD 15 for administrative\n\nconvenience only. All three Districts, however, will experience the\nsame results from the assessment appeal, regardless of the\n\noutcome. All three Districts' interests are aligned, and the Board of\nReview decision will affect each one. The complaint is currently\n\npending before the Board of Review.\nBy the March 23, 2023, deadline, both CDI and the\nDistricts filed evidence and legal briefs in support of their\n\ncomplaints. CDI submitted an appraisal by Urban Real Estate\nResearch, Inc. concluding a market value for the Subject Property\n\nof $37,230,000 as of January 1, 2022. * * * The Districts\nsubmitted an appraisal by MaRous & Company concluding a\n\nmarket value for the Subject Property of $150 million as of\nJanuary 1, 2022. A hearing at which the expert appraisal witnesses\n\nwill be presented and the legal arguments addressed by counsel for\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 5\n\nCDI and the Districts is currently anticipated to take place during\nthe first week of June 2023.\nThe three Districts agreed to equally divide the attorney' s\n\nfees for the Board of Review appeal. All attorney-client\ncommunications regarding the Board of Review appeal are sent to\n\nall three Districts simultaneously. Franczek P.C., as the attorney\nfor the Districts, sends a single email to all three Districts with\n\nlegal advice; all telephone conferences between the Districts and\ntheir attorneys include representatives of all three Districts; and all\n\nthree Districts receive the same information in all communications.\nThe three Districts agreed that all three Districts must approve any\n\nsettlement with the taxpayer, and that the Districts must\nunanimously approve any decision regarding legal strategy.[ 2]\ns reply to the School Board' s response did not dispute these\n\nfacts. However, he contended, for the first time, that the School Board executed an \" agreement\nfor intervention and attorney engagement\" during the April 13, 2023, closed session. He also\n\nappears to assert that the attorney offered to represent the School Board in a closed session and\nproceeded to undertake representation without the School Board taking action on the\n\nrepresentation in open session. Although those allegations are beyond the scope of what\nasked this office to review in his April 13, 2023, submission, there is no indication\n\nfrom the Public Access Bureau's review of the closed session recording and minutes that such an\noffer was made or that such an agreement was executed. As explained in the School Board' s\n\nresponse to this office, the complaint by Community Consolidated School District 15 relating to\nthe Arlington International Racecourse assessment matter in front of the Board of Review had\n\nalready been filed, and evidence and legal briefs had been submitted to the Board of Review well\nbefore the School Board' s April 13, 2023, meeting. 3\n\n2Letter from Brian P. Crowley, Franczek P.C., to Edie Steinberg, Senior Assistant Attorney\nGeneral, Public Access Bureau, [ Office of the Attorney General] ( May 26, 2023), at 2 -3.\n3In addition, the School Board has informed this office that prior to the time of the April 13, 2023,\nmeeting, District 211's Superintendent authorized the Franczek law firm to serve District 211's interests in the\nmatter, through joint representation of District 211, District 214 , and District 15, pursuant to District 211's board\npolicy, which provides, in pertinent part, that \"[ a]n attorney(s) shall be selected annually by the Board of Education\nto serve as the legal advisor(s) to the Board of Education and the Superintendent. The attorney(s) shall perform only\nsuch services as requested by the Superintendent or designee, or the Board of Education, through the Board\nPresident or designee, and not at the bequest of any individual Board member.\" District 211 Board Policy, Section\nB: School Board Governance and Operations, Title: School District Legal Counsel (adopted July 18, 2002). E-mail\nfrom Brian P. Crowley to Edie Steinberg, [ Senior Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General] ( July 11, 2023).\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 6\n\nAdministrative Tribunal\nFirst, in his Request for Review,\n\nasked this office to review\n\nwhether the Board of Review is an \" administrative tribunal\" for purposes of section 2(c)(11) of\nOMA. The primary objective when construing the meaning of a statute is to ascertain and give\n\neffect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).\nThe most reliable indicator of legislative intent is the statutory language, given its plain and\n\nordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012 IL\n110012, ¶ 56, 969 N.E.2d 359, 372 ( 2012). OMA does not define \" administrative tribunal.\"\n\nAccordingly, the term is defined in accordance with its ordinary and commonly understood\nmeaning, and must be given its full meaning, not the narrowest meaning of which it is\n\nsusceptible. Lake County Board of Review v. Property Tax Appeal Board. of State of Ill., 119 Ill.\n2d 419, 423, ( 1988).\nBlack' s Law Dictionary defines an \" administrative tribunal\" as \"[ a] court- like\n\ndecision-making authority that resolves disputes, * * *; an administrative agency exercising a\nquasi- judiciary function.\" Black' s Law Dictionary, 1814 ( 11th ed. 2019). In turn Black' s Law\n\nDictionary defines \"quasi-judicial\" as \"[ o]f, relating to, or involving an executive or\nadministrative official' s adjudicative act. Quasi- judicial acts * * *\n\nare subject to review by\n\ncourts.\" Black's Law Dictionary 1501 (11th ed. 2019). Similarly, section 2(d) of OMA (5 ILCS\n120/ 2(d) ( West 2022)) defines \" Quasi- adjudicative body\" as \" an administrative body charged by\n\nlaw or ordinance with the responsibility to conduct hearings, receive evidence or testimony and\nmake determinations based thereon.\"\n\nTaken together, it is clear that an administrative tribunal\n\nconsists of an administrative body before which a matter or dispute may be heard or tried, as\ndistinguished from a judicial forum.\nAccording to the United States Census Bureau, in 2020 Cook County had a\n\npopulation of 5,275,541.4 A board of review in counties with 3,000,000 or more inhabitants\nshall, on written complaint of any taxpayer or any taxing district that has an interest in the\n\nassessment that any property is overassessed, underassessed, or exempt, review the assessment\nand confirm, revise, correct, alter, or modify the assessment, as appears to be just[.]\"\n\n35 ILCS\n\n200/16-95(1) (West 2022). If a taxpayer or taxing district submits a complaint to a board of\nreview, notice procedures must be complied with, and the board of review holds hearings, and\n\nissues orders pertaining to assessments, which are appealable. 35 ILCS 200/16-115, 125, 160\nWest 2022). Consistent with these statutory provisions, the Board of Review describes itself as\n\n4United States Census Bureau, Illinois 2020 Census, https:// www.census.gov/library/stories/stateby-state/illinois-population-change-between-census-decade.html (last visited July 8, 2023).\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 7\n\na \" quasi-judicial body, consisting of three co-equal elected commissioners, which 'sits as an\nappellate tribunal', inferior to the circuit [ courts]. It has the power to review and correct\n\nvaluations made by the Cook County Assessor.\" 5 Courts have described the Board of Review in\na similar manner. See e.g., Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281,\n\n295 (2010) (\" the general rule is that a taxpayer is limited to first exhausting administrative\nremedies provided by statute beginning with the Board of Review- the remedy at law for an\n\nincorrect assessment-- before seeking relief in the circuit court.\").\nIn his reply to the School Board's response,\n\nappears to assert\n\nthat the Board of Review should not be considered an \" administrative tribunal\" because that term\n\nis undefined in OMA and the terms that the Board of Review uses to describe itself––\"quasijudicial body\" and \" appellate tribunal\"–– also are undefined by the Act. 6 He further asserts that\n\nu]tilizing Black's Law Dictionary departs from the strict construction framed in the Open\nMeetings Act language.\" 7 To the contrary, \" it is entirely appropriate to employ a dictionary to\n\nascertain the plain and ordinary meaning of\" terms that a statute does not define. People v.\n\nhttps://plus.lexis.com/\nDavison, 233 Ill. 2d 30, 40 ( 2009). The features of the Board of Review set forth above are\napi/document/collection/\nconsistent with the definition of \"administrative tribunal\" as \" an administrative agency exercising\ncases/id/4W04-X9W0a quasi- judiciary function.\" Black' s Law Dictionary 1814 ( 11th ed. 2019). Accordingly, this\nTXFS-P270-00000-00?\noffice concludes that the Board of Review constitutes an administrative tribunal for purposes of\nsection 2(c)( 11) of OMA.\npage=40&reporter=3131\n&cite=233%20Ill.%202d\nAffecting the District\n%\n2030&context=1530671\nSection 2(c)(11) of OMA permits a public body to enter into closed session to\n\ndiscuss \" an action against, affecting or on behalf of the particular public body\" that has been\nfiled and is pending before a court or an administrative tribunal. ( Emphasis added.) In its\n\nresponse to this office, the School Board asserted that the matter pending before the Board of\nReview and discussed by the School Board at the April 13, 2023, meeting directly impacts and\n\naffects District 211. The School Board explained that \"[ t]he assessment of property within each\nDistrict, as determined by the Board of Review, will affect the District's property tax rate and\nrevenue. * * *\n\nAs a result, all three Districts are aggressively pursuing this action as the outcome\n\n5Cook County Illinois Board of Review, Legal Background,\nhttps:// www.cookcountyboardofreview. com/legal-background ( last visited July 8, 2023).\n6E- mail from\nto Edie Steinberg, [ Senior Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General] ( June 12, 2023).\n7E- mail from\nto Edie Steinberg, [ Senior Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General] ( June 12, 2023).\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 8\n\nof the litigation will directly affect the Districts' primary revenue source: property tax dollars.\" 8\nhas not provided any information that the matter pending at the Board of\n\nReview would not affect District 211. Rather,\n\nappears to assert in his reply\n\nthat the School Board' s closed session discussion was improper because District 211 is not the\n\nparticular body whose action is pending with the Board of Review. He then asserts that the\nSchool Board did not take action in open session to hire an attorney to represent its interests in\n\nthe Board of Review proceeding, which is not relevant to whether that matter is an action\naffecting\" the Board under section 2(c)( 11) of OMA.\nLegislative intent is best evidenced by the language used in a statute, and if the\n\nstatutory language is clear and unambiguous, it must be given effect as written. Blum v. Koster,\n235 Ill. 2d. 21, 29 ( 2009). A reviewing body may not read into the unambiguous language of a\n\nstatute exceptions, limitations or conditions that the General Assembly did not express. Kraft,\nInc. v. Edgar, 138 Ill. 2d 178, 189 ( 1990).\nThe clear and unambiguous language of section 2(c)( 11) of OMA does not require\n\nthe public body to be the party whose action is pending with an administrative tribunal in order\nto discuss a pending matter in closed session. Rather, section 2(c)( 11) of OMA plainly permits a\n\npublic body to enter closed session to discuss litigation when an action \"affecting\" the public\nbody has been filed and is pending before an \" administrative tribunal,\" as well as when a pending\n\naction is against or on behalf of the public body. \"Affect\" is defined as \"[ t]o produce an effect\non[.]\"\n\nBlack' s Law Dictionary 70 ( 11th ed. 2019). Because the outcome of the matter pending\n\nbefore the Board of Review will substantially impact the amount of property tax revenue District\n211 receives, that pending litigation is an action \" affecting\" the School Board within the scope of\n\nsection 2(c)(11) of OMA.\nProbable or Imminent\nalso asked this office to review the Board entering closed\n\nsession to discuss the property tax appeal currently pending with the Board of Review in the\nabsence of probable or imminent litigation. The plain language of section 2(c)( 11) of OMA\n\npermits a public body to enter closed session to discuss litigation under two separate\ncircumstances: ( 1) \" when an action against, affecting or on behalf of the particular public body\n\nhas been filed and is pending before a court or administrative tribunal,\" or (2) \"when the public\nbody finds that an action is probable or imminent[.]\"\n\nAccordingly, a public body is not limited\n\nto discussing probable or imminent litigation under section 2(c)(11). The exception also\n\n8Letter from Brian P. Crowley, Franczek, to Edie Steinberg, Senior Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] ( May 26, 2023), at 5.\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 9\n\nauthorizes closed session discussions of litigation that has been filed and is pending before a\ncourt or an administrative tribunal.\nBecause the Arlington International Racecourse assessment appeal directly affects\n\nDistrict 211 and had been filed and was pending before the Board of Review, an administrative\ntribunal, at the time of the April 13, 2023, meeting, it squarely fell within the first part of section\n\n2(c)(11). The School Board did not rely on the second clause of the exception, pertaining to a\npublic body finding an action probable or imminent, to discuss the pending litigation in closed\n\nsession. Accordingly, there is no basis for this office to conclude that the School Board violated\nOMA because Board of Review litigation was pending rather than probable or imminent when\n\nthe School Board discussed that matter in closed session.\nAlthough\n\ndid not allege that the School Board's discussion\n\nregarding the pending litigation was not appropriately limited in scope, this office notes that\n\nonce the litigation exception is properly invoked, the only matters which may lawfully be\ndiscussed at the closed meeting are the strategies, posture, theories, and consequences of the\n\nlitigation itself.\" Ill. Att'y Gen. Op. No. 83-026, issued December 23, 1983, at 14.9 See also City\nof Bloomington v. Raoul, 2021 IL App ( 4th) 190539, ¶¶ 35- 37, 184 N.E.3d 366, 372 ( 2021)\n\nconcluding that a city council's closed meeting, which had no discussion of legal theories,\ndefenses, claims, or possible approaches to litigation, was not within the scope of the litigation\n\nexception).\nThis office's confidential review of the closed session minutes and the pertinent\nportion of the closed session verbatim recording confirmed that the School Board' s attorney\n\nmade a presentation to the School Board regarding the pending action before the Board of\nReview, including the background of the action, litigation strategies and postures, and applicable\n\ncase law; the attorney also took questions about the litigation from members of the School\nBoard. Thus, the School Board' s discussion was within the scope of the section 2(c)( 11)\n\nexception.\n\n9At the time of the issuance of opinion No. 83 -026, an earlier but substantively identical version of\nsection 2(c)(11) of OMA excepted from the open meeting requirements:\nmeetings held to discuss litigation when an action against or on behalf of the\nparticular public body has been filed and is pending in a court or administrative\ntribunal, or when the public body fords that such an action is probable or\nimminent, in which case the basis for such a finding shall be recorded and\nentered into the minutes of the closed meeting in accordance with Section 2.06.\nIll Rev. Stat. 1981, ch. 102, par. 42(h).\n\n\fMr. Brian P. Crowley\nJuly 20, 2023\n\nPage 10\n\nFor the reasons stated above, this office concludes that section 2(c)(11) of OMA\nauthorized the School Board' s closed session discussion on April 13, 2023, and, therefore, the\n\nSchool Board did not violate section 2(a) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\n\nmay contact me at (312) 814-5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n76232 o 2a proper 2c11 proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a property tax appeal","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76232/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 20, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Brian P. Crowley\nFranczek P.C.\n\n[street address redacted for site publication -- see original PDF]\nbpc@franczek.com\nRE: OMA Request for Review – 2023 PAC 76232\nDear\n\nand Mr. Crowley:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons discussed below, this office concludes\n\nthat the Board of Education (School Board) of Township High School District 211 (District 211)\ndid not violate OMA at its April 13, 2023, meeting when it discussed in closed session a property\n\ntax appeal pending with the Cook County Board of Review (Board of Review).\nBACKGROUND\nOn April 13, 2023,\n\na member of the School Board,\n\nsubmitted a Request for Review to the Public Access Bureau alleging that the School Board\n\nviolated OMA during its April 13, 2023, meeting by improperly discussing in closed session a\nproperty tax appeal pending with the Board of Review.\n\nstated the School\n\nBoard discussed that appeal under the exception in section 2(c)(11) of OMA (5 ILCS\n120/ 2(c)(11) (West 2022)) that permits public bodies to enter closed session to discuss\n\nl]itigation, when an action against, affecting or on behalf of the particular public body has been\nfiled and is pending before a court or administrative tribunal, or when the public body finds that\n\nan action is probable or imminent, in which case the basis for the finding shall be recorded and\nentered into the minutes of the closed meeting.\"\n\nHe asked this office to review (1) whether the\n\nBoard of Review is an administrative tribunal; (2) whether the discussion was appropriate when\nDistrict 211 is not the particular body whose action is pending with the Board of Review; and (3)\n\nwhether the Board was permitted to enter closed session in the absence of probable or imminent\nlitigation.\nOn May 11, 2023, the Public Access Bureau forwarded a copy of the Request for\n\nReview to Ms. Anna Klimkowicz, as President of the School Board. The Public Access Bureau\nalso sent President Klimkowicz a letter asking the School Board to provide a written response to\n\nthe allegations in\n\nRequest for Review, along with copies of the agenda, open\n\nand closed session minutes, and a verbatim recording of the closed session portion of the School\n\nBoard's April 13, 2023, meeting, for this office's confidential review. On May 26, 2023, counsel\nfor the School Board provided the Public Access Bureau with the requested agenda and minutes\n\nand a written response to the Request for Review; he subsequently provided the verbatim\nrecording of the closed session. On June 7, 2023, the Public Access Bureau forwarded the\n\nSchool Board's written response to\n\nOn June 12, 2023,\n\nsubmitted his reply. On June 15, 2023, the School Board provided the Public Access Bureau a\n\nsupplement to its response, which this office forwarded to\n\non June 16, 2023.1\n\nHe did not submit an additional reply.\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Section 2(a) of OMA\n5 ILCS 120/ 2(a) (West 2022)) provides that \"[ a] ll meetings of public bodies shall be open to the\n\npublic unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such\nexceptions \" are in derogation of the requirement that public bodies meet in the open, and\n\ntherefore, the exceptions are to be strictly construed, extending only to subjects clearly within\ntheir scope.\" 5 ILCS 120/ 2(b) (West 2022).\nAs discussed above, section 2(c)(11) of OMA permits a public body to enter into\n\nclosed session to discuss: \" Litigation, when an action against, affecting or on behalf of the\nparticular public body has been filed and is pending before a court or administrative tribunal,\n\nor when the public body finds that an action is probable or imminent, in which case the basis for\nthe finding shall be recorded and entered into the minutes of the closed meeting.\" (Emphasis\n\nIn its response to this office, the School Board provided the following\n\nbackground:\nThe property tax matter currently pending with the Board\nof Review involves a dispute between a taxpayer, Churchill\n\nDowns, Inc., through its subsidiary Arlington Park Racecourse,\nLLC (\" CDI\"), and three local school districts— District 211,\n\nCommunity Consolidated School District 15 (\"CCSD 15\"), and\nTownship High School District 214 (\" District 214\") (together, the\n\nDistricts\")— regarding the 2022 tax year assessment by the Cook\nCounty Assessor's Office of a 309- acre property located in\n\nArlington Heights. This property (\"Subject Property\"), commonly\nknown as the Arlington Park Racecourse, is located at 2200 W.\n\nEuclid Ave., Arlington Heights, and identified by Property Index\nNumbers (\" PINs\") 02- 23- 403- 003, 02- 24- 303- 007, 02- 25- 100-\n\n005, 02-25-202-008, and 02-26-201-010, which fall within the\nboundaries of all three Districts.\nFor the 2022 tax year, the Cook County Assessor's Office\n\nincreased the assessment on the Subject Property from $8,370,955\nto $49,250, 001. This increase in assessed value corresponds to an\n\nincrease in the market value of the property from $33,483,820 in\n2021 to $197, 000, 004 in 2022. CDI notified the Districts through\n\nthis law firm, Franczek P.C., that it would be taking advantage of\nthe provisions in the Illinois Property Tax Code that allow a\n\ntaxpayer who is dissatisfied with an assessment to appeal the Cook\nCounty Assessor's decision to the Board of Review. 35 ILCS 200/\n\n16-115. * * *\nThe assessment of the Subject Property for the 2022 tax\nyear that is certified by the Board of Review will be used by the\n\nCook County Clerk and Treasurer to calculate the tax rates of the\nDistricts and the tax bills for the five PINs. The projected increase\n\nin CDI's property tax bill from just the three Districts resulting\n\nafter payment of its taxes are $208,000 for District 211, $3 million\nfor District 214, and $ 4.7 million for CCSD 15.\nOn November 11, 2022, this law firm notified the three\n\nDistricts of the taxpayer's intent to appeal the assessment to the\nBoard of Review. Shortly thereafter, the three Districts agreed to\n\nmove forward collectively as a unified group with a single\nstrategy. The Districts agreed to equally divide the cost of an\n\nindependent appraisal of the Subject Property, and on January 10,\n2023, representatives from all three Districts toured the property\n\nwith their appraiser.\nBy the March 9, 2023, deadline, both CDI and CCSD 15\nfiled complaints appealing the 2022 tax assessment.\n\nBoard of\n\nReview complaints are filed based on PINs. A single complaint by\nCCSD 15 was filed because three of the PINs pertaining to the\n\nDistricts' appeal are located in District 211; two of the PINs are\nlocated in District 214; and all five PINs are located in CCSD 15.\n\nRather than filing three distinct complaints to be\nconsolidated under a single docket number, which would have\n\ncaused unnecessary complication, a single complaint covering all\nthe PINs was filed naming CCSD 15 for administrative\n\nconvenience only. All three Districts, however, will experience the\nsame results from the assessment appeal, regardless of the\n\noutcome. All three Districts' interests are aligned, and the Board of\nReview decision will affect each one. The complaint is currently\n\npending before the Board of Review.\nBy the March 23, 2023, deadline, both CDI and the\nDistricts filed evidence and legal briefs in support of their\n\ncomplaints. CDI submitted an appraisal by Urban Real Estate\nResearch, Inc. concluding a market value for the Subject Property\n\nCDI and the Districts is currently anticipated to take place during\nthe first week of June 2023.\nThe three Districts agreed to equally divide the attorney's\n\nfees for the Board of Review appeal. All attorney-client\ncommunications regarding the Board of Review appeal are sent to\n\nall three Districts simultaneously. Franczek P.C., as the attorney\nfor the Districts, sends a single email to all three Districts with\n\nlegal advice; all telephone conferences between the Districts and\ntheir attorneys include representatives of all three Districts; and all\n\nthree Districts receive the same information in all communications.\nThe three Districts agreed that all three Districts must approve any\n\nsettlement with the taxpayer, and that the Districts must\nunanimously approve any decision regarding legal strategy.[ 2]\ns reply to the School Board's response did not dispute these\n\nfacts. However, he contended, for the first time, that the School Board executed an \" agreement\nfor intervention and attorney engagement\" during the April 13, 2023, closed session. He also\n\nappears to assert that the attorney offered to represent the School Board in a closed session and\nproceeded to undertake representation without the School Board taking action on the\n\nrepresentation in open session. Although those allegations are beyond the scope of what\nasked this office to review in his April 13, 2023, submission, there is no indication\n\nfrom the Public Access Bureau's review of the closed session recording and minutes that such an\noffer was made or that such an agreement was executed. As explained in the School Board's\n\nresponse to this office, the complaint by Community Consolidated School District 15 relating to\nthe Arlington International Racecourse assessment matter in front of the Board of Review had\n\nalready been filed, and evidence and legal briefs had been submitted to the Board of Review well\nbefore the School Board's April 13, 2023, meeting. 3\n\n2 Letter from Brian P. Crowley, Franczek P.C., to Edie Steinberg, Senior Assistant Attorney\nGeneral, Public Access Bureau, [ Office of the Attorney General] (May 26, 2023), at 2 -3.\n3 In addition, the School Board has informed this office that prior to the time of the April 13, 2023,\nmeeting, District 211's Superintendent authorized the Franczek law firm to serve District 211's interests in the\nmatter, through joint representation of District 211, District 214, and District 15, pursuant to District 211's board\npolicy, which provides, in pertinent part, that \"[ a]n attorney(s) shall be selected annually by the Board of Education\nto serve as the legal advisor(s) to the Board of Education and the Superintendent. The attorney(s) shall perform only\nsuch services as requested by the Superintendent or designee, or the Board of Education, through the Board\nPresident or designee, and not at the bequest of any individual Board member.\" District 211 Board Policy, Section\nB: School Board Governance and Operations, Title: School District Legal Counsel (adopted July 18, 2002). E-mail\nfrom Brian P. Crowley to Edie Steinberg, [ Senior Assistant Attorney General, Public Access Bureau, Office of the\n\nAdministrative Tribunal\nFirst, in his Request for Review,\n\nasked this office to review\n\nwhether the Board of Review is an \" administrative tribunal\" for purposes of section 2(c)(11) of\nOMA. The primary objective when construing the meaning of a statute is to ascertain and give\n\neffect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).\nThe most reliable indicator of legislative intent is the statutory language, given its plain and\n\nordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012 IL\n110012, ¶ 56, 969 N.E.2d 359, 372 (2012). OMA does not define \" administrative tribunal.\"\n\nAccordingly, the term is defined in accordance with its ordinary and commonly understood\nmeaning, and must be given its full meaning, not the narrowest meaning of which it is\n\nsusceptible. Lake County Board of Review v. Property Tax Appeal Board. of State of Ill., 119 Ill.\n2d 419, 423, (1988).\nBlack's Law Dictionary defines an \" administrative tribunal\" as \"[ a] court- like\n\ndecision-making authority that resolves disputes, * * *; an administrative agency exercising a\nquasi- judiciary function.\" Black's Law Dictionary, 1814 (11th ed. 2019). In turn Black's Law\n\nDictionary defines \"quasi-judicial\" as \"[ o]f, relating to, or involving an executive or\nadministrative official's adjudicative act. Quasi- judicial acts * * *\n\nare subject to review by\n\ncourts.\" Black's Law Dictionary 1501 (11th ed. 2019). Similarly, section 2(d) of OMA (5 ILCS\n120/ 2(d) (West 2022)) defines \" Quasi- adjudicative body\" as \" an administrative body charged by\n\nlaw or ordinance with the responsibility to conduct hearings, receive evidence or testimony and\nmake determinations based thereon.\"\n\nTaken together, it is clear that an administrative tribunal\n\nconsists of an administrative body before which a matter or dispute may be heard or tried, as\ndistinguished from a judicial forum.\nAccording to the United States Census Bureau, in 2020 Cook County had a\n\npopulation of 5,275,541.4 A board of review in counties with 3,000,000 or more inhabitants\nshall, on written complaint of any taxpayer or any taxing district that has an interest in the\n\nassessment that any property is overassessed, underassessed, or exempt, review the assessment\nand confirm, revise, correct, alter, or modify the assessment, as appears to be just[.]\"\n\n35 ILCS\n\n200/16-95(1) (West 2022). If a taxpayer or taxing district submits a complaint to a board of\nreview, notice procedures must be complied with, and the board of review holds hearings, and\n\nissues orders pertaining to assessments, which are appealable. 35 ILCS 200/16-115, 125, 160\nWest 2022). Consistent with these statutory provisions, the Board of Review describes itself as\n\n4 United States Census Bureau, Illinois 2020 Census, https:// www.census.gov/library/stories/stateby-state/illinois-population-change-between-census-decade.html (last visited July 8, 2023).\n\na \" quasi-judicial body, consisting of three co-equal elected commissioners, which 'sits as an\nappellate tribunal', inferior to the circuit [ courts]. It has the power to review and correct\n\nvaluations made by the Cook County Assessor.\" 5 Courts have described the Board of Review in\na similar manner. See e.g., Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281,\n\n295 (2010) (\" the general rule is that a taxpayer is limited to first exhausting administrative\nremedies provided by statute beginning with the Board of Review- the remedy at law for an\n\nincorrect assessment-- before seeking relief in the circuit court.\").\nIn his reply to the School Board's response,\n\nappears to assert\n\nthat the Board of Review should not be considered an \" administrative tribunal\" because that term\n\nis undefined in OMA and the terms that the Board of Review uses to describe itself––\"quasijudicial body\" and \" appellate tribunal\"–– also are undefined by the Act. 6 He further asserts that\n\nu]tilizing Black's Law Dictionary departs from the strict construction framed in the Open\nMeetings Act language.\" 7 To the contrary, \" it is entirely appropriate to employ a dictionary to\n\nascertain the plain and ordinary meaning of\" terms that a statute does not define. People v.\n\nhttps://plus.lexis.com/\nDavison, 233 Ill. 2d 30, 40 (2009). The features of the Board of Review set forth above are\napi/document/collection/\nconsistent with the definition of \"administrative tribunal\" as \" an administrative agency exercising\ncases/id/4W04-X9W0a quasi- judiciary function.\" Black's Law Dictionary 1814 (11th ed. 2019). Accordingly, this\nTXFS-P270-00000-00?\noffice concludes that the Board of Review constitutes an administrative tribunal for purposes of\nsection 2(c)(11) of OMA.\npage=40&reporter=3131\n&cite=233%20Ill.%202d\nAffecting the District\n%\n2030&context=1530671\nSection 2(c)(11) of OMA permits a public body to enter into closed session to\n\ndiscuss \" an action against, affecting or on behalf of the particular public body\" that has been\nfiled and is pending before a court or an administrative tribunal. (Emphasis added.) In its\n\nresponse to this office, the School Board asserted that the matter pending before the Board of\nReview and discussed by the School Board at the April 13, 2023, meeting directly impacts and\n\naffects District 211. The School Board explained that \"[ t]he assessment of property within each\nDistrict, as determined by the Board of Review, will affect the District's property tax rate and\nrevenue. * * *\n\nAs a result, all three Districts are aggressively pursuing this action as the outcome\n\n5 Cook County Illinois Board of Review, Legal Background,\nhttps:// www.cookcountyboardofreview. com/legal-background (last visited July 8, 2023).\n6E- mail from\n\nof the litigation will directly affect the Districts' primary revenue source: property tax dollars.\" 8\nhas not provided any information that the matter pending at the Board of\n\nReview would not affect District 211. Rather,\n\nappears to assert in his reply\n\nthat the School Board's closed session discussion was improper because District 211 is not the\n\nparticular body whose action is pending with the Board of Review. He then asserts that the\nSchool Board did not take action in open session to hire an attorney to represent its interests in\n\nthe Board of Review proceeding, which is not relevant to whether that matter is an action\naffecting\" the Board under section 2(c)(11) of OMA.\nLegislative intent is best evidenced by the language used in a statute, and if the\n\nstatutory language is clear and unambiguous, it must be given effect as written. Blum v. Koster,\n235 Ill. 2d. 21, 29 (2009). A reviewing body may not read into the unambiguous language of a\n\nstatute exceptions, limitations or conditions that the General Assembly did not express. Kraft,\nInc. v. Edgar, 138 Ill. 2d 178, 189 (1990).\nThe clear and unambiguous language of section 2(c)(11) of OMA does not require\n\nthe public body to be the party whose action is pending with an administrative tribunal in order\nto discuss a pending matter in closed session. Rather, section 2(c)(11) of OMA plainly permits a\n\npublic body to enter closed session to discuss litigation when an action \"affecting\" the public\nbody has been filed and is pending before an \" administrative tribunal,\" as well as when a pending\n\naction is against or on behalf of the public body. \"Affect\" is defined as \"[ t]o produce an effect\non[.]\"\n\nBlack's Law Dictionary 70 (11th ed. 2019). Because the outcome of the matter pending\n\nbefore the Board of Review will substantially impact the amount of property tax revenue District\n211 receives, that pending litigation is an action \" affecting\" the School Board within the scope of\n\nsection 2(c)(11) of OMA.\nProbable or Imminent\nalso asked this office to review the Board entering closed\n\nsession to discuss the property tax appeal currently pending with the Board of Review in the\nabsence of probable or imminent litigation. The plain language of section 2(c)(11) of OMA\n\npermits a public body to enter closed session to discuss litigation under two separate\ncircumstances: (1) \" when an action against, affecting or on behalf of the particular public body\n\nhas been filed and is pending before a court or administrative tribunal,\" or (2) \"when the public\nbody finds that an action is probable or imminent[.]\"\n\nAccordingly, a public body is not limited\n\nto discussing probable or imminent litigation under section 2(c)(11). The exception also\n\n8 Letter from Brian P. Crowley, Franczek, to Edie Steinberg, Senior Assistant Attorney General,\n\nauthorizes closed session discussions of litigation that has been filed and is pending before a\ncourt or an administrative tribunal.\nBecause the Arlington International Racecourse assessment appeal directly affects\n\nDistrict 211 and had been filed and was pending before the Board of Review, an administrative\ntribunal, at the time of the April 13, 2023, meeting, it squarely fell within the first part of section\n\n2(c)(11). The School Board did not rely on the second clause of the exception, pertaining to a\npublic body finding an action probable or imminent, to discuss the pending litigation in closed\n\nsession. Accordingly, there is no basis for this office to conclude that the School Board violated\nOMA because Board of Review litigation was pending rather than probable or imminent when\n\nthe School Board discussed that matter in closed session.\nAlthough\n\ndid not allege that the School Board's discussion\n\nregarding the pending litigation was not appropriately limited in scope, this office notes that\n\nonce the litigation exception is properly invoked, the only matters which may lawfully be\ndiscussed at the closed meeting are the strategies, posture, theories, and consequences of the\n\nlitigation itself.\" Ill. Att'y Gen. Op. No. 83-026, issued December 23, 1983, at 14.9 See also City\nof Bloomington v. Raoul, 2021 IL App (4th) 190539, ¶¶ 35- 37, 184 N.E.3d 366, 372 (2021)\n\nconcluding that a city council's closed meeting, which had no discussion of legal theories,\ndefenses, claims, or possible approaches to litigation, was not within the scope of the litigation\n\nexception).\nThis office's confidential review of the closed session minutes and the pertinent\nportion of the closed session verbatim recording confirmed that the School Board's attorney\n\nmade a presentation to the School Board regarding the pending action before the Board of\nReview, including the background of the action, litigation strategies and postures, and applicable\n\ncase law; the attorney also took questions about the litigation from members of the School\nBoard. Thus, the School Board's discussion was within the scope of the section 2(c)(11)\n\nexception.\n\n9 At the time of the issuance of opinion No. 83 -026, an earlier but substantively identical version of\nsection 2(c)(11) of OMA excepted from the open meeting requirements:\nmeetings held to discuss litigation when an action against or on behalf of the\n\nFor the reasons stated above, this office concludes that section 2(c)(11) of OMA\nauthorized the School Board's closed session discussion on April 13, 2023, and, therefore, the\n\nSchool Board did not violate section 2(a) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\n\nmay contact me at (312) 814-5201 or at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n76232 o 2a proper 2c11 proper sd"}
{"id":1416,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-09-12","case_number":null,"request_numbers":["76446"],"title":"Community Consolidated SD 15 Board violated OMA by implementing personnel action in closed session","filename":"76446, issued September 12, 2023.pdf","rel_path":null,"word_count":2964,"summary":"The PAC investigated whether the Community Consolidated School District 15 Board of Education violated the Open Meetings Act by finalizing a personnel transaction in closed session before taking public action. The PAC determined that the Board improperly implemented the personnel change privately before holding a pro forma vote in open session.","plain_summary":"A person alleged that the Community Consolidated School District 15 Board of Education violated the Open Meetings Act by removing a principal from her position and transferring her to a new role, with the decision and implementation occurring in closed session. The Public Access Bureau of the Illinois Attorney General's Office determined that the Board improperly authorized a personnel transaction during closed session and implemented it without taking corresponding final action in an open meeting. The determination explains why this was a violation but does not state any remedy or warning.","holding":"The Board of Education violated the Open Meetings Act by authorizing and implementing a personnel transaction in closed session without taking final action in an open meeting.","legal_question":"Whether a public body violates the Open Meetings Act by implementing a personnel transaction authorized in closed session prior to taking final action in an open meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Community Consolidated School District 15 Board of Education","requesting_party":"Mr. [Name redacted]","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Education improperly finalized a personnel transfer and removal of a principal during a closed session.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/76446, issued September 12, 2023.pdf","sha256":"989ba8398601dfd3d24483beb1835f47cb30576b368b80edcbb68a81afac6e02","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","personnel decision","final action","school board"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 12, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Steven M. Richart\n\nHodges Loizzi Eisenhammer Rodick & Kohn\n500 Park Boulevard, Suite 1000\n\nItasca, Illinois 60143\nsrichart@hlerk. com\nRE: OMA Request for Review – 2023 PAC 76446\nDear\n\nand Mr. Richart:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)). For the reasons explained below, the Public Access\nBureau concludes the Community Consolidated School District 15 ( District) Board of Education\n\nBoard) improperly authorized a personnel transaction during closed session on April 12, 2023,\nwhere the District implemented the transaction without the Board having taken corresponding\n\nfinal action in open session.\nIn his Request for Review, submitted May 3, 2023,\n\nalleged\n\nthat the Board violated OMA in connection with the removal of Dr. Kerry Wilson from her\n\nPrincipal position on April 21, 2023.\n\nstated that the Board had adopted a transfer of\n\nDr. Wilson to a position as an Assistant Director of Human Resources effective July 1, 2023, but\n\nsuddenly and unexpectedly terminated her employment as Principal on April 21, 2023.\ncited a local news article quoting Superintendent Laurie Heinz as stating that the Board\nwas involved in Dr. Wilson' s sooner- than- anticipated removal from the Principal position:\n\nP]lease realize the board of education, members of my cabinet, and I have taken great time as\nwell as care, even if you can' t see it and despite misinformation circulating, in making the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 2\n\ndecision to begin Dr. Wilson' s transition to human resources a few months sooner than originally\n\nanticipated.\" 1\n\nalleged that the Board improperly took final action by removing Dr.\n\nWilson from the position by April 21, 2023, behind closed doors.\nOn May 5, 2023, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide this office with copies of any notices, agendas, minutes, and recordings of\nthe meetings, open or closed, in which the Board discussed removing Dr. Wilson sooner than\n\nJuly 1, 2023, after adopting that as the effective date. This office also requested a written\nresponse to the allegation that the Board improperly decided to terminate Dr. Wilson' s Principal\n\nposition on or around April 21, 2023, outside of a properly-noticed open meeting. On May 25,\n2023, the Board furnished those materials, including a complete version of its response for this\n\noffice's confidential review and a redacted version for forwarding to\n2023,\n\nOn May 30,\n\nsubmitted a reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" ( Emphasis added.) Gosnell v. Hogan,\n179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).\nFinal Action\nSection 2(e) of OMA2 provides, in pertinent part, that \"[ n] o final action may be\n\ntaken at a closed meeting.\" The term \"final action\" generally does not encompass intermediate\nsteps taken by a public body in the process of resolving a matter. Gosnell, 179 Ill. App. 3d at\n\n176 (concluding that a board of education's closed session decision to pursue mediation as an\nalternative to its ongoing negotiations with the secretaries' union was part of the process of\n\nreaching a final action rather than final action itself). However, reaching a consensus and\nimplementing a decision outside of an open meeting is final action rather than an intermediate\n\nstep. See Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013 IL App (1st)\n122446, ¶ 29, 996 N.E.2d 664, 670 ( vacating the board' s decision to deny disability benefits\n\nbecause the board had circulated the decision for signatures privately rather than voting on it in\nopen session); Ill. Att'y Gen. PAC Req. Rev. Ltr. 58555, 58614, 58615, issued August 20, 2019,\n\nat 3 (public body took final action by reaching a consensus to prohibit camping at a park and\n\n1Steve Zalusky, Abrupt removal of Rolling Meadows junior high principal upsets students,\nparents, Daily Herald (Apr. 26, 2023, 8:48 p.m.).\n25 ILCS 120/2(e) ( West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 3\n\nimplementing that decision by posting \" no camping\" signs before voting on the matter at a\n\nsubsequent meeting).\nIn its response to this office, the Board confirmed the background that it had\nvoted in open session on March 8, 2023, to transfer Dr. Wilson from Principal of Plum Grove\n\nJunior High School to Assistant Director of Human Resources, effective July 1, 2023. The\nBoard indicated that it had discussed Dr. Wilson' s employment in closed session on April 12,\n\n2023,3 but asserted that it had properly approved her transfer in open session at its next meeting\non May 10, 2023. Citing Board policies, 4 the Board' s attorney argued that the Board \" did not\n\nneed to, nor did it, exercise authority to reassign Dr. Wilson immediately as the Superintendent\nhad the authority to do so.\" 5 The Board' s attorney did, however, acknowledge the Board' s role to\n\na degree in claiming that \"it was appropriate for the Board of Education to allow the\nSuperintendent to reassign Dr. Wilson effective immediately.\" 6 The Board' s attorney continued:\nThe ability for the Superintendent to gather feedback and\n\nopinions from Board members is a necessary step to ensure\ncollaboration between the Superintendent and her employer. Thus,\n\nit would be unreasonable to consider the Superintendent's simple\ncheck- in with the Board to be final action taken in closed session.\nWhile the Board' s discussion may have provided guidance to the\n\nSuperintendent, it did not in any way constitute final action under\nthe OMA.[ 7]\nThe Board' s attorney analogized this matter to Board of Education of Springfield School District\n\nNo. 186 v. Attorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625. In that case, the Court\nconcluded that a school board did not take final action in closed session when the members\n3The Board entered closed session pursuant to section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West\n2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022), which permits closed session discussion\nof, among other things: \" The appointment, employment, compensation, discipline, performance, or dismissal of\nspecific employees[.]\"\n4Community Consolidated School District 15 Board of Education, Policy Manual, §§3:050, 3:060,\n5:200, 5:240, available at https:// go.boarddocs.com/il/ccsd15/Board.nsf/Public?open& id=CCRQH4695484.\n5Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 4.\n6Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 4.\n7Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 5.\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 4\n\nsigned a severance agreement for a school principal because the final action occurred at a\n\nsubsequent meeting when the Board voted to approve the agreement. Springfield School\nDistrict, ¶¶ 73- 74, 77 N.E.3d at 637. Similarly, the Board' s attorney argued, the Board may have\n\ndiscussed the reassignment in closed session on April 12, 2023, but did not take final action on\nthe reassignment until open session on May 10, 2023.\nAs to the timing of the Board' s open session vote on May 10, 2023, in relation to\n\nthe transfer of Dr. Wilson several weeks prior, the Board's attorney claimed:\nFinal actions that are retroactive happen often due to the cyclical\nnature of board meetings. Here, the Board' s final action taken on\n\nMay 10, 2023, applied retroactively to the reassignment of Dr.\nWilson, effective April 24, 2023. Retroactivity is common for\n\npersonnel matters due to the infrequency of Board meetings and\nthe need for personnel actions between meetings.[ 8]\nThe Board' s attorney also analogized this matter to Gosnell v. Hogan and Davis v.\n\nBoard of Education of Farmer City-Mansfield Community Unit School District No. 17, 63 Ill.\nApp. 3d 495, 499 ( 4th Dist. 1978), for the argument that the Board' s approval of the personnel\ntransaction was intermediate in nature. In the latter case, a board of education adopted a\n\nresolution in closed session \" finding [the superintendent's] performance to be unsatisfactory for\nreasons specified in detail and reciting a 'tentative opinion and judgment' of the Board that he not\n\nbe rehired.\" Davis, 63 Ill. App. 3d at 498. The school board directed its secretary to notify the\nsuperintendent of its tentative decision within 24 hours, and set final action on the\n\nsuperintendent's contract for the next school board meeting to be held in two weeks. Davis, 63\nIll. App. 3d at 498. The court concluded that the school board' s tentative decision in closed\n\nsession \" did not dispose of the question of whether that employment should be terminated and,\ntherefore, was not final action.\" Davis, 63 Ill. App. 3d at 499.\nIn his reply,\n\nasserted that while the Board' s attorney \" is now framing\n\nthe change in status of Dr. Wilson's employment as a punitive measure[,]\" the Board and\nSuperintendent Heinz have told the public \" numerous times that Dr. Wilson' s immediate removal\n\nwas based upon an urgent need at the District office of Human Resources, and it was a career\nstep that Dr. Wilson allegedly had interest in.\" 9\n\nargued that under the District' s\n\nTerms and Conditions of Employment and Dismissal,\" the Board makes decisions on dismissal\n8Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 6.\n9Letter from\nMay 30, 2023), at [1].\n\nto Joshua Jones, Deputy Bureau Chief, Office of the Attorney General\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 5\n\nrecommendations from the superintendent; \" If there were a situation that the public was not\n\naware of that would've caused the Superintendent to exercise his/her rights under\" the Terms and\nConditions provisions for \" Removal for cause; notice and hearing; suspension, it wasn' t relayed\n\nin any way during open meetings.\" 10\n\nnoted that the Board's May 10, 2023, vote on\n\nthe reassignment occurred seven days after he submitted his Request for Review. This office\n\nsent a copy of the Request for Review to the Board five days before the meeting on May 5, 2023.\ncontended:\nI would argue that final action actually occurred on April 21st when\n\nthe Superintendent removed Dr. Wilson's access to Plum Grove\nJunior High and turned off her computer credentials. For the\n\nDistrict to say the reason for this delay is because of the length of\ntime between board meetings is not based in reality. They had\n\nevery opportunity to tell the public this change was going to occur\non April 12th meeting. It is a violation of the OMA if final action is\ntaken without a discussion and vote in open session. Explaining\ntheir delay in this manner is like saying that I was speeding\n\nyesterday, but I'm not speeding right now, so I didn't break the\nlaw.[ 11]\n\nThis office's review of the April 12, 2023, closed session verbatim recording\nconfirmed that the Board discussed Dr. Wilson' s employment under section 2(c)( 1), which was\n\nnot improper because the exception permits the discussion of such employment matters\nconcerning specific employees. This office' s review also confirmed that the Board reached an\n\nagreement to move up Dr. Wilson's transfer date. The closed session minutes correspondingly\ndocument that a decision was made in closed session to transfer Dr. Wilson to the new position\n\nwithin the month of April. This was not an intermediary measure; it disposed of Dr. Wilson's\ncontinued employment as Principal at an earlier date than the July 1, 2023, transfer that the\n\nBoard approved at its March 8, 2023, meeting. While delineating the extent to which the\nSuperintendent has the authority expedite the removal of an employee from her position as\n\nprincipal and move up her reassignment to a different role is outside the scope of the Public\nAccess Bureau' s purview, the Superintendent did not merely solicit input from Board members\n\nfor her consideration before making a unilateral decision; the Superintendent plainly sought and\nobtained the Board' s consent in closed session. Similarly, although the Board' s attorney argued\n\nthat the Superintendent had the authority to suspend Dr. Wilson, the Superintendent did not do\n10Letter from\nMay 30, 2023), at [2].\n\nto Joshua Jones, Deputy Bureau Chief, Office of the Attorney General\n\n11Letter from\nMay 30, 2023), at [2].\n\nto Joshua Jones, Deputy Bureau Chief, Office of the Attorney General\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 6\n\nso, and the information presented in this matter indicates that the District did not give the public\n\nthe impression that the sudden removal from the Principal position was disciplinary in nature or\notherwise based on alleged misconduct.\nAlthough the Board favorably cited Davis v. Board of Education of Farmer City-\n\nMansfield Community Unit School District No. 17, the school board's decision-making process in\nthat case offers a helpful contrast to the Board' s course of action here. Whereas the school board\n\nin Davis (1) unambiguously reached only a tentative intent in closed session to refrain from\nrehiring the superintendent, ( 2) planned to make a final decision on the rehiring in open session\n\nat its ensuing meeting, and (3) did not implement the decision until that open session approval,\nhere the Board' s closed session decision was not tentative, and it was implemented with finality\n\nbefore the Board took a vote in open session after the submission of\n\nRequest for\n\nReview. The Board' s reliance on in Board of Education of Springfield School District No. 186 v.\n\nAttorney General of Illinois is similarly misplaced. In that matter, a quorum of the school board\nsigned, but did not date, a proposed separation agreement with the superintendent in closed\n\nsession; the school board's attorney repeatedly advised the board \" that they would have to take a\npublic vote on the agreement[.]\"\n\nSpringfield School District, 2017 IL 120343, ¶ 6, 77 N.E.3d at\n\n628. The Court rejected this office's conclusion that signing the agreement in closed session\nconstituted impermissible final action, as the signing of the agreement in closed session was\npreliminary and the school board did not intend to finalize and implement the agreement until it\n\nvoted to approve the agreement at its ensuing meeting. Springfield School District, 2017 IL\n120343, ¶¶ 72- 74, 77 N.E.3d at 637. The Court in Springfield School District explained that the\n\nfacts and analysis were similar to Grissom v. Board of Education of Buckley-Loda Community\nSchool District No. 8, 75 Ill. 2d 314, 326- 27 ( 1979), and Jewell v. Board of Education, Du Quoin\n\nCommunity Unit Schools, District No. 300, 19 Ill. App. 3d 1091, 1094-95 (1974), as in those\ncases the school boards also made preliminary/ tentative findings in closed session and then\n\npublicly voted when they returned to open session. Thus, the Court in Springfield School\nDistrict did not discuss circumstances in which a school board decided to remove an employee\n\nfrom her current position in closed session, then voted on the matter weeks later after the\nremoval took effect.\nThe Board' s argument that a public body complies with OMA by approving a\n\ndecision in closed session as long as it openly takes final action at another meeting after the\ndecision has already been implemented is contrary to the intent of the Act. 5 ILCS 120/ 1 ( West\n\n2022) (requiring public bodies to take action openly). Taken to its logical conclusion, such an\ninterpretation would mean that a school board could approve a costly project in closed session\n\nunbeknownst to the public, expend the money for the project, and then place the matter on the\nagenda for a vote after the project has been completed. Given OMA' s central purpose of\n\nensuring that the public is kept informed about the conduct of the people's business, the statute\ncannot reasonably be construed to empower a governing body to make and enact contractual\n\n\fMr. Steven M. Richart\nSeptember 12, 2023\n\nPage 7\n\nchanges in private as long is it later follows with pro forma public approval after the changes\n\nhave taken effect.\nAccordingly, this office is unable to conclude that the Board acted with the\nrequisite openness in authorizing the early removal of Dr. Wilson as principal and transferring\n\nher to another position. Given the finality of that transaction and the Board's subsequent vote in\nopen session, however, no remedial action is available. This office cautions the Board to refrain\n\nfrom the same manner of privately making and implementing decisions in the future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n76446 o 2e final action improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's closed-session personnel transfer of a principal","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76446/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 12, 2023\n\nVia electronic mail\n\nVia electronic mail\nMr. Steven M. Richart\n\nHodges Loizzi Eisenhammer Rodick & Kohn\n500 Park Boulevard, Suite 1000\n\nItasca, Illinois 60143\nsrichart@hlerk. com\nRE: OMA Request for Review – 2023 PAC 76446\nDear\n\nand Mr. Richart:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes the Community Consolidated School District 15 (District) Board of Education\n\nBoard) improperly authorized a personnel transaction during closed session on April 12, 2023,\nwhere the District implemented the transaction without the Board having taken corresponding\n\nfinal action in open session.\nIn his Request for Review, submitted May 3, 2023,\n\nalleged\n\nthat the Board violated OMA in connection with the removal of Dr. Kerry Wilson from her\n\nPrincipal position on April 21, 2023.\n\nstated that the Board had adopted a transfer of\n\nDr. Wilson to a position as an Assistant Director of Human Resources effective July 1, 2023, but\n\nsuddenly and unexpectedly terminated her employment as Principal on April 21, 2023.\ncited a local news article quoting Superintendent Laurie Heinz as stating that the Board\nwas involved in Dr. Wilson's sooner- than- anticipated removal from the Principal position:\n\nP]lease realize the board of education, members of my cabinet, and I have taken great time as\nwell as care, even if you can' t see it and despite misinformation circulating, in making the\n\ndecision to begin Dr. Wilson's transition to human resources a few months sooner than originally\n\nanticipated.\" 1\n\nalleged that the Board improperly took final action by removing Dr.\n\nWilson from the position by April 21, 2023, behind closed doors.\nOn May 5, 2023, this office sent a copy of the Request for Review to the Board\n\nand asked it to provide this office with copies of any notices, agendas, minutes, and recordings of\nthe meetings, open or closed, in which the Board discussed removing Dr. Wilson sooner than\n\nJuly 1, 2023, after adopting that as the effective date. This office also requested a written\nresponse to the allegation that the Board improperly decided to terminate Dr. Wilson's Principal\n\nposition on or around April 21, 2023, outside of a properly-noticed open meeting. On May 25,\n2023, the Board furnished those materials, including a complete version of its response for this\n\noffice's confidential review and a redacted version for forwarding to\n2023,\n\nOn May 30,\n\nsubmitted a reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" (Emphasis added.) Gosnell v. Hogan,\n179 Ill. App. 3d 161, 171 (5th Dist. 1989).\nFinal Action\nSection 2(e) of OMA2 provides, in pertinent part, that \"[ n] o final action may be\n\ntaken at a closed meeting.\" The term \"final action\" generally does not encompass intermediate\nsteps taken by a public body in the process of resolving a matter. Gosnell, 179 Ill. App. 3d at\n\n176 (concluding that a board of education's closed session decision to pursue mediation as an\nalternative to its ongoing negotiations with the secretaries' union was part of the process of\n\nreaching a final action rather than final action itself). However, reaching a consensus and\nimplementing a decision outside of an open meeting is final action rather than an intermediate\n\nstep. See Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013 IL App (1st)\n122446, ¶ 29, 996 N.E.2d 664, 670 (vacating the board's decision to deny disability benefits\n\nbecause the board had circulated the decision for signatures privately rather than voting on it in\nopen session); Ill. Att'y Gen. PAC Req. Rev. Ltr. 58555, 58614, 58615, issued August 20, 2019,\n\nat 3 (public body took final action by reaching a consensus to prohibit camping at a park and\n\n1 Steve Zalusky, Abrupt removal of Rolling Meadows junior high principal upsets students,\nparents, Daily Herald (Apr. 26, 2023, 8:48 p.m.).\n25 ILCS 120/2(e) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n\nimplementing that decision by posting \" no camping\" signs before voting on the matter at a\n\nsubsequent meeting).\nIn its response to this office, the Board confirmed the background that it had\nvoted in open session on March 8, 2023, to transfer Dr. Wilson from Principal of Plum Grove\n\nJunior High School to Assistant Director of Human Resources, effective July 1, 2023. The\nBoard indicated that it had discussed Dr. Wilson's employment in closed session on April 12,\n\n2023,3 but asserted that it had properly approved her transfer in open session at its next meeting\non May 10, 2023. Citing Board policies, 4 the Board's attorney argued that the Board \" did not\n\nneed to, nor did it, exercise authority to reassign Dr. Wilson immediately as the Superintendent\nhad the authority to do so.\" 5 The Board's attorney did, however, acknowledge the Board's role to\n\na degree in claiming that \"it was appropriate for the Board of Education to allow the\nSuperintendent to reassign Dr. Wilson effective immediately.\" 6 The Board's attorney continued:\nThe ability for the Superintendent to gather feedback and\n\nopinions from Board members is a necessary step to ensure\ncollaboration between the Superintendent and her employer. Thus,\n\nit would be unreasonable to consider the Superintendent's simple\ncheck- in with the Board to be final action taken in closed session.\nWhile the Board's discussion may have provided guidance to the\n\nSuperintendent, it did not in any way constitute final action under\nthe OMA.[ 7]\nThe Board's attorney analogized this matter to Board of Education of Springfield School District\n\nNo. 186 v. Attorney General of Illinois, 2017 IL 120343, 77 N.E.3d 625. In that case, the Court\nconcluded that a school board did not take final action in closed session when the members\n3 The Board entered closed session pursuant to section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West\n2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022), which permits closed session discussion\nof, among other things: \" The appointment, employment, compensation, discipline, performance, or dismissal of\nspecific employees[.]\"\n4 Community Consolidated School District 15 Board of Education, Policy Manual, §§3:050, 3:060,\n5:200, 5:240, available at https:// go.boarddocs.com/il/ccsd15/Board.nsf/Public?open& id=CCRQH4695484.\n5 Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 4.\n6 Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 4.\n7 Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 5.\n\nsigned a severance agreement for a school principal because the final action occurred at a\n\nsubsequent meeting when the Board voted to approve the agreement. Springfield School\nDistrict, ¶¶ 73- 74, 77 N.E.3d at 637. Similarly, the Board's attorney argued, the Board may have\n\ndiscussed the reassignment in closed session on April 12, 2023, but did not take final action on\nthe reassignment until open session on May 10, 2023.\nAs to the timing of the Board's open session vote on May 10, 2023, in relation to\n\nthe transfer of Dr. Wilson several weeks prior, the Board's attorney claimed:\nFinal actions that are retroactive happen often due to the cyclical\nnature of board meetings. Here, the Board's final action taken on\n\nMay 10, 2023, applied retroactively to the reassignment of Dr.\nWilson, effective April 24, 2023. Retroactivity is common for\n\npersonnel matters due to the infrequency of Board meetings and\nthe need for personnel actions between meetings.[ 8]\nThe Board's attorney also analogized this matter to Gosnell v. Hogan and Davis v.\n\nBoard of Education of Farmer City-Mansfield Community Unit School District No. 17, 63 Ill.\nApp. 3d 495, 499 (4th Dist. 1978), for the argument that the Board's approval of the personnel\ntransaction was intermediate in nature. In the latter case, a board of education adopted a\n\nresolution in closed session \" finding [the superintendent's] performance to be unsatisfactory for\nreasons specified in detail and reciting a 'tentative opinion and judgment' of the Board that he not\n\nbe rehired.\" Davis, 63 Ill. App. 3d at 498. The school board directed its secretary to notify the\nsuperintendent of its tentative decision within 24 hours, and set final action on the\n\nsuperintendent's contract for the next school board meeting to be held in two weeks. Davis, 63\nIll. App. 3d at 498. The court concluded that the school board's tentative decision in closed\n\nsession \" did not dispose of the question of whether that employment should be terminated and,\ntherefore, was not final action.\" Davis, 63 Ill. App. 3d at 499.\nIn his reply,\n\nasserted that while the Board's attorney \" is now framing\n\nthe change in status of Dr. Wilson's employment as a punitive measure[,]\" the Board and\nSuperintendent Heinz have told the public \" numerous times that Dr. Wilson's immediate removal\n\nwas based upon an urgent need at the District office of Human Resources, and it was a career\nstep that Dr. Wilson allegedly had interest in.\" 9\n\nargued that under the District's\n\nTerms and Conditions of Employment and Dismissal,\" the Board makes decisions on dismissal\n8 Letter from Steven M. Richart, Hodges Loizzi Eisenhammer Rodick & Kohn, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 25, 2023), at 6.\n\nrecommendations from the superintendent; \" If there were a situation that the public was not\n\naware of that would've caused the Superintendent to exercise his/her rights under\" the Terms and\nConditions provisions for \" Removal for cause; notice and hearing; suspension, it wasn' t relayed\n\nin any way during open meetings.\" 10\n\nnoted that the Board's May 10, 2023, vote on\n\nthe reassignment occurred seven days after he submitted his Request for Review. This office\n\nsent a copy of the Request for Review to the Board five days before the meeting on May 5, 2023.\ncontended:\nI would argue that final action actually occurred on April 21st when\n\nthe Superintendent removed Dr. Wilson's access to Plum Grove\nJunior High and turned off her computer credentials. For the\n\nDistrict to say the reason for this delay is because of the length of\ntime between board meetings is not based in reality. They had\n\nevery opportunity to tell the public this change was going to occur\non April 12th meeting. It is a violation of the OMA if final action is\ntaken without a discussion and vote in open session. Explaining\ntheir delay in this manner is like saying that I was speeding\n\nyesterday, but I'm not speeding right now, so I didn't break the\nlaw.[ 11]\n\nThis office's review of the April 12, 2023, closed session verbatim recording\nconfirmed that the Board discussed Dr. Wilson's employment under section 2(c)(1), which was\n\nnot improper because the exception permits the discussion of such employment matters\nconcerning specific employees. This office's review also confirmed that the Board reached an\n\nagreement to move up Dr. Wilson's transfer date. The closed session minutes correspondingly\ndocument that a decision was made in closed session to transfer Dr. Wilson to the new position\n\nwithin the month of April. This was not an intermediary measure; it disposed of Dr. Wilson's\ncontinued employment as Principal at an earlier date than the July 1, 2023, transfer that the\n\nBoard approved at its March 8, 2023, meeting. While delineating the extent to which the\nSuperintendent has the authority expedite the removal of an employee from her position as\n\nprincipal and move up her reassignment to a different role is outside the scope of the Public\nAccess Bureau's purview, the Superintendent did not merely solicit input from Board members\n\nfor her consideration before making a unilateral decision; the Superintendent plainly sought and\nobtained the Board's consent in closed session. Similarly, although the Board's attorney argued\n\nthat the Superintendent had the authority to suspend Dr. Wilson, the Superintendent did not do\n10 Letter from\n\nso, and the information presented in this matter indicates that the District did not give the public\n\nthe impression that the sudden removal from the Principal position was disciplinary in nature or\notherwise based on alleged misconduct.\nAlthough the Board favorably cited Davis v. Board of Education of Farmer City-\n\nMansfield Community Unit School District No. 17, the school board's decision-making process in\nthat case offers a helpful contrast to the Board's course of action here. Whereas the school board\n\nin Davis (1) unambiguously reached only a tentative intent in closed session to refrain from\nrehiring the superintendent, (2) planned to make a final decision on the rehiring in open session\n\nat its ensuing meeting, and (3) did not implement the decision until that open session approval,\nhere the Board's closed session decision was not tentative, and it was implemented with finality\n\nbefore the Board took a vote in open session after the submission of\n\nRequest for\n\nReview. The Board's reliance on in Board of Education of Springfield School District No. 186 v.\n\nAttorney General of Illinois is similarly misplaced. In that matter, a quorum of the school board\nsigned, but did not date, a proposed separation agreement with the superintendent in closed\n\nsession; the school board's attorney repeatedly advised the board \" that they would have to take a\npublic vote on the agreement[.]\"\n\nSpringfield School District, 2017 IL 120343, ¶ 6, 77 N.E.3d at\n\n628. The Court rejected this office's conclusion that signing the agreement in closed session\nconstituted impermissible final action, as the signing of the agreement in closed session was\npreliminary and the school board did not intend to finalize and implement the agreement until it\n\nvoted to approve the agreement at its ensuing meeting. Springfield School District, 2017 IL\n120343, ¶¶ 72- 74, 77 N.E.3d at 637. The Court in Springfield School District explained that the\n\nfacts and analysis were similar to Grissom v. Board of Education of Buckley-Loda Community\nSchool District No. 8, 75 Ill. 2d 314, 326- 27 (1979), and Jewell v. Board of Education, Du Quoin\n\nCommunity Unit Schools, District No. 300, 19 Ill. App. 3d 1091, 1094-95 (1974), as in those\ncases the school boards also made preliminary/ tentative findings in closed session and then\n\npublicly voted when they returned to open session. Thus, the Court in Springfield School\nDistrict did not discuss circumstances in which a school board decided to remove an employee\n\nfrom her current position in closed session, then voted on the matter weeks later after the\nremoval took effect.\nThe Board's argument that a public body complies with OMA by approving a\n\ndecision in closed session as long as it openly takes final action at another meeting after the\ndecision has already been implemented is contrary to the intent of the Act. 5 ILCS 120/ 1 (West\n\n2022) (requiring public bodies to take action openly). Taken to its logical conclusion, such an\ninterpretation would mean that a school board could approve a costly project in closed session\n\nunbeknownst to the public, expend the money for the project, and then place the matter on the\nagenda for a vote after the project has been completed. Given OMA's central purpose of\n\nensuring that the public is kept informed about the conduct of the people's business, the statute\n\nchanges in private as long is it later follows with pro forma public approval after the changes\n\nhave taken effect.\nAccordingly, this office is unable to conclude that the Board acted with the\nrequisite openness in authorizing the early removal of Dr. Wilson as principal and transferring\n\nher to another position. Given the finality of that transaction and the Board's subsequent vote in\nopen session, however, no remedial action is available. This office cautions the Board to refrain\n\nfrom the same manner of privately making and implementing decisions in the future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n76446 o 2e final action improper sd"}
{"id":1417,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-05-23","case_number":null,"request_numbers":["76467"],"title":"Village of Dolton meeting location complaint closed due to insufficient evidence","filename":"76467, issued May 23, 2023.pdf","rel_path":null,"word_count":862,"summary":"A requester alleged that the Village of Dolton violated the Open Meetings Act by holding a meeting at a location that was not convenient for the public. The PAC determined that the requester failed to provide sufficient facts to support the allegation and closed the file.","plain_summary":"A citizen complained that a Village of Dolton meeting was held at an inconvenient location. The Attorney General's office reviewed the complaint and decided to close the case because the citizen did not provide enough evidence to show that the location actually prevented people from attending the meeting.","holding":"The PAC determined that no further action was warranted because the requester failed to provide a summary of facts supporting the allegation of an OMA violation.","legal_question":"Whether the Village of Dolton violated section 2.01 of the Open Meetings Act by holding a public meeting at a location that was allegedly inconvenient.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.01"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Dolton","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester challenged the convenience of the location chosen for a Village of Dolton Board of Trustees special meeting.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/76467, issued May 23, 2023.pdf","sha256":"f235140610f1ddc2d0d8fcc78c9ff37678555a6008c9c4ed59840f15efca72b8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting location","convenience","Open Meetings Act","public access"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 23, 2023\n\nVia electronic mail\nMr. Keith Freeman\n\nVillage Administrator\nVillage of Dolton\n14122 Dr. Martin Luther King, Jr. Drive\n\nDolton, Illinois 60419\nkfreeman@vodolton. org\nRE:\n\nOMA Request for Review – 2023 PAC 76467\n\nDear Mr. Freeman:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2020)). For the reasons explained below, the Public Access\nBureau will take no further action in this matter.\nIn your Request for Review, you alleged that the Village of Dolton ( Village)\n\nBoard of Trustees (Board) violated OMA in connection with its April 24, 2023, special meeting.\nSpecifically, you alleged that the Board violated section 2.01 of OMA ( 5 ILCS 120/ 2.01 ( West\n\n2020)) by holding its meeting at the Dolton Park District's Lester Long Building, a location that\nis not owned or leased by the Village and that you allege is not convenient.\nSection 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\n\nThe request for review * * * must include a summary of the facts supporting the\nallegation[]\" that the public body violated OMA. (Emphasis added.)\nSection 2.01 of OMA provides, in pertinent part, that \"[ a] ll meetings required by\n\nthe] Act to be public shall be held at specified times and places which are convenient and open\nto the public.\" Section 2.01 further provides, in pertinent part: \" Except as otherwise provided in\n\nthis Act, a quorum of members of a public body must be physically present at the location of an\nopen meeting.\"\n\nThis physical quorum requirement contains an exception for certain public\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Keith Freeman\n\nMay 23, 2023\nPage 2\n\nbodies with large geographic jurisdiction, as long as the meeting \" is held simultaneously at one\n\nof its offices and one or more other locations in a public building.\" (Emphasis added.) It is in\nthis context that section 2.01 defines \" public buildings,\" and this is the only provision in OMA\n\nrequiring a meeting to be held in a public building. Section 2.01 does not require that meetings\nunder any other circumstances are held in public buildings.\nOMA does not define what is \" convenient.\"\n\nUndefined statutory terms must be\n\ngiven their plain and ordinary meaning. Exelon Corp. v. Dept. of Revenue, 234 Ill. 2d 266, 275\n2009) ( finding that where a statute fails to specifically define a word, a court may use a\n\ndictionary to determine the word's plain and ordinary meaning). \"' Convenient' means 'suited to a\npersonal comfort or to easy performance' or 'affording accommodation or advantage.'\"\n\nGerwin v.\n\nLivingston Co. Board, 345 Ill. App. 3d 352, 361 (4th Dist. 2003) (quoting Merriam-Webster's\nCollegiate Dictionary 252 ( 10th ed. 2000)). In addressing the meaning of \"convenient\" for\n\npurposes of section 2.01 of OMA, the Gerwin court stated that \"[ a] meeting can be open in the\nsense that no one is prohibited from attending it, but it can be held in such an ill-suited,\n\nunaccommodating, unadvantageous place that members of the public, as a practical matter,\nwould be deterred from attending it.\" Gerwin, 345 Ill. App. 3d at 361. The court construed\n\nsection 2.01 as requiring \"not 'absolute accessibility' but 'reasonable accessibility.'\" Gerwin, 345\nIll. App. 3d at 362, quoting State ex rel. Badke v. Village Board of the Village of Greendale, 173\n\nWis. 2d 553, 579, 494 N.W.2d 408, 418 (Wis. 1993).\nThe Board held its April 24, 2023, special meeting at the Lester Long Field\nHouse, a location owned by the Dolton Park District, another public body, less than one mile\n\nfrom Village Hall.1 Although you allege that this location is less familiar to the public than the\nBoard' s usual meeting location at Village Hall, and therefore less convenient, this office has not\n\nreceived information from which it could conclude that anyone could not attend or was actually\ndeterred from attending the meeting due to its location.\n\n1Lester L. Long Fieldhouse, Dolton Park District, available at\nhttps:// www.doltonparkdistrict.org/location/lester-l-long-fieldhouse/ ( last visited May 11, 2023).\n\n\fr.Keith Freeman\n\nMay 23, 2023\nPage 3\n\nBecause you have not provided a summary of facts supporting the allegation that\n\nthe Board violated OMA, this office has determined that no further action is warranted in this\nmatter. This file is closed. If you have questions, you may contact me at ( 773) 590- 7878 or\n\nbenjamin.silver@ilag.gov.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n76467 o no fi war mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's special meeting location","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76467/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 23, 2023\n\nVia electronic mail\nMr. Keith Freeman\n\nVillage Administrator\nVillage of Dolton\n14122 Dr. Martin Luther King, Jr. Drive\n\nDolton, Illinois 60419\nkfreeman@vodolton. org\nRE:\n\nOMA Request for Review – 2023 PAC 76467\n\nDear Mr. Freeman:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons explained below, the Public Access\nBureau will take no further action in this matter.\nIn your Request for Review, you alleged that the Village of Dolton (Village)\n\nBoard of Trustees (Board) violated OMA in connection with its April 24, 2023, special meeting.\nSpecifically, you alleged that the Board violated section 2.01 of OMA (5 ILCS 120/ 2.01 (West\n\n2020)) by holding its meeting at the Dolton Park District's Lester Long Building, a location that\nis not owned or leased by the Village and that you allege is not convenient.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides that \"[ a] person\n\nwho believes that a violation of this Act by a public body has occurred may file a request for\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\n\nThe request for review * * * must include a summary of the facts supporting the\nallegation[]\" that the public body violated OMA. (Emphasis added.)\nSection 2.01 of OMA provides, in pertinent part, that \"[ a] ll meetings required by\n\nthe] Act to be public shall be held at specified times and places which are convenient and open\nto the public.\" Section 2.01 further provides, in pertinent part: \" Except as otherwise provided in\n\nthis Act, a quorum of members of a public body must be physically present at the location of an\nopen meeting.\"\n\nThis physical quorum requirement contains an exception for certain public\n\nbodies with large geographic jurisdiction, as long as the meeting \" is held simultaneously at one\n\nof its offices and one or more other locations in a public building.\" (Emphasis added.) It is in\nthis context that section 2.01 defines \" public buildings,\" and this is the only provision in OMA\n\nrequiring a meeting to be held in a public building. Section 2.01 does not require that meetings\nunder any other circumstances are held in public buildings.\nOMA does not define what is \" convenient.\"\n\nUndefined statutory terms must be\n\ngiven their plain and ordinary meaning. Exelon Corp. v. Dept. of Revenue, 234 Ill. 2d 266, 275\n2009) (finding that where a statute fails to specifically define a word, a court may use a\n\ndictionary to determine the word's plain and ordinary meaning). \"' Convenient' means 'suited to a\npersonal comfort or to easy performance' or 'affording accommodation or advantage.'\"\n\nGerwin v.\n\nLivingston Co. Board, 345 Ill. App. 3d 352, 361 (4th Dist. 2003) (quoting Merriam-Webster's\nCollegiate Dictionary 252 (10th ed. 2000)). In addressing the meaning of \"convenient\" for\n\npurposes of section 2.01 of OMA, the Gerwin court stated that \"[ a] meeting can be open in the\nsense that no one is prohibited from attending it, but it can be held in such an ill-suited,\n\nunaccommodating, unadvantageous place that members of the public, as a practical matter,\nwould be deterred from attending it.\" Gerwin, 345 Ill. App. 3d at 361. The court construed\n\nsection 2.01 as requiring \"not 'absolute accessibility' but 'reasonable accessibility.'\" Gerwin, 345\nIll. App. 3d at 362, quoting State ex rel. Badke v. Village Board of the Village of Greendale, 173\n\nWis. 2d 553, 579, 494 N.W.2d 408, 418 (Wis. 1993).\nThe Board held its April 24, 2023, special meeting at the Lester Long Field\nHouse, a location owned by the Dolton Park District, another public body, less than one mile\n\nfrom Village Hall.1 Although you allege that this location is less familiar to the public than the\nBoard's usual meeting location at Village Hall, and therefore less convenient, this office has not\n\nreceived information from which it could conclude that anyone could not attend or was actually\ndeterred from attending the meeting due to its location.\n\n1 Lester L. Long Fieldhouse, Dolton Park District, available at\nhttps:// www.doltonparkdistrict.org/location/lester-l-long-fieldhouse/ (last visited May 11, 2023).\n\nBecause you have not provided a summary of facts supporting the allegation that\n\nthe Board violated OMA, this office has determined that no further action is warranted in this\nmatter. This file is closed. If you have questions, you may contact me at (773) 590- 7878 or\n\nbenjamin.silver@ilag.gov.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n76467 o no fi war mun"}
{"id":1418,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-05-25","case_number":null,"request_numbers":["76520"],"title":"PAC declines to review untimely OMA complaint against City of Washington","filename":"76520, issued May 25, 2023.pdf","rel_path":null,"word_count":1486,"summary":"The requester alleged that the City of Washington improperly discussed a sewer project in closed sessions during 2016, but the PAC declined to review the matter because the request was untimely and the subject of pending litigation.","plain_summary":"A requester asked the Attorney General to investigate closed-door meetings held by the City of Washington back in 2016. The Attorney General's office refused to investigate because the request was filed years too late and the same issue is already being handled in a court lawsuit. Consequently, the PAC closed the file without taking any action.","holding":"The PAC lacks the authority to review the allegations because the Request for Review was filed well beyond the 60-day statutory deadline and the matter is currently subject to pending litigation.","legal_question":"Does the Public Access Counselor have the authority to review an OMA complaint filed years after the alleged violations occurred and while the matter is subject to pending litigation?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Washington","requesting_party":"Mr. Dylan P. Grady","pac_outcome":"Closed due to untimeliness and pending litigation","pac_law_type":null,"subject_category":"closed session","subject_description":"The requester challenged the propriety of closed session discussions regarding a 2016 sewer project.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/76520, issued May 25, 2023.pdf","sha256":"b8e91f5e3da59515c96324e290d376998df299d1594564d7509f19c477b63523","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","statute of limitations","pending litigation","OMA"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 25, 2023\n\nVia electronic mail\nMr. Dylan P. Grady\n\nBrown, Hay & Stephens, LLP\n205 South Fifth Street\n\n[street address redacted for site publication -- see original PDF]\ndgrady@bhslaw.com\nRE: OMA Request for Review – 2023 PAC 76520\nDear Mr. Grady:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) ( West 2020)). For the reasons that follow, the Public Access Bureau\n\nlacks the authority to review your allegations because your Request for Review is untimely.\nOn May 8, 2023, this office received your Request for Review alleging possible\nviolations of OMA by the City Council ( Council) of the City of Washington ( City) related to the\n\nCouncil's discussions concerning a Phase 2B Farm Creek Trunk Sewer Project (Project).\nSpecifically, you alleged that the Council improperly discussed this Project in closed session\n\nduring eight specified meetings that were held in 2016.1 You explained that you submitted a\nFreedom of Information Act ( 5 ILCS 140/ 1 et seq. ( West 2020)) request to the City on February\n\n7, 2023, seeking copies of the closed session minutes and recordings of Council meetings held in\n2016, but that the City denied most of the request on March 9, 2023, despite more than six years\n\nhaving since passed. You also learned that some of the requested verbatim recordings were\ndestroyed pursuant to section 2.06( c) of OMA ( 5 ILCS 120/ 2.06( c) ( West 2021 Supp.)).\nSection 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2020)) limits this office' s\n\nauthority to review OMA complaints as follows:\n\n1The meetings were held on: June 6, 2016, July 5, 2016, August 1, 2016, August 8, 2016, August\n15, 2016, September 6, 2016, October 3, 2016, and October 10, 2016.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Dylan P. Grady\n\nMay 25, 2023\nPage 2\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nUnder the plain language of section 3.5(a) of OMA, a person using reasonable diligence who\ndoes not discover facts concerning an alleged OMA violation within 60 days after it occurs may\n\nstill submit a Request for Review no more than two years after the date of the alleged violation\nupon discovery of relevant facts.\nYour Request for Review acknowledges that more than two years have passed\n\nsince the alleged OMA violations concerning the closed sessions took place, but you contend\nthat the time to submit a Request for Review should be extended or tolled because your efforts to\n\ngather relevant facts \"have been thwarted by the City's refusal to timely and comprehensively\nprovide information\" regarding the Project. 2 You argued that in circumstances where the City is\nable to deny requests for copies of the Council' s closed session verbatim recordings3 and \" then\n\navail itself of the benefit of the 2-year\" time limit to submit a Request for Review, \"the Illinois\nSupreme Court in DeLuna v. Burciaga, 223 Ill.2d 49, 71- 71, 857 N.E.2d 229, 306 Ill. Dec. 136\n\n2006) concluded that the Illinois Fraudulent Concealment statute [735 ILCS 5/13-215] applies\nto both statutes of limitation and statutes of repose.\" 4\nSection 13 of the Code of Civil Procedure ( Code) ( 735 ILCS 5/13 et seq. ( West\n\n2020)) governs the statutes of limitation and statutes of repose for various types of civil actions,\nsuch as actions for legal malpractice, personal injury, and damages involving criminal acts.\n\nSection 13-215 of the Code (735 ILCS 5/13-215 (West 2020)) provides:\n\n2Letter from Dylan P. Grady, Brown Hay & Stephens, to Leah Bartelt, Public Access Counselor,\nOffice of the Attorney General (May 8, 2023), at 4.\n3Section 2.06(e) of OMA (5 ILCS 120/2.06(e) ( West 2021 Supp.)) provides: \" Unless the public\nbody has made a determination that the verbatim recording no longer requires confidential treatment or otherwise consents to\ndisclosure, the verbatim record of a meeting closed to the public shall not be open for public inspection or subject to discovery\nin any administrative or judicial proceeding other than one brought to enforce this Act.\"\n4Letter from Dylan P. Grady, Brown Hay & Stephens, to Leah Bartelt, Public Access Counselor,\nOffice of the Attorney General (May 8, 2023), at 5.\n\n\fMr. Dylan P. Grady\n\nMay 25, 2023\nPage 3\n\nIf a person liable to an action fraudulently conceals the\ncause of action from the knowledge of the person entitled thereto,\n\nthe action may be commenced at any time within 5 years after the\nperson entitled to bring the same discovers that he or she has such\n\ncause of action, and not afterwards.\nIn DeLuna, the Illinois Supreme Court considered, in relevant part, \"whether the statute of repose\nfor legal malpractice may be tolled on grounds of fraudulent concealment[.]\"\n\nDeLuna v.\n\nBurciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 235 (2006). The Court reviewed the abovedescribed fraudulent concealment provision and held that \" when applicable, [ section 13- 215 of\n\nthe Code] is an exception to the statute of repose contained in section 13-214.3(c) of the Code.\"\nDeLuna, 223 Ill. 2d at 74. The Court concluded that two of the plaintiffs' pleadings were\n\nsufficient to show a fraudulent concealment of facts supporting their causes of action and thus\nthat the plaintiffs \" timely filed within the limitations period set forth in section 13- 215 of the\n\nCode.\" DeLuna, 223 Ill. 2d at 81-82.\nThe above-described exception to the statute of repose in the Code pertains to\ncivil actions filed in court. A Request for Review filed with the Public Access Counselor,\n\nhowever, is an alternative to filing suit to resolve a dispute concerning OMA. Compare 5 ILCS\n120/ 3(a) ( West 2020) (\" Where the provisions of [ OMA] are not complied with * * * any person,\nmay bring a civil action in the circuit court\") with 5 ILCS 120/ 3.5(a) ( West 2020) (\" A\n\nperson who believes that a violation of this Act by a public body has occurred may file a request\nfor review with the Public Access Counselor established in the Office of the Attorney General\").\n\nA binding opinion issued by the Attorney General shall be considered a final decision of an\nadministrative agency, for purposes of administrative review under the Administrative Review\n\nLaw (735 ILCS 5/Art. III).\" 5 ILCS 120/7.5 (West 2020). The Code does not apply to\nadministrative proceedings.\n\nDesai v. Metropolitan Sanitary District, 125 Ill. App. 3d 1031, 1033\n\n1st Dist. 1984) (\" the Code of Civil Procedure is inapplicable to administrative proceedings[ ]\"\nbecause \" administrative procedure is simpler, less formal and less technical than judicial\n\nprocedure.\").\nBecause section 13-215 of the Code is inapplicable to the time limits for\nsubmitting a Request for Review to the Public Access Counselor set forth in section 3.5(a) of\n\nOMA, your submission is untimely and this office is unable to review the allegation that the\nCouncil violated OMA by holding improper closed session discussions in 2016. This office also\n\nnotes that your submission appears to indicate that some or all of the alleged violations are the\nsubject of a lawsuit pending in Tazewell County Circuit Court. OMA precludes this office from\n\nreviewing alleged OMA violations that are the subject of litigation. 5 ILCS 120/3.5(f) (West\n2020) (\" If the requester files suit under Section 3 with respect to the same alleged violation that\n\nis the subject of a pending request for review, the requester shall notify the Public Access\n\n\fr.Dylan P. Grady\n\nMay 25, 2023\nPage 4\n\nCounselor, and the Public Access Counselor shall take no further action with respect to the\nrequest for review and shall so notify the public body.\").\nThis letter serves to close this file. If you have questions, please contact me at the\n\nChicago address on the bottom of the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n76520 o 60 days mun\ncc:\n\nVia electronic mail\n\nThe Honorable Gary W. Manier\nMayor\n\nCity of Washington\n301 Walnut Street\nWashington, Illinois 61571\n\ngmanier@ci.washington.il.us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussions of a 2016 sewer project","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76520/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 25, 2023\n\nVia electronic mail\nMr. Dylan P. Grady\n\nBrown, Hay & Stephens, LLP\n205 South Fifth Street\n\n[street address redacted for site publication -- see original PDF]\ndgrady@bhslaw.com\nRE: OMA Request for Review – 2023 PAC 76520\nDear Mr. Grady:\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons that follow, the Public Access Bureau\n\nlacks the authority to review your allegations because your Request for Review is untimely.\nOn May 8, 2023, this office received your Request for Review alleging possible\nviolations of OMA by the City Council (Council) of the City of Washington (City) related to the\n\nCouncil's discussions concerning a Phase 2B Farm Creek Trunk Sewer Project (Project).\nSpecifically, you alleged that the Council improperly discussed this Project in closed session\n\nduring eight specified meetings that were held in 2016.1 You explained that you submitted a\nFreedom of Information Act (5 ILCS 140/ 1 et seq. (West 2020)) request to the City on February\n\n7, 2023, seeking copies of the closed session minutes and recordings of Council meetings held in\n2016, but that the City denied most of the request on March 9, 2023, despite more than six years\n\nhaving since passed. You also learned that some of the requested verbatim recordings were\ndestroyed pursuant to section 2.06(c) of OMA (5 ILCS 120/ 2.06(c) (West 2021 Supp.)).\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) limits this office's\n\nauthority to review OMA complaints as follows:\n\n1 The meetings were held on: June 6, 2016, July 5, 2016, August 1, 2016, August 8, 2016, August\n15, 2016, September 6, 2016, October 3, 2016, and October 10, 2016.\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nUnder the plain language of section 3.5(a) of OMA, a person using reasonable diligence who\ndoes not discover facts concerning an alleged OMA violation within 60 days after it occurs may\n\nstill submit a Request for Review no more than two years after the date of the alleged violation\nupon discovery of relevant facts.\nYour Request for Review acknowledges that more than two years have passed\n\nsince the alleged OMA violations concerning the closed sessions took place, but you contend\nthat the time to submit a Request for Review should be extended or tolled because your efforts to\n\ngather relevant facts \"have been thwarted by the City's refusal to timely and comprehensively\nprovide information\" regarding the Project. 2 You argued that in circumstances where the City is\nable to deny requests for copies of the Council's closed session verbatim recordings3 and \" then\n\navail itself of the benefit of the 2-year\" time limit to submit a Request for Review, \"the Illinois\nSupreme Court in DeLuna v. Burciaga, 223 Ill.2d 49, 71- 71, 857 N.E.2d 229, 306 Ill. Dec. 136\n\n2006) concluded that the Illinois Fraudulent Concealment statute [735 ILCS 5/13-215] applies\nto both statutes of limitation and statutes of repose.\" 4\nSection 13 of the Code of Civil Procedure (Code) (735 ILCS 5/13 et seq. (West\n\n2020)) governs the statutes of limitation and statutes of repose for various types of civil actions,\nsuch as actions for legal malpractice, personal injury, and damages involving criminal acts.\n\nSection 13-215 of the Code (735 ILCS 5/13-215 (West 2020)) provides:\n\n2 Letter from Dylan P. Grady, Brown Hay & Stephens, to Leah Bartelt, Public Access Counselor,\nOffice of the Attorney General (May 8, 2023), at 4.\n3 Section 2.06(e) of OMA (5 ILCS 120/2.06(e) (West 2021 Supp.)) provides: \" Unless the public\nbody has made a determination that the verbatim recording no longer requires confidential treatment or otherwise consents to\ndisclosure, the verbatim record of a meeting closed to the public shall not be open for public inspection or subject to discovery\nin any administrative or judicial proceeding other than one brought to enforce this Act.\"\n4 Letter from Dylan P. Grady, Brown Hay & Stephens, to Leah Bartelt, Public Access Counselor,\n\nIf a person liable to an action fraudulently conceals the\ncause of action from the knowledge of the person entitled thereto,\n\nthe action may be commenced at any time within 5 years after the\nperson entitled to bring the same discovers that he or she has such\n\ncause of action, and not afterwards.\nIn DeLuna, the Illinois Supreme Court considered, in relevant part, \"whether the statute of repose\nfor legal malpractice may be tolled on grounds of fraudulent concealment[.]\"\n\nDeLuna v.\n\nBurciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 235 (2006). The Court reviewed the abovedescribed fraudulent concealment provision and held that \" when applicable, [ section 13- 215 of\n\nthe Code] is an exception to the statute of repose contained in section 13-214.3(c) of the Code.\"\nDeLuna, 223 Ill. 2d at 74. The Court concluded that two of the plaintiffs' pleadings were\n\nsufficient to show a fraudulent concealment of facts supporting their causes of action and thus\nthat the plaintiffs \" timely filed within the limitations period set forth in section 13- 215 of the\n\nCode.\" DeLuna, 223 Ill. 2d at 81-82.\nThe above-described exception to the statute of repose in the Code pertains to\ncivil actions filed in court. A Request for Review filed with the Public Access Counselor,\n\nhowever, is an alternative to filing suit to resolve a dispute concerning OMA. Compare 5 ILCS\n120/ 3(a) (West 2020) (\" Where the provisions of [ OMA] are not complied with * * * any person,\nmay bring a civil action in the circuit court\") with 5 ILCS 120/ 3.5(a) (West 2020) (\" A\n\nperson who believes that a violation of this Act by a public body has occurred may file a request\nfor review with the Public Access Counselor established in the Office of the Attorney General\").\n\nA binding opinion issued by the Attorney General shall be considered a final decision of an\nadministrative agency, for purposes of administrative review under the Administrative Review\n\nLaw (735 ILCS 5/Art. III).\" 5 ILCS 120/7.5 (West 2020). The Code does not apply to\nadministrative proceedings.\n\nDesai v. Metropolitan Sanitary District, 125 Ill. App. 3d 1031, 1033\n\n1st Dist. 1984) (\" the Code of Civil Procedure is inapplicable to administrative proceedings[ ]\"\nbecause \" administrative procedure is simpler, less formal and less technical than judicial\n\nprocedure.\").\nBecause section 13-215 of the Code is inapplicable to the time limits for\nsubmitting a Request for Review to the Public Access Counselor set forth in section 3.5(a) of\n\nOMA, your submission is untimely and this office is unable to review the allegation that the\nCouncil violated OMA by holding improper closed session discussions in 2016. This office also\n\nnotes that your submission appears to indicate that some or all of the alleged violations are the\nsubject of a lawsuit pending in Tazewell County Circuit Court. OMA precludes this office from\n\nreviewing alleged OMA violations that are the subject of litigation. 5 ILCS 120/3.5(f) (West\n2020) (\" If the requester files suit under Section 3 with respect to the same alleged violation that\n\nis the subject of a pending request for review, the requester shall notify the Public Access\n\nCounselor, and the Public Access Counselor shall take no further action with respect to the\nrequest for review and shall so notify the public body.\").\nThis letter serves to close this file. If you have questions, please contact me at the\n\nChicago address on the bottom of the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n76520 o 60 days mun\ncc:\n\nVia electronic mail\n\nThe Honorable Gary W. Manier\nMayor\n\nCity of Washington\n301 Walnut Street\nWashington, Illinois 61571\n\ngmanier@ci.washington.il.us"}
{"id":1419,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-05-23","case_number":null,"request_numbers":["76564"],"title":"Village of Wayne Board of Trustees allowed unsworn official to attend closed session","filename":"76564, issued May 23, 2023.pdf","rel_path":null,"word_count":472,"summary":"A requester alleged that the Village of Wayne Board of Trustees violated the Open Meetings Act by allowing an unsworn, newly elected official to attend a closed session. The PAC determined that the Open Meetings Act does not prohibit public bodies from allowing third parties to attend closed sessions.","plain_summary":"A citizen complained that a Village Board allowed a person who hadn't been officially sworn in yet to sit in on a private, closed-door meeting. The Attorney General's office reviewed the law and found that the Open Meetings Act does not actually list who is allowed or forbidden to attend these private sessions. Because the law gives the Board discretion on this matter, the PAC closed the case without finding a violation.","holding":"The PAC determined that no violation occurred because the Open Meetings Act does not restrict who a public body may permit to attend a closed session.","legal_question":"Does the Open Meetings Act prohibit a public body from allowing a third party, such as an unsworn official, to attend a closed session?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Wayne Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The attendance of an unsworn, newly elected official at a closed session meeting of the Village Board.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2a/76564, issued May 23, 2023.pdf","sha256":"71428482f62511d95fa48291931181ab30e12adafedf6aaaf490b04f552ecfc2","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting attendance","elected officials","OMA"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 23, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 76564\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted as to your allegation that the Village of\nWayne Board of Trustees ( Board) permitted a resident to attend a closed session discussion.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) ( West 2020)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. ( Emphasis added.)\nYour Request for Review alleges that the Board allowed an individual who\nappears to have recently been elected to the Board to attend the closed session portion of its\nApril 20, 2023, meeting. You assert that doing so violated OMA because the election has not\nbeen certified and the individual has not been sworn in or completed OMA training.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMay 23, 2023\nPage 2\n\nSection 2(c) of OMA 1 authorizes public bodies to enter closed session to discuss\ncertain enumerated topics. However, \" OMA does not specifically identify who may or may not\nattend a closed meeting[,] * * * [ and] no provision of OMA prohibits a public body from\npermitting any particular individual from attending a closed session.\" Ill. Att'y Gen. PAC Req.\nRev. Ltr. 35792, issued June 22, 2015, at 1. Because public bodies have discretion to permit\nthird parties to attend closed session discussions, this office will take no further action in this\nmatter.\nThis file is closed. If you have any questions, please contact me at (312) 8146756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n76564 o no fi war mun\ncc:\n\nThe Honorable Eileen Phipps\nBoard of Trustees\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\nmailto:e.phipps@\ne.phipps@villageofwayne. org\nvillageof\n\n15 ILCS 120/ 2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An unsworn official's attendance at a closed session","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76564/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 23, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 76564\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2020)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted as to your allegation that the Village of\nWayne Board of Trustees (Board) permitted a resident to attend a closed session discussion.\nSection 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2020)) provides:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * * The\nrequest for review must be in writing, must be signed by the\nrequester, and must include a summary of the facts supporting the\nallegation. (Emphasis added.)\nYour Request for Review alleges that the Board allowed an individual who\nappears to have recently been elected to the Board to attend the closed session portion of its\nApril 20, 2023, meeting. You assert that doing so violated OMA because the election has not\nbeen certified and the individual has not been sworn in or completed OMA training.\n\nSection 2(c) of OMA 1 authorizes public bodies to enter closed session to discuss\ncertain enumerated topics. However, \" OMA does not specifically identify who may or may not\nattend a closed meeting[,] * * * [ and] no provision of OMA prohibits a public body from\npermitting any particular individual from attending a closed session.\" Ill. Att'y Gen. PAC Req.\nRev. Ltr. 35792, issued June 22, 2015, at 1. Because public bodies have discretion to permit\nthird parties to attend closed session discussions, this office will take no further action in this\nmatter.\nThis file is closed. If you have any questions, please contact me at (312) 8146756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n76564 o no fi war mun\ncc:\n\nThe Honorable Eileen Phipps\nBoard of Trustees\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\nmailto:e.phipps@\ne.phipps@villageofwayne. org\nvillageof\n\n15 ILCS 120/ 2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022."}
{"id":1420,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-09","case_number":null,"request_numbers":["76616"],"title":"O'Fallon Township HS Board improperly cited 2(c)(10) for student discipline closed sessions","filename":"76616, issued June 9, 2023.pdf","rel_path":null,"word_count":1213,"summary":"A requester alleged that the O'Fallon Township High School District Board of Education improperly cited section 2(c)(10) of the Open Meetings Act to enter closed session for student disciplinary matters, which should have been cited under section 2(c)(9). The PAC determined that the Board used an incorrect exception for its closed sessions on four specific dates in 2023.","plain_summary":"A school board held several closed-door meetings to discuss student disciplinary cases but cited the wrong legal reason for doing so in their meeting records. The Attorney General's office agreed with the requester that the board used the incorrect legal exception. The board has been advised to be more careful in citing the correct legal authority for closing meetings to the public in the future.","holding":"The Board of Education improperly cited section 2(c)(10) of the Open Meetings Act to enter closed session for matters that should have been addressed under section 2(c)(9).","legal_question":"Whether the Board of Education properly cited section 2(c)(10) of the Open Meetings Act to enter closed session for student disciplinary cases.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(9)","5 ILCS 120/2(c)(10)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(10)","120/2(c)(9)","2(c)(10)","2(c)(9)"],"public_body":"O'Fallon Township High School District No. 203 Board of Education","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Education held closed sessions to discuss student disciplinary cases while citing an incorrect statutory exception.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_9/76616, issued June 9, 2023.pdf","sha256":"6fe6422c992ec1362db263bcb3305375be020afe5e0b40e8aa635d8edeb29c5b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","student discipline","OMA violation"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 9, 2023\n\nVia electronic mail\n\nVia electronic mail\nDr. Darcy G. Benway\n\nSuperintendent\nO'Fallon Township High School District No. 203\n\n600 South Smiley Street\nO'Fallon, Illinois 62269\n\nbenwayd@oths.us\nRE: OMA Request for Review – 2023 PAC 76616\nDear\n\nand Dr. Benway:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the Board of Education (Board) of O'Fallon Township High School\nDistrict No. 203 (\" District\" or \" OTHS\") used an incorrect exception to enter closed session\n\nduring its March 13, 2023, March 29, 2023, April 13, 2023, and April 24, 2023, meetings.\nOn May 15, 2023,\n\nsubmitted a Request for Review alleging that\n\nthe Board cited an incorrect exception for entering into closed session on March 13, 2023, March\n\n29, 2023, April 13, 2023, and April 24, 2023. He alleged that although the Board's meeting\nminutes allude to entering closed session pursuant to section 2(c)( 10) of OMA, 1 the context\n\nindicates that the true basis was disciplinary cases under section 2(c)(9) of OMA.2\n15 ILCS 120/2(c)(10) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n25 ILCS 120/2(c)(9) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fDr. Darcy G. Benway\nJune 9, 2023\n\nPage 2\n\nOn May 18, 2023, this office forwarded a copy of the Request for Review to\n\nSuperintendent Darcy G. Benway on behalf of the Board and requested unredacted copies of the\nclosed session minutes of the Board' s March 13, 2023, March 29, 2023, April 13, 2023, and\n\nApril 24, 2023, meetings for this office's confidential review. This officer also requested a\nwritten response to the allegation that the Board did not cite in open session, or sufficiently\n\nrecord in the meeting minutes, the correct OMA exception authorizing the closed sessions. On\nMay 23, 2023, Dr. Benway provided a written response but not copies of the closed session\n\nminutes, explaining that they concern only student conduct and discipline. On May 25, 2023,\nsubmitted a reply.\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Accordingly, section\n2(a) of OMA3 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA.4 The\nsection 2(c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 5 Sections 2(c)(9) and 2(c)(10) of OMA concern:\n9)\n\nStudent disciplinary cases.\n\n10) The placement of individual students in special education\nprograms and other matters relating to individual students.\nSection 2a of OMA6 requires that \" a citation to the specific exception contained in Section 2 of\n\nthis Act which authorizes the closing of the meeting to the public shall be publicly disclosed at\nthe time of the vote and shall be recorded and entered into the minutes of the meeting.\"\nIn the Board' s response to this office, Dr. Benway stated that \" the District\n\nidentified the purpose of the Special Meetings on each agenda as 'Student Discipline.'\" 7 She\nasserted:\n35 ILCS 120/2(a) ( West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n45 ILCS 120/2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n55 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n65 ILCS 120/2a (West 2020).\n7Letter from Darcy G. Benway, Ed.D., Superintendent, O'Fallon Township High School District\nNo. 203, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 23,\n2023), at 1.\n\n\fDr. Darcy G. Benway\nJune 9, 2023\n\nPage 3\n\nThe District agrees that the more applicable exemption\n\nunder 5 ILCS 120/2(c) to enter closed session related to student\ndiscipline would have been exemption ( 9); however, using\n\nexemption (10) \"… other matters relating to individual students\"\nwould also be an allowable exemption as student discipline is an\n\nindividual student matter. Again, in efforts to be transparent to the\npublic, OTHS clearly identified each meeting' s purpose on the\n\nagenda as student discipline. The District does not believe it is in\nviolation of the Open Meetings Act, as the public is clearly made\n\naware of the purpose of the meeting and the Board of Education. in\neach instance, entered closed session under an allowable\n\nexemption of the Open Meetings Act.\nMoving forward, OTHS will use exemption \"( 9) student\ndisciplinary cases\" for closed sessions specific to student\n\ndiscipline.[8]\nIn reply,\n\nargued that exceptions 2(c)(9) and 2(c)(10) are distinct from\n\neach other for a reason, particularly allowing the public to understand the nature of the particular\nclosed session discussions being held.\nSections 2(c)( 9) and 2(c)( 10) of OMA are not equally permissible grounds for\n\nentering closed session to discuss student disciplinary cases. It is well-settled that \"[ e] ach word,\nclause, and sentence of a statute must be given reasonable meaning, if possible, and should not\n\nbe rendered superfluous or meaningless.\" Board of Education v. Moore, 2021 IL 125785, ¶20,\n182 N.E.3d 94, 100 ( 2021). Interpreting section 2(c)( 10) as authorizing closed session\n\ndiscussions of student disciplinary cases would render section 2(c)(9) superfluous or\nmeaningless.\n\nIndeed, a citation to section 2(c)( 10) rather than 2(c)( 9) could lead the public to\n\nreasonably infer that the closed session related to a matter about individual students other than\ndisciplinary cases. Section 2(b) of OMA reflects that each of the exceptions to the requirement\n\nto discuss public business openly has a distinct, specific scope. Thus, while Dr. Benway's\nassertion that the Board will use section 2(c)( 9) for student disciplinary cases in the future is\n\nwelcome, the Board's claim that it properly entered into closed session pursuant to section\n2(c)( 10) at its March 13, 2023, March 29, 2023, April 13, 2023, and April 24, 2023, meetings is\n\nmistaken. This office reminds the Board to strictly construe the scope of each OMA exception in\n\n8Letter from Darcy G. Benway, Ed.D., Superintendent, O'Fallon Township High School District\nNo. 203, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 23,\n2023), at 2.\n\n\fDr. Darcy G. Benway\nJune 9, 2023\n\nPage 4\n\nthe future when determining which if any exception applies to a potential closed session\n\ndiscussion.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n76616 o 2c10 improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussions of student disciplinary cases","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76616/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 9, 2023\n\nVia electronic mail\n\nVia electronic mail\nDr. Darcy G. Benway\n\nSuperintendent\nO'Fallon Township High School District No. 203\n\n600 South Smiley Street\nO'Fallon, Illinois 62269\n\nbenwayd@oths.us\nRE: OMA Request for Review – 2023 PAC 76616\nDear\n\nand Dr. Benway:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons explained below, the Public Access\n\nBureau concludes that the Board of Education (Board) of O'Fallon Township High School\nDistrict No. 203 (\" District\" or \" OTHS\") used an incorrect exception to enter closed session\n\nduring its March 13, 2023, March 29, 2023, April 13, 2023, and April 24, 2023, meetings.\nOn May 15, 2023,\n\nsubmitted a Request for Review alleging that\n\nthe Board cited an incorrect exception for entering into closed session on March 13, 2023, March\n\n29, 2023, April 13, 2023, and April 24, 2023. He alleged that although the Board's meeting\nminutes allude to entering closed session pursuant to section 2(c)(10) of OMA, 1 the context\n\nindicates that the true basis was disciplinary cases under section 2(c)(9) of OMA.2\n15 ILCS 120/2(c)(10) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n25 ILCS 120/2(c)(9) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n\nOn May 18, 2023, this office forwarded a copy of the Request for Review to\n\nSuperintendent Darcy G. Benway on behalf of the Board and requested unredacted copies of the\nclosed session minutes of the Board's March 13, 2023, March 29, 2023, April 13, 2023, and\n\nApril 24, 2023, meetings for this office's confidential review. This officer also requested a\nwritten response to the allegation that the Board did not cite in open session, or sufficiently\n\nrecord in the meeting minutes, the correct OMA exception authorizing the closed sessions. On\nMay 23, 2023, Dr. Benway provided a written response but not copies of the closed session\n\nminutes, explaining that they concern only student conduct and discipline. On May 25, 2023,\nsubmitted a reply.\nDETERMINATION\nOMA is intended \" to ensure that the actions of public bodies be taken openly and\n\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Accordingly, section\n2(a) of OMA3 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA.4 The\nsection 2(c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 5 Sections 2(c)(9) and 2(c)(10) of OMA concern:\n9)\n\nStudent disciplinary cases.\n\n10) The placement of individual students in special education\nprograms and other matters relating to individual students.\nSection 2a of OMA6 requires that \" a citation to the specific exception contained in Section 2 of\n\nthis Act which authorizes the closing of the meeting to the public shall be publicly disclosed at\nthe time of the vote and shall be recorded and entered into the minutes of the meeting.\"\nIn the Board's response to this office, Dr. Benway stated that \" the District\n\nidentified the purpose of the Special Meetings on each agenda as 'Student Discipline.'\" 7 She\nasserted:\n35 ILCS 120/2(a) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n45 ILCS 120/2(c) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n55 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.\n65 ILCS 120/2a (West 2020).\n7 Letter from Darcy G. Benway, Ed.D., Superintendent, O'Fallon Township High School District\nNo. 203, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 23,\n\nThe District agrees that the more applicable exemption\n\nunder 5 ILCS 120/2(c) to enter closed session related to student\ndiscipline would have been exemption (9); however, using\n\nexemption (10) \"… other matters relating to individual students\"\nwould also be an allowable exemption as student discipline is an\n\nindividual student matter. Again, in efforts to be transparent to the\npublic, OTHS clearly identified each meeting's purpose on the\n\nagenda as student discipline. The District does not believe it is in\nviolation of the Open Meetings Act, as the public is clearly made\n\naware of the purpose of the meeting and the Board of Education. in\neach instance, entered closed session under an allowable\n\nexemption of the Open Meetings Act.\nMoving forward, OTHS will use exemption \"(9) student\ndisciplinary cases\" for closed sessions specific to student\n\ndiscipline.[8]\nIn reply,\n\nargued that exceptions 2(c)(9) and 2(c)(10) are distinct from\n\neach other for a reason, particularly allowing the public to understand the nature of the particular\nclosed session discussions being held.\nSections 2(c)(9) and 2(c)(10) of OMA are not equally permissible grounds for\n\nentering closed session to discuss student disciplinary cases. It is well-settled that \"[ e] ach word,\nclause, and sentence of a statute must be given reasonable meaning, if possible, and should not\n\nbe rendered superfluous or meaningless.\" Board of Education v. Moore, 2021 IL 125785, ¶20,\n182 N.E.3d 94, 100 (2021). Interpreting section 2(c)(10) as authorizing closed session\n\ndiscussions of student disciplinary cases would render section 2(c)(9) superfluous or\nmeaningless.\n\nIndeed, a citation to section 2(c)(10) rather than 2(c)(9) could lead the public to\n\nreasonably infer that the closed session related to a matter about individual students other than\ndisciplinary cases. Section 2(b) of OMA reflects that each of the exceptions to the requirement\n\nto discuss public business openly has a distinct, specific scope. Thus, while Dr. Benway's\nassertion that the Board will use section 2(c)(9) for student disciplinary cases in the future is\n\nwelcome, the Board's claim that it properly entered into closed session pursuant to section\n2(c)(10) at its March 13, 2023, March 29, 2023, April 13, 2023, and April 24, 2023, meetings is\n\nmistaken. This office reminds the Board to strictly construe the scope of each OMA exception in\n\n8 Letter from Darcy G. Benway, Ed.D., Superintendent, O'Fallon Township High School District\nNo. 203, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 23,\n\nthe future when determining which if any exception applies to a potential closed session\n\ndiscussion.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\n\nPublic Access Bureau\n76616 o 2c10 improper sd"}
{"id":1422,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-06-12","case_number":null,"request_numbers":["76838"],"title":"Township High School District 214 did not violate Open Meetings Act by emergency meeting for storm damage","filename":"76838, issued June 12, 2023.pdf","rel_path":null,"word_count":1518,"summary":"A requester alleged that Township High School District 214 improperly held an emergency meeting to approve storm damage repairs. The PAC determined that the emergency meeting was justified by exigent circumstances and closed the file.","plain_summary":"A citizen complained that a school board held an emergency meeting without a valid reason. The Attorney General's office reviewed the situation and found that the meeting was necessary due to urgent storm damage to a school roof. Therefore, the board acted within the law and no further action will be taken.","holding":"The District did not violate the Open Meetings Act by calling an emergency meeting to address urgent storm damage repairs.","legal_question":"Whether a public body's emergency meeting to approve funds for storm damage repairs met the 'bona fide emergency' exception under section 2.02(a) of the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(a)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Township High School District 214 Board of Education","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"emergency meeting","subject_description":"The legality of an emergency school board meeting convened to approve emergency funding for storm-related roof repairs.","ocr_status":"ok","ocr_quality":93.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/emergency-meetings/76838, issued June 12, 2023.pdf","sha256":"c0c68a2f113852b2461508737aeb4ca9d850e42c5d795ac9916b0682b9d5c66e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["emergency meeting","school board","Open Meetings Act","public notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAMERAOUL\nATTORNEY GENERAL\n\nJune 12, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review - 2023 PAC 76838\nDeru·-:\nThis detennination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(b) (West 2020)). For the reasons set fo1th below, the Public Access\nBureau concludes that no further action in this matter is wrurnnted.\nOn June 5, 2023, this office received your Request for Review in which you\nalleged that that the Township High School District 214 (District) Boru·d of Education (Boru·d)\ndid not have a valid basis for holding an emergency meeting on April 6, 2023, at 8:30 a.m. to\napprove the expenditure of funds to repair storm damage on the roof of one of the District's high\nschools. You noted that the Board posted the notice and agenda for the April 6, 2023,\nemergency meeting on April 5, 2023.\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989). OMA provides that it is the \"public policy of this State that its\ncitizens shall be given advance notice of and the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in anyway.\" 5 ILCS 120/1 (West 2020).\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides that \"[p]ublic notice of any\nspecial meeting except a meeting held in the event of a bona fide emergency, or of any\nrescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours\nbefore such meeting[.]\" (Emphasis added.)\nOMA does not define the phrase \"bona fide emergency,\" and no Illinois appellate\ncomt has addressed the issue of what constitutes a bonafide emergency for pmposes of section\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fJune 12, 2023\nPage 2\n\n2.02(a). An \"emergency\" is defined as \"an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 (Emphasis added.) Based on this definition, the\nPublic Access Bureau has previously determined that \"unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body's\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \"bona fide emergency\" under section 2.02(a), partly because the \"situation\nthat precipitated\" the meeting \"was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass'n v. South Texas Sports, 720 S.W.2d 551,\n557 (Tex. App. 1986) (\"The mere necessity for quick action does not constitute an emergency\nwhere the situation calling for such action is one which reasonably should have been\nanticipated.\").\nThe materials you submitted with your Request for Review indicated that on\nFriday, March 31, 2023, a storm damaged the high school roof. It appears that a roof contractor\ninspected the damage on Monday, April 3, 2023; on Tuesday, April 4, 2023, at 5:38 p.m., the\ncontractor e-mailed a proposed plan and an estimate to complete the emergency repairs. The\ncontractor estimated the cost would be between $125,000-$130,000 and explained that work\nneeded to begin in the morning on Thursday, April 6, 2023, \"to review staging and the work\narea. * * * Roofing site mobilization is planned for 4:00pm on Thursday and the goal is to be off\nthe roof by the time it gets dark.\" 2 The roofing removal and replacement work was scheduled to\nbegin on Friday, April 7, 2023, because that was a scheduled non-attendance day for the District.\nAccording to an e-mail from the District's Associate Superintendent of Administrative Services\n(Associate Superintendent) provided with your Request for Review, on Wednesday, April 5,\n2023,\n[t]he business office informed the operations team that a special\nboard approval would be necessary due to the amount of funding\nneeded for the emergency repairs. Additionally, legal counsel was\nconsulted to ensure we complied with applicable laws. Due to the\nimmediate and emergency nature of the repair, the emergency\nexpenditure was found to be exempt from public bidding pursuant\nto Section 5/10 - 20.21 (xiv) of the School Code. The Emergency\n\nWEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 741 (1993).\n\n1\n\n2\n\nE-mail from Jay Tulley, Riddiford Roofing Co., to Aneta [Mistak] (April 4, 2023).\n\n\fJune 12, 2023\nPage 3\n\nBoard meeting was posted as soon as a quorum, place and time\nwas secured in accordance with the Open Meetings Act.[ 3 J\nOn Wednesday, April 5, 2023, the Board posted notice for an April 6, 2023, emergency meeting\nto approve the funds to pay for the roofrepair. The meeting occurred on April 6, 2023, at 8:30\na.m. and the Board approved the expenditure offunds.4\nReferencing the e-mail provided by the Associate Superintendent, you allege:\nIt is clear that, as ofWednesday, April 5th, there was not\nsufficient time for a 48 hour notice prior to starting work on\nThursday. However, by Monday or at the latest Tuesday, there\nwas enough time. I do not find it credible for [the Associate\nSuperintendent] to list as a justification for the delay, the need for\nthe operations team to be informed by the business department,\nabout basic regulations for approving contracts. (Emphasis in\noriginal.)[ 5 l\nWhile you acknowledge that the District did not know the cost ofthe roofrepair until Tuesday\nevening, you appear to argue that the District squandered time with unnecessary administrative\ndelays. You imply that the District and Board should have anticipated that the Board would be\nrequired to approve the costs and therefore, should have posted a meeting with the usual 48-hour\nnotice period.\nBased on the information provided in your Request for Review, the March 31,\n2023, storm created an emergency need for extensive roofrepairs. 6 The District appears to have\nacted quickly to contact a contractor to inspect the damage on Monday, April 3, 2023; on\nTuesday, April 4, 2023, it learned the extent ofthe damage, the cost, and that work needed to\nE-mail from Chris Uhle, Associate Superintendent of Administrative Services, Township High\nSchool District 214, to [Tim] Bums (April 13, 2023).\n3\n\n4\n\nTownship High School District 214, Board of Education, Emergency Meeting, April 6, 2023,\n\nMinutes 1.\n5\n\nE-mail from\n\nto [Public Access] Staff(June 3, 2023).\n\nAccording to the April 6, 2023, emergency meeting minutes, the contractor \"said a patch repair\nwill not work this time and a temporary roof needs to be installed to minimize further detriment to the facility. The\ngravel, membrane, and insulation will be removed and a new temporary roof will be installed. Approximately 8,000\nsquare feet of roof will be replaced.\" Township High School District 214, Board of Education, Emergency Meeting,\nApril 6, 2023, Minutes 1.\n6\n\n\fJune 12, 2023\nPage 4\n\nbegin on Thursday, April 6, 2023. These events were unanticipated and required the Board's\naction, but it was not unreasonable for the Board to have waited to post notice for a meeting until\nit had details from the contractor on the estimated cost and work plan. Once the District had the\ndetails of the plan that required Board approval, there were fewer than 48 hours before the\ncontractor had to begin work; therefore, it was essential for the Board to have called an\nemergency meeting to approve the funding. There is no indication that the District or the Board\nfailed to act diligently and that lack of diligence created the situation requiring the emergency\nmeeting. Accordingly, under the exigent circumstances presented by the March 31, 2023, storm\nand the short period of time available to repair the resulting roof damage, this office concludes\nthat the Board did not violate OMA by calling an emergency meeting for April 6, 2023, at 8:30\na.m. Because your Request for Review did not present a summary of facts to support an\nallegation that the Board violated OMA, this office will take no further action on this matter. 7\nThis letter serves to close this file. If you have questions, please contact me at\nlaura.harter@ilag.gov.\nVery truly yours,\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n76838 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Alva Kreutzer\nPresident, Board of Education\nTownship High School District 214\n2121 South Goebbert Road\nArlington Heights, Illinois 60005\nalva.kreutzer@d214.org\n\n7 5 ILCS 120/3.S(a) (West 2020) (\"The request for review* * * must include a summary of the\n\nfacts supporting the allegation.\").\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An emergency school board meeting for storm-damage funding","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76838/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAMERAOUL\nATTORNEY GENERAL\n\nJune 12, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review - 2023 PAC 76838\nDeru·-:\nThis detennination is issued pursuant to section 3.5(b) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(b) (West 2020)). For the reasons set fo1th below, the Public Access\nBureau concludes that no further action in this matter is wrurnnted.\nOn June 5, 2023, this office received your Request for Review in which you\nalleged that that the Township High School District 214 (District) Boru·d of Education (Boru·d)\ndid not have a valid basis for holding an emergency meeting on April 6, 2023, at 8:30 a.m. to\napprove the expenditure of funds to repair storm damage on the roof of one of the District's high\nschools. You noted that the Board posted the notice and agenda for the April 6, 2023,\nemergency meeting on April 5, 2023.\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989). OMA provides that it is the \"public policy of this State that its\ncitizens shall be given advance notice of and the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in anyway.\" 5 ILCS 120/1 (West 2020).\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides that \"[p]ublic notice of any\nspecial meeting except a meeting held in the event of a bona fide emergency, or of any\nrescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours\nbefore such meeting[.]\" (Emphasis added.)\nOMA does not define the phrase \"bona fide emergency,\" and no Illinois appellate\ncomt has addressed the issue of what constitutes a bonafide emergency for pmposes of section\n\n2.02(a). An \"emergency\" is defined as \"an unforeseen combination of circumstances or the\nresulting state that calls for immediate action.\" 1 (Emphasis added.) Based on this definition, the\nPublic Access Bureau has previously determined that \"unanticipated circumstances requiring\nimmediate action that would justify providing less than 48 hours' notice[ ]\" are necessary for a\nmeeting to qualify as one held in the event of a bona fide emergency. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 23656, issued May 31, 2013, at 4. In that matter, this office rejected a public body's\nassertion that an account deficit that could have resulted in the public body failing to meet\npayroll constituted a \"bona fide emergency\" under section 2.02(a), partly because the \"situation\nthat precipitated\" the meeting \"was clearly foreseeable.\" Ill. Att'y Gen. PAC Req. Rev. Ltr.\n23656, at 4; see also River Road Neighborhood Ass'n v. South Texas Sports, 720 S.W.2d 551,\n557 (Tex. App. 1986) (\"The mere necessity for quick action does not constitute an emergency\nwhere the situation calling for such action is one which reasonably should have been\nanticipated.\").\nThe materials you submitted with your Request for Review indicated that on\nFriday, March 31, 2023, a storm damaged the high school roof. It appears that a roof contractor\ninspected the damage on Monday, April 3, 2023; on Tuesday, April 4, 2023, at 5:38 p.m., the\ncontractor e-mailed a proposed plan and an estimate to complete the emergency repairs. The\ncontractor estimated the cost would be between $125,000-$130,000 and explained that work\nneeded to begin in the morning on Thursday, April 6, 2023, \"to review staging and the work\narea. * * * Roofing site mobilization is planned for 4:00pm on Thursday and the goal is to be off\nthe roof by the time it gets dark.\" 2 The roofing removal and replacement work was scheduled to\nbegin on Friday, April 7, 2023, because that was a scheduled non-attendance day for the District.\nAccording to an e-mail from the District's Associate Superintendent of Administrative Services\n(Associate Superintendent) provided with your Request for Review, on Wednesday, April 5,\n2023,\n[t]he business office informed the operations team that a special\nboard approval would be necessary due to the amount of funding\nneeded for the emergency repairs. Additionally, legal counsel was\nconsulted to ensure we complied with applicable laws. Due to the\nimmediate and emergency nature of the repair, the emergency\n\nBoard meeting was posted as soon as a quorum, place and time\nwas secured in accordance with the Open Meetings Act.[ 3 J\nOn Wednesday, April 5, 2023, the Board posted notice for an April 6, 2023, emergency meeting\nto approve the funds to pay for the roofrepair. The meeting occurred on April 6, 2023, at 8:30\na.m. and the Board approved the expenditure offunds.4\nReferencing the e-mail provided by the Associate Superintendent, you allege:\nIt is clear that, as ofWednesday, April 5th, there was not\nsufficient time for a 48 hour notice prior to starting work on\nThursday. However, by Monday or at the latest Tuesday, there\nwas enough time. I do not find it credible for [the Associate\nSuperintendent] to list as a justification for the delay, the need for\nthe operations team to be informed by the business department,\nabout basic regulations for approving contracts. (Emphasis in\noriginal.)[ 5 l\nWhile you acknowledge that the District did not know the cost ofthe roofrepair until Tuesday\nevening, you appear to argue that the District squandered time with unnecessary administrative\ndelays. You imply that the District and Board should have anticipated that the Board would be\nrequired to approve the costs and therefore, should have posted a meeting with the usual 48-hour\nnotice period.\nBased on the information provided in your Request for Review, the March 31,\n2023, storm created an emergency need for extensive roofrepairs. 6 The District appears to have\nacted quickly to contact a contractor to inspect the damage on Monday, April 3, 2023; on\nTuesday, April 4, 2023, it learned the extent ofthe damage, the cost, and that work needed to\nE-mail from Chris Uhle, Associate Superintendent of Administrative Services, Township High\nSchool District 214, to [Tim] Bums (April 13, 2023).\n3\n\n4\n\nTownship High School District 214, Board of Education, Emergency Meeting, April 6, 2023,\n\nMinutes 1.\n5\n\nE-mail from\n\nto [Public Access] Staff(June 3, 2023).\n\nAccording to the April 6, 2023, emergency meeting minutes, the contractor \"said a patch repair\nwill not work this time and a temporary roof needs to be installed to minimize further detriment to the facility. The\ngravel, membrane, and insulation will be removed and a new temporary roof will be installed. Approximately 8,000\nsquare feet of roof will be replaced.\" Township High School District 214, Board of Education, Emergency Meeting,\n\nbegin on Thursday, April 6, 2023. These events were unanticipated and required the Board's\naction, but it was not unreasonable for the Board to have waited to post notice for a meeting until\nit had details from the contractor on the estimated cost and work plan. Once the District had the\ndetails of the plan that required Board approval, there were fewer than 48 hours before the\ncontractor had to begin work; therefore, it was essential for the Board to have called an\nemergency meeting to approve the funding. There is no indication that the District or the Board\nfailed to act diligently and that lack of diligence created the situation requiring the emergency\nmeeting. Accordingly, under the exigent circumstances presented by the March 31, 2023, storm\nand the short period of time available to repair the resulting roof damage, this office concludes\nthat the Board did not violate OMA by calling an emergency meeting for April 6, 2023, at 8:30\na.m. Because your Request for Review did not present a summary of facts to support an\nallegation that the Board violated OMA, this office will take no further action on this matter. 7\nThis letter serves to close this file. If you have questions, please contact me at\nlaura.harter@ilag.gov.\nVery truly yours,\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n76838 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Alva Kreutzer\nPresident, Board of Education\nTownship High School District 214\n2121 South Goebbert Road\nArlington Heights, Illinois 60005\nalva.kreutzer@d214.org\n\n7 5 ILCS 120/3.S(a) (West 2020) (\"The request for review* * * must include a summary of the\n\nfacts supporting the allegation.\")."}
{"id":1423,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-11-21","case_number":null,"request_numbers":["76914","76915"],"title":"Village of Winnetka OMA closed meeting complaint timeliness undetermined","filename":"76914 76915, issued November 21, 2023.pdf","rel_path":null,"word_count":3185,"summary":"A requester alleged that the Village of Winnetka violated the Open Meetings Act by holding improper closed sessions, but the PAC determined the request was untimely.","plain_summary":"A citizen alleged that a village council held illegal closed sessions concerning a land transaction. The PAC concluded that the request for review was filed too late because the relevant information had been publicly disclosed in meeting materials and recordings more than 60 days before the request. The PAC therefore lacked authority to take further action and closed the matter.","holding":"","legal_question":"Whether a Request for Review filed under the Open Meetings Act is timely when submitted more than 60 days after the complainant became aware of the alleged violation.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Winnetka","requesting_party":null,"pac_outcome":"Closed due to untimeliness","pac_law_type":null,"subject_category":"closed session","subject_description":"The requester alleged the Village Council held improper closed session discussions regarding a pathway vacation ordinance.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/Reasonable-diligence-if-did-not-discover-violation-within-60-days/76914 76915, issued November 21, 2023.pdf","sha256":"7d45a0ef781fa6ad467233c0d5a7899d2a1e3a0b13d210ce129203c3dd770db8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","timeliness","statute of limitations","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Chris Rintz\n\nPresident, Village Council\nVillage of Winnetka\n\n510 Green Bay Road\nWinnetka, Illinois 60093\n\nCRintz@Winnetka.org\nRE: OMA Request for Review – 2023 PAC 76914; 2023 PAC 76915\nDear\n\nand Mr. Rintz:\nThis determination is issued pursuant to section 3.5 of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5 ( West 2022)).\nBACKGROUND\nOn June 11, 2023,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Village Council (Council) of the Village of Winnetka\nVillage) violated OMA by holding improper closed session discussions at its September 21,\n\n2021, and April 12, 2022, meetings.\n\nstated that he became aware that the\n\nCouncil held closed sessions at the two meetings on June 5, 2023, and that he learned of those\n\nclosed sessions from reviewing meeting materials for another Council meeting. Specifically, he\nstated that the \" Council met in open session on November 1, 2022. At this meeting, the agenda\n\nincluded an item: 'Ordinance No. M-14-2022: Bertling Lane, Hill Road, and Woodland Avenue\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 2\n\nPathway Vacation (Public Hearing & Introduction).'\" 1\n\ndirected this office's\n\nattention to a posted recording of the open session portion of that meeting and stated:\nT] he Assistant Director of Community Development reviewed the\n\nagenda item. His first statement was that \"this matter has been\ndiscussed by the Council previously,\" and he then referenced the\n\ndates of the two closed sessions. The Assistant Director then\nstated: \" The Council went into closed session to discuss the\n\npossible sale of land owned by the Village.\" The Assistant\nDirector then described the Council' s actions in closed session,\n\nincluding a review of the property's history, and direction by the\nCouncil to staff to contact other adjoining property owners.[ 2]\nalleged, based on the Assistant Director' s remarks, that the Board did not limit\n\nits closed session discussions concerning the specified land to issues within the scope of the\nexception in section 2(c)( 6) of OMA3 cited in the Board' s minutes as its bases for closing, in part,\n\nthe September 21, 2021, and April 12, 2022, meetings. He noted that an \" Agenda Item\nExecutive Summary\" included in the agenda packet also stated that the Council held closed\n\nsessions at those two meetings to discuss the specified land.4\nfurther asserted that he did not discover facts concerning the\n\nalleged violations within 60 days of when they occurred despite exercising reasonable diligence.\nHe argued, in relevant part:\nThis matter was \" discussed\" in one open session, for\n\napproximately 10 minutes. However, it was not evident to me,\nuntil I expended significant effort in reviewing the recording of the\n\nmeeting, that all substantive discussion and consideration of this\nvacation of public land had taken place behind closed doors. This\n\nincluded the decision to vacate this public land below its fair\n\n1Letter from\nJune 11, 2023), at 1.\n\nto Public Access Counselor, Office of the Attorney General\n\n2Letter from\nJune 11, 2023), at 2.\n\nto Public Access Counselor, Office of the Attorney General\n\n35 ILCS 120/2(c)(6) (West 2022).\n4Letter from\nJune 11, 2023), at 2.\n\nto Public Access Counselor, Office of the Attorney General\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 3\n\nmarket value, and a suggestion by Council that doing so was in the\npublic interest.\"\nI only became aware of the improper closure of meeting\n\nafter an in depth review of Council records. There was no\nnewspaper\" account of this action. There was no indication in\n\nVillage agendas or minutes that the substantive discussion on this\ntopic had taken place in prior closed session.[ 5]\nOn June 21, 2023, this office forwarded a copy of the Request for Review to the\n\nCouncil and asked it to provide a written response addressing\n\ns assertion that\n\nhis Requests for Review are timely because he did not discover the alleged OMA violations\n\nconcerning the September 21, 2021, and April 12, 2022, meetings within 60 days of when they\noccurred despite exercising reasonable diligence. This office asked the Council to include a\n\ndescription of when/where the meeting materials for the Council's November 1, 2022, meeting\nwere made available to the public. On June 30, 2023, this office received the requested response.\n\nOn July 5, 2023, this office forwarded a copy of the Council's response to\n\nhe\n\nreplied on July 11, 2023.\nOn October 16, 2023, this office asked the Village to issue a supplemental\n\nresponse addressing the substance of the allegations and to provide copies of the closed session\nminutes and verbatim recordings. Counsel for the Village responded by reiterating that the\n\nRequests for Review were untimely and by asserting \"that it would set an unfortunate precedent\nand cause an unnecessary time and expense to proceed further when, on its face, the claims here\n\nare stale.\" 6\n\nreplied that OMA \"does not authorize your office to make a\n\ndetermination on the validity of a request in isolation from a final determination of the request\n\nitself.\" 7 He also stated that this office \"appears to have determined that my request was filed in a\ntimely manner. I believe this is correct.\" 8 This office, however, did not make such a\n\ndetermination and did not intend to signal that it had done so by requesting a supplemental\nresponse from the Village.\nThe procedures for processing a Request for Review in section 3.5 of OMA do\n\n5Letter from\nJune 11, 2023), at 4.\n\nto Public Access Counselor, Office of the Attorney General\n\n6E- mail from Benjamin L. Schuster, Elrod Friedman, to [Teresa] Lim (October 20, 2023 ).\n7E- mail from\n\nto [Teresa] Lim (November 7, 2023).\n\n8E- mail from\n\nto [Teresa] Lim (November 7, 2023).\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 4\n\nnot require this office to simultaneously review both the timeliness and substance of the\nallegations that underlie a Request for Review. Indeed, if a Request for Review is untimely,\n\nsection 3.5(a) of OMA does not authorize this office to review the merits. Because a\ndetermination that\n\ndid not submit a timely Request for Review would obviate\n\nthe need for the parties to expend additional resources on this matter, this office will first address\nthat threshold issue of timeliness in the interest of efficiency.\nDETERMINATION\nSection 3.5(a) of OMA9 provides:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nOMA does not define \"reasonable diligence,\" and the term has not been judicially\ndefined by an Illinois reviewing court for purposes of OMA. Black' s Law Dictionary defines\n\nreasonable diligence\" as \"[ a] fair, proper and due degree of care and activity, measured with\nreference to the particular circumstances[.]\"\n\nBlack' s Law Dictionary 412 ( 5th ed. 1979). That\n\ndefinition provides little guidance as to how attentive or persistent an individual must be to\ndiscover facts concerning an alleged violation that were not publicly disclosed within 60 days of\n\nthe alleged violation.\nIn Binding Opinion 23-004, the Attorney General considered as an initial matter\nwhether a requester who submitted his Request for Review more than 60 days after but within 2\n\nyears of the date of the alleged OMA violation had exercised reasonable diligence. Ill. Att'y\nGen. Pub. Acc. Op. No. 23- 004, issued March 27, 2023. The Attorney General reviewed the\n\nlegislative history of the \"reasonable diligence\" provision and determined that the provision\nexists to redress violations that could not reasonably have been discovered at the time they\n\noccurred. Ill. Att'y Gen. Pub. Acc. Op. No. 23-004, at 7. In that matter, this office described\nreasonable diligence\" as \" keeping up with the activities of local government through attending\n\nor viewing open meetings and reviewing the minutes of those meetings.\" Ill. Att'y Gen. Pub.\n\n95 ILCS 120/3.5(a) ( West 2022).\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 5\n\nAcc. Op. No. 23-004, at 7. This office concluded that the requester presented facts illustrating\nthat relevant information surrounding the severance agreement at issue was not evident on or\n\naround the time of the meeting. The meeting's agenda and minutes, for instance, made only\ngeneric references to a personnel report rather than any specific mention of the agreement.\n\nIll.\n\nAtt'y Gen. Pub. Acc. Op. No. 23-004, at 6. Because the requester showed reasonable diligence\nby submitting his Request for Review within 60 days after facts concerning the board' s action on\n\nthat specific agreement \" became reasonably publicly available\" through dissemination in the\nnews media, this office concluded that the submission met the requirements of section 3.5(a). Ill.\n\nAtt'y Gen. Pub. Acc. Op. No. 23-004, at 8.\nThe Council's response to this office contended that various information regarding\nthe vacation of the property at issue has been publicly available on the Village website for more\n\nthan half a year, including details of the two closed sessions. With respect to the September 21,\n2021, and April 12, 2022, meetings, the Council stated it publicly announced and documented in\n\nthe minutes that it was entering closed session \" to discuss the setting for the price for the sale of\nthe property\" pursuant to section 2(c)( 6). 10 The Council also emphasized that at the November 1,\n\n2022, meeting, the Council specifically disclosed in open session that it had discussed the\nproperty in closed session at those two prior meetings:\nDuring that meeting, the Village' s Assistant Director of\n\nCommunity Development made a presentation to the Village\nCouncil and the public, during which he expressly stated:\nThis matter has been discussed by the\n\nCouncil previously beginning in September\n2021 and April 12, 2022, where the Council\n\nwent into closed session to discuss the\npossible sale of land owned by the Village.\"\nThe Assistant Community Development Director then went on to\n\nsummarize – in detail – what was discussed during the closed\nsessions. The Village Council then considered the ordinance and\n\nvoted to approve the ordinance on first reading.[11]\n\n10Letter from Peter M. Friedman, Elrod Friedman LLP, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (June 30, 2023), at 3.\n11Letter from Peter M. Friedman, Elrod Friedman LLP, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (June 30, 2023), at 5.\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 6\n\nThe Council stated that it posted the November 1, 2022, meeting agenda and agenda packet on\nthe Village website two days before the meeting. Additionally, the Council published notice of\n\nthe meeting in a local newspaper, the Winnetka Talk, and mailed a notice to property owners who\nlived within 250 feet of the land on October 13, 2022. The Council stated it posted online the\n\nvideo recording of the meeting on November 2, 2022, and adopted the ordinance at a subsequent\nmeeting held on November 15, 2022. The Council posted online the latter meeting' s agenda and\n\nan agenda packet, which included a memorandum summarizing the prior November 1, 2022,\nmeeting discussion, online on November 11, 2022. 12 The Council argued that a person\n\nexercising reasonable diligence would have been aware of the prior closed session discussions\nconcerning the pathway by attending the November meetings, reviewing the posted recordings of\n\nthose meetings, or reviewing the posted agendas and agenda packets. Additionally, the Council\nasserted that the meeting materials \" are all posted in the most conspicuous of places on the\n\nVillage's website. The website has tabs clearly labeled under the 'Governance' tab on its\nwebsite.\" 13\nIn reply to that answer,\n\ndisputed the Council' s claim that\n\ninformation concerning the vacation of the pathway was readily available or apparent. He stated\nthat he submitted a Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2022))\n\nrequest to the Village on June 6, 2023, request seeking records related to the vacation of the land\nat issue and received some responsive records on June 15, 2023. He highlighted that the records\n\nincluded an e-mail, dated October 11, 2022, from the Assistant Director of Community\nDevelopment to one of the private property owners. The e-mail indicated that the Village was\n\nalready in communications with a private property owner prior to the November 1, 2022,\nmeeting regarding the potential transfer of ownership.\n\nmaintained that the\n\nCouncil's holding of one public meeting to discuss the vacation of the land was inadequate for\nmembers of the public to reasonably discover that the Council or Village staff had prior\n\ndiscussions regarding the matter:\nAwareness of all of the information advanced by the\nVillage hinges on, essentially, the one episode of public notice for\n\nthe open meeting regarding the property’ s vacation. While the\nVillage did post notice in a newspaper that few read, and did\n\nprovide direct notice to specific individuals (primarily those that\nhad requested the vacation of public land), the Village had spent\n12Letter from Peter M. Friedman, Elrod Friedman LLP, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (June 30, 2023), at 5.\n13Letter from Peter M. Friedman, Elrod Friedman LLP, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (June 30, 2023), at 5-6.\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 7\n\nthe prior 3 years, since the original request in 2019, carefully\navoiding any public notice or mention that it was considering the\n\nvacation of public land.[14]\nfurther argued that although the Council had announced at the two prior\nmeetings that it was entering closed sessions to discuss the \" setting of price for Village\n\nproperty,\" the public could not reasonably discern that \"property\" referred to Village land, as\nVillage ' property' is not limited to real estate[.]\" 15 He also stated that \" the Village did provide\n\ndocuments on their website, but those documents were hidden among thousands of others, on a\nwebsite platform that has been changing significantly over the last one or two years.\" 16\nHaving reviewed the information submitted by the parties, the available\n\ninformation indicates that the relevant facts concerning the closed sessions at the September 21,\n2021, and April 12, 2022, meetings became evident and were publicly available around the time\n\nof the Council's November 1, 2022, meeting. As noted above,\n\ns cited bases\n\nfor the alleged OMA violations are statements that were made in open session at that meeting,\n\nwhich was recorded and posted on the Village's website the day after the meeting. The\nNovember 1, 2022, meeting agenda and minutes identified the location of the property ( Bertling\n\nLane, Hill Road, and Woodland Avenue) and indicated that the property pertained to land by\nstating it concerned the vacation of a pathway. Members of the public who either attended that\n\nmeeting or reviewed the meeting's recording within 60 days of when it was posted would have\nlearned of the relevant facts concerning the two prior closed sessions. While it would be\n\nunreasonable to expect members of the public to physically attend all meetings of a public body,\nthe recording of the November 1, 2022, meeting and other documents concerning the pathway\n\nwere publicly available on the Village website for more than six months before\nsubmitted his Request for Review. Members of the public who were keeping up\n\nwith the activities of Village government or had a particular interest in matters related to Village\nland could have reasonably observed from the agenda that the Council planned to discuss the\n\nvacation of a specific pathway and viewed the recording of the meeting, which disclosed that the\nmatter had been discussed in closed session during the Council' s September 2021 and April 2022\n\nmeetings. In addition, the agenda packet containing the Agenda Item Executive Summary,\nwhich also indicated that the matter had been discussed in closed session at the September 2021\n\n14Letter from\nAttorney General (July 11, 2023), at 6.\n\nto Teresa Lim, Public Access Counselor [ sic], Office of the\n\n15Letter from\nAttorney General (July 11, 2023), at 4.\n\nto Teresa Lim, Public Access Counselor [ sic], Office of the\n\n16Letter from\nAttorney General (July 11, 2023), at 7.\n\nto Teresa Lim, Public Access Counselor [ sic], Office of the\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 8\n\nand April 2022 meetings, was publicly posted. This office understands\n\ns\n\nconcern that it was difficult to learn about the vacation of the pathway because the Council held\n\nonly one meeting where it discussed in open session details of the matter. OMA does not,\nhowever, require a public body to hold multiple open session discussions on an issue, and this\n\noffice's review of the Village website confirmed that the Council's meeting materials, including\nfor the November 1, 2022, meeting, are posted in the \" Governance\" section. Although meeting\n\nmaterials for recent meetings are more visible on the site and thus easier to locate, a person may\nstill search for past meetings by type of body, date, or word search. 17\nUnder these particular circumstances, this office is unable to conclude that,\n\ndespite exercising reasonable diligence, a person could not have discovered the relevant facts\nforming the basis of\n\ns Request for Review within 60 days of when that\n\ninformation was made available to the public on the Village's website. To conclude that\nexercising reasonable diligence does not include an obligation to discover within 60 days\n\ninformation disclosed in open meetings and made available in materials posted on a public\nbody' s website would invite complainants to dig through meeting materials for possible\n\nviolations long after those materials were available to the public. The reasonable diligence\nprovision was not designed for such circumstances.\n\nAccordingly, this office concludes that the\n\nRequest for Review was not timely submitted, and this office lacks the authority to take further\naction on the allegations under section 3.5(a) of OMA.\nThis letter shall serve to close this matter. If you have any questions, please\n\ncontact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n76914 76915 o 60 days mun\n\n17Village of Winnetka, Agendas & Minutes, https:// www.villageofwinnetka.org/129/AgendasMinutes (last visited November 21, 2023).\n\n\fThe Honorable Chris Rintz\nNovember 21, 2023\n\nPage 9\n\ncc:\n\nVia electronic mail\nMr. Benjamin L. Schuster\n\nAttorney for Village of Winnetka\nElrod Friedman LLP\n\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\n\nBenjamin.Schuster@ElrodFriedman.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a pathway vacation ordinance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A citizen filed a complaint claiming the Village of Winnetka held illegal closed-door meetings. The Attorney General's office began reviewing whether the complaint was filed on time, but the provided document does not include a final ruling on either the timeliness or the substance of the allegations. The document ends before any determination is reached.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76914/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Chris Rintz\n\nPresident, Village Council\nVillage of Winnetka\n\n510 Green Bay Road\nWinnetka, Illinois 60093\n\nCRintz@Winnetka.org\nRE: OMA Request for Review – 2023 PAC 76914; 2023 PAC 76915\nDear\n\nand Mr. Rintz:\nThis determination is issued pursuant to section 3.5 of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5 (West 2022)).\nBACKGROUND\nOn June 11, 2023,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Village Council (Council) of the Village of Winnetka\nVillage) violated OMA by holding improper closed session discussions at its September 21,\n\n2021, and April 12, 2022, meetings.\n\nstated that he became aware that the\n\nCouncil held closed sessions at the two meetings on June 5, 2023, and that he learned of those\n\nclosed sessions from reviewing meeting materials for another Council meeting. Specifically, he\nstated that the \" Council met in open session on November 1, 2022. At this meeting, the agenda\n\nincluded an item: 'Ordinance No. M-14-2022: Bertling Lane, Hill Road, and Woodland Avenue\n\nPathway Vacation (Public Hearing & Introduction).'\" 1\n\ndirected this office's\n\nattention to a posted recording of the open session portion of that meeting and stated:\nT] he Assistant Director of Community Development reviewed the\n\nagenda item. His first statement was that \"this matter has been\ndiscussed by the Council previously,\" and he then referenced the\n\ndates of the two closed sessions. The Assistant Director then\nstated: \" The Council went into closed session to discuss the\n\npossible sale of land owned by the Village.\" The Assistant\nDirector then described the Council's actions in closed session,\n\nincluding a review of the property's history, and direction by the\nCouncil to staff to contact other adjoining property owners.[ 2]\nalleged, based on the Assistant Director's remarks, that the Board did not limit\n\nits closed session discussions concerning the specified land to issues within the scope of the\nexception in section 2(c)(6) of OMA3 cited in the Board's minutes as its bases for closing, in part,\n\nthe September 21, 2021, and April 12, 2022, meetings. He noted that an \" Agenda Item\nExecutive Summary\" included in the agenda packet also stated that the Council held closed\n\nsessions at those two meetings to discuss the specified land.4\nfurther asserted that he did not discover facts concerning the\n\nalleged violations within 60 days of when they occurred despite exercising reasonable diligence.\nHe argued, in relevant part:\nThis matter was \" discussed\" in one open session, for\n\napproximately 10 minutes. However, it was not evident to me,\nuntil I expended significant effort in reviewing the recording of the\n\nmeeting, that all substantive discussion and consideration of this\nvacation of public land had taken place behind closed doors. This\n\nincluded the decision to vacate this public land below its fair\n\n1 Letter from\nJune 11, 2023), at 1.\n\nto Public Access Counselor, Office of the Attorney General\n\n2 Letter from\nJune 11, 2023), at 2.\n\nmarket value, and a suggestion by Council that doing so was in the\npublic interest.\"\nI only became aware of the improper closure of meeting\n\nafter an in depth review of Council records. There was no\nnewspaper\" account of this action. There was no indication in\n\nVillage agendas or minutes that the substantive discussion on this\ntopic had taken place in prior closed session.[ 5]\nOn June 21, 2023, this office forwarded a copy of the Request for Review to the\n\nCouncil and asked it to provide a written response addressing\n\ns assertion that\n\nhis Requests for Review are timely because he did not discover the alleged OMA violations\n\nconcerning the September 21, 2021, and April 12, 2022, meetings within 60 days of when they\noccurred despite exercising reasonable diligence. This office asked the Council to include a\n\ndescription of when/where the meeting materials for the Council's November 1, 2022, meeting\nwere made available to the public. On June 30, 2023, this office received the requested response.\n\nOn July 5, 2023, this office forwarded a copy of the Council's response to\n\nhe\n\nreplied on July 11, 2023.\nOn October 16, 2023, this office asked the Village to issue a supplemental\n\nresponse addressing the substance of the allegations and to provide copies of the closed session\nminutes and verbatim recordings. Counsel for the Village responded by reiterating that the\n\nRequests for Review were untimely and by asserting \"that it would set an unfortunate precedent\nand cause an unnecessary time and expense to proceed further when, on its face, the claims here\n\nare stale.\" 6\n\nreplied that OMA \"does not authorize your office to make a\n\ndetermination on the validity of a request in isolation from a final determination of the request\n\nitself.\" 7 He also stated that this office \"appears to have determined that my request was filed in a\ntimely manner. I believe this is correct.\" 8 This office, however, did not make such a\n\ndetermination and did not intend to signal that it had done so by requesting a supplemental\nresponse from the Village.\nThe procedures for processing a Request for Review in section 3.5 of OMA do\n\n5 Letter from\nJune 11, 2023), at 4.\n\nto Public Access Counselor, Office of the Attorney General\n\nnot require this office to simultaneously review both the timeliness and substance of the\nallegations that underlie a Request for Review. Indeed, if a Request for Review is untimely,\n\nsection 3.5(a) of OMA does not authorize this office to review the merits. Because a\ndetermination that\n\ndid not submit a timely Request for Review would obviate\n\nthe need for the parties to expend additional resources on this matter, this office will first address\nthat threshold issue of timeliness in the interest of efficiency.\nDETERMINATION\nSection 3.5(a) of OMA9 provides:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nOMA does not define \"reasonable diligence,\" and the term has not been judicially\ndefined by an Illinois reviewing court for purposes of OMA. Black's Law Dictionary defines\n\nreasonable diligence\" as \"[ a] fair, proper and due degree of care and activity, measured with\nreference to the particular circumstances[.]\"\n\nBlack's Law Dictionary 412 (5th ed. 1979). That\n\ndefinition provides little guidance as to how attentive or persistent an individual must be to\ndiscover facts concerning an alleged violation that were not publicly disclosed within 60 days of\n\nthe alleged violation.\nIn Binding Opinion 23-004, the Attorney General considered as an initial matter\nwhether a requester who submitted his Request for Review more than 60 days after but within 2\n\nyears of the date of the alleged OMA violation had exercised reasonable diligence. Ill. Att'y\nGen. Pub. Acc. Op. No. 23- 004, issued March 27, 2023. The Attorney General reviewed the\n\nlegislative history of the \"reasonable diligence\" provision and determined that the provision\nexists to redress violations that could not reasonably have been discovered at the time they\n\noccurred. Ill. Att'y Gen. Pub. Acc. Op. No. 23-004, at 7. In that matter, this office described\nreasonable diligence\" as \" keeping up with the activities of local government through attending\n\nor viewing open meetings and reviewing the minutes of those meetings.\" Ill. Att'y Gen. Pub.\n\nAcc. Op. No. 23-004, at 7. This office concluded that the requester presented facts illustrating\nthat relevant information surrounding the severance agreement at issue was not evident on or\n\naround the time of the meeting. The meeting's agenda and minutes, for instance, made only\ngeneric references to a personnel report rather than any specific mention of the agreement.\n\nIll.\n\nAtt'y Gen. Pub. Acc. Op. No. 23-004, at 6. Because the requester showed reasonable diligence\nby submitting his Request for Review within 60 days after facts concerning the board's action on\n\nthat specific agreement \" became reasonably publicly available\" through dissemination in the\nnews media, this office concluded that the submission met the requirements of section 3.5(a). Ill.\n\nAtt'y Gen. Pub. Acc. Op. No. 23-004, at 8.\nThe Council's response to this office contended that various information regarding\nthe vacation of the property at issue has been publicly available on the Village website for more\n\nthan half a year, including details of the two closed sessions. With respect to the September 21,\n2021, and April 12, 2022, meetings, the Council stated it publicly announced and documented in\n\nthe minutes that it was entering closed session \" to discuss the setting for the price for the sale of\nthe property\" pursuant to section 2(c)(6). 10 The Council also emphasized that at the November 1,\n\n2022, meeting, the Council specifically disclosed in open session that it had discussed the\nproperty in closed session at those two prior meetings:\nDuring that meeting, the Village's Assistant Director of\n\nCommunity Development made a presentation to the Village\nCouncil and the public, during which he expressly stated:\nThis matter has been discussed by the\n\nCouncil previously beginning in September\n2021 and April 12, 2022, where the Council\n\nwent into closed session to discuss the\npossible sale of land owned by the Village.\"\nThe Assistant Community Development Director then went on to\n\nsummarize – in detail – what was discussed during the closed\nsessions. The Village Council then considered the ordinance and\n\nThe Council stated that it posted the November 1, 2022, meeting agenda and agenda packet on\nthe Village website two days before the meeting. Additionally, the Council published notice of\n\nthe meeting in a local newspaper, the Winnetka Talk, and mailed a notice to property owners who\nlived within 250 feet of the land on October 13, 2022. The Council stated it posted online the\n\nvideo recording of the meeting on November 2, 2022, and adopted the ordinance at a subsequent\nmeeting held on November 15, 2022. The Council posted online the latter meeting's agenda and\n\nan agenda packet, which included a memorandum summarizing the prior November 1, 2022,\nmeeting discussion, online on November 11, 2022. 12 The Council argued that a person\n\nexercising reasonable diligence would have been aware of the prior closed session discussions\nconcerning the pathway by attending the November meetings, reviewing the posted recordings of\n\nthose meetings, or reviewing the posted agendas and agenda packets. Additionally, the Council\nasserted that the meeting materials \" are all posted in the most conspicuous of places on the\n\nVillage's website. The website has tabs clearly labeled under the 'Governance' tab on its\nwebsite.\" 13\nIn reply to that answer,\n\ndisputed the Council's claim that\n\ninformation concerning the vacation of the pathway was readily available or apparent. He stated\nthat he submitted a Freedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. (West 2022))\n\nrequest to the Village on June 6, 2023, request seeking records related to the vacation of the land\nat issue and received some responsive records on June 15, 2023. He highlighted that the records\n\nincluded an e-mail, dated October 11, 2022, from the Assistant Director of Community\nDevelopment to one of the private property owners. The e-mail indicated that the Village was\n\nalready in communications with a private property owner prior to the November 1, 2022,\nmeeting regarding the potential transfer of ownership.\n\nmaintained that the\n\nCouncil's holding of one public meeting to discuss the vacation of the land was inadequate for\nmembers of the public to reasonably discover that the Council or Village staff had prior\n\ndiscussions regarding the matter:\nAwareness of all of the information advanced by the\nVillage hinges on, essentially, the one episode of public notice for\n\nthe open meeting regarding the property’ s vacation. While the\nVillage did post notice in a newspaper that few read, and did\n\nprovide direct notice to specific individuals (primarily those that\n\nthe prior 3 years, since the original request in 2019, carefully\navoiding any public notice or mention that it was considering the\n\nvacation of public land.[14]\nfurther argued that although the Council had announced at the two prior\nmeetings that it was entering closed sessions to discuss the \" setting of price for Village\n\nproperty,\" the public could not reasonably discern that \"property\" referred to Village land, as\nVillage ' property' is not limited to real estate[.]\" 15 He also stated that \" the Village did provide\n\ndocuments on their website, but those documents were hidden among thousands of others, on a\nwebsite platform that has been changing significantly over the last one or two years.\" 16\nHaving reviewed the information submitted by the parties, the available\n\ninformation indicates that the relevant facts concerning the closed sessions at the September 21,\n2021, and April 12, 2022, meetings became evident and were publicly available around the time\n\nof the Council's November 1, 2022, meeting. As noted above,\n\ns cited bases\n\nfor the alleged OMA violations are statements that were made in open session at that meeting,\n\nwhich was recorded and posted on the Village's website the day after the meeting. The\nNovember 1, 2022, meeting agenda and minutes identified the location of the property (Bertling\n\nLane, Hill Road, and Woodland Avenue) and indicated that the property pertained to land by\nstating it concerned the vacation of a pathway. Members of the public who either attended that\n\nmeeting or reviewed the meeting's recording within 60 days of when it was posted would have\nlearned of the relevant facts concerning the two prior closed sessions. While it would be\n\nunreasonable to expect members of the public to physically attend all meetings of a public body,\nthe recording of the November 1, 2022, meeting and other documents concerning the pathway\n\nwere publicly available on the Village website for more than six months before\nsubmitted his Request for Review. Members of the public who were keeping up\n\nwith the activities of Village government or had a particular interest in matters related to Village\nland could have reasonably observed from the agenda that the Council planned to discuss the\n\nvacation of a specific pathway and viewed the recording of the meeting, which disclosed that the\nmatter had been discussed in closed session during the Council's September 2021 and April 2022\n\nmeetings. In addition, the agenda packet containing the Agenda Item Executive Summary,\nwhich also indicated that the matter had been discussed in closed session at the September 2021\n\n14 Letter from\nAttorney General (July 11, 2023), at 6.\n\nto Teresa Lim, Public Access Counselor [ sic], Office of the\n\n15 Letter from\n\nand April 2022 meetings, was publicly posted. This office understands\n\ns\n\nconcern that it was difficult to learn about the vacation of the pathway because the Council held\n\nonly one meeting where it discussed in open session details of the matter. OMA does not,\nhowever, require a public body to hold multiple open session discussions on an issue, and this\n\noffice's review of the Village website confirmed that the Council's meeting materials, including\nfor the November 1, 2022, meeting, are posted in the \" Governance\" section. Although meeting\n\nmaterials for recent meetings are more visible on the site and thus easier to locate, a person may\nstill search for past meetings by type of body, date, or word search. 17\nUnder these particular circumstances, this office is unable to conclude that,\n\ndespite exercising reasonable diligence, a person could not have discovered the relevant facts\nforming the basis of\n\ns Request for Review within 60 days of when that\n\ninformation was made available to the public on the Village's website. To conclude that\nexercising reasonable diligence does not include an obligation to discover within 60 days\n\ninformation disclosed in open meetings and made available in materials posted on a public\nbody's website would invite complainants to dig through meeting materials for possible\n\nviolations long after those materials were available to the public. The reasonable diligence\nprovision was not designed for such circumstances.\n\nAccordingly, this office concludes that the\n\nRequest for Review was not timely submitted, and this office lacks the authority to take further\naction on the allegations under section 3.5(a) of OMA.\nThis letter shall serve to close this matter. If you have any questions, please\n\ncontact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n76914 76915 o 60 days mun\n\n17 Village of Winnetka, Agendas & Minutes, https:// www.villageofwinnetka.org/129/AgendasMinutes (last visited November 21, 2023).\n\ncc:\n\nVia electronic mail\nMr. Benjamin L. Schuster\n\nAttorney for Village of Winnetka\nElrod Friedman LLP\n\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\n\nBenjamin.Schuster@ElrodFriedman.com"}
{"id":1424,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-07-14","case_number":null,"request_numbers":["77191"],"title":"City of Washington City Council advised on audibility requirements under Open Meetings Act","filename":"77191, issued July 14, 2023.pdf","rel_path":null,"word_count":1341,"summary":"A requester alleged that the City of Washington City Council violated the Open Meetings Act because its in-person meetings were not sufficiently audible to the public. The PAC determined that the Open Meetings Act does not contain a requirement that in-person meetings must be audible or recorded for the public.","plain_summary":"A citizen complained that they could not hear the proceedings at City of Washington council meetings due to poor audio quality in the meeting venues. The Attorney General's office provided guidance, explaining that the Open Meetings Act requires public bodies to provide reasonable access to meetings, which includes taking reasonable measures to ensure proceedings are audible to the public. The office recommended that the City Council review the concerns and consider measures such as changing the meeting location or using microphones, but did not make any finding of a violation.","holding":"","legal_question":"Does the Open Meetings Act require public bodies to ensure that all discussions at in-person meetings are audible to the public?","disposition":"no_violation","primary_statute":["5 ILCS 120/1"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Washington City Council","requesting_party":"Anonymous (redacted in text)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting accessibility","subject_description":"The requester alleged that the City Council failed to provide adequate audio amplification for in-person public meetings.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/77191, issued July 14, 2023.pdf","sha256":"d3f7cbf69c2383367443118ff84715ff9f4a35965714cbf7c73a03d9befe374f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting accessibility","audio quality","in-person meetings","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 14, 2023\n\nVia electronic mail\nThe Honorable Gary Manier\nMayor\nCity of Washington\n301 Walnut Street\nWashington, Illinois 61571\ngmanier@ci. washington. il.us\nVia electronic mail\nMr. Jim Snider\nCity Administrator\n301 Walnut Street\nWashington, Illinois 61571\njsnider@ci. washington. il.us\nRE: OMA Request for Review – 2023 PAC 77191\nDear Mayor Manier and Mr. Snider:\nThe Public Access Bureau has received the attached correspondence in which\nalleges that City of Washington City Council ( City Council) meetings have\nnot been sufficiently audible to the public. She asserts that the City should \" be required to utilize\ntechnology to ensure all citizens can hear everything said during City meetings – regardless of\nthe venue.\" 1\nAccording to\nsubmission, poor audio quality has been an\nongoing problem at City Council meetings that have been held in a variety of venues. She stated\nthat when a large turnout is anticipated, meetings are held in a ballroom without any audio\namplification and it is difficult to hear the proceedings. She stated that the City Council recently\nmoved its meetings to the training room of the Fire Station, where portions of its July 1, 2023,\n1E- mail from\n\nto Public Access [ Bureau, Office of the Attorney General]\n\nJuly 5, 2023).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Gary Manier\nMr. Jim Snider\nJuly 14, 2023\nPage 2\n\nmeeting were inaudible due to background noise such as people whispering in the audience and\nan individual jiggling his keys. She requests that the City Council implement an audio\namplification system by its July 17, 2023, meeting or, at a minimum, use tabletop microphones\nand Zoom to ensure that a fully audible recording of the meeting is available for the public. This\nletter is intended to provide guidance about the requirements of the Open Meetings Act (OMA)\n5 ILCS 120/ 1 et seq. ( West 2022)) for the City Council to consider in determining whether\nadditional measures are necessary to ensure its meetings comply with OMA.\nSection 1 of OMA (5 ILCS 120/ 1 (West 2022)) provides that \" it is the intent of\nthis Act to ensure that the actions of public bodies be taken openly and that their deliberations be\nconducted openly.\" Members of the public have \" the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in any way.\" 5 ILCS 120/ 1 (West 2022).\nSection 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that \"[ a] ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" \" By its plain terms, section 2.01 requires a venue that is not only 'open,' but\nconvenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 ( 4th\nDist. 2003).\nIn Gerwin, 345 Ill. App. 3d at 353, the plaintiffs appealed the dismissal of their\nlawsuit alleging a county board violated section 2.01 of OMA by holding a meeting at an\ninconvenient location. After an overflow crowd attended a meeting of a committee of the board,\na board member asked whether the upcoming board meeting could be moved to a bigger room,\nbut the meeting was not moved. In evaluating the allegation that holding the meeting in the\nsmaller room violated OMA, the court construed section 2.01 as requiring \" not 'absolute\naccessibility' but 'reasonable accessibility.'\" Gerwin, 345 Ill. App. 3d at 362, quoting State ex\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408,\n418 ( Wis. 1993). The Gerwin court' s analysis, however, primarily focused on whether the\nmeeting location was physically accessible rather than whether the proceedings were sufficiently\naudible.\nAlthough the Illinois Supreme Court and Illinois Appellate Court have not issued\nrulings that specifically address the extent to which proceedings must be audible to all attendees,\ncourts in other jurisdictions have explained that compliance with their versions of OMA require\nmore than allowing the public to be physically present at meetings. In State ex rel. Bratenahl v.\nVillage of Bratenahl, 157 Ohio St. 3d 309, 313, 136 N.E.3d 447, 451 ( Ohio 2019), the Ohio\nSupreme Court observed that \"[ t]he Act is not satisfied simply because the doors of a council\nmeeting are open to the public. Rather, an open meeting requires that the public have meaningful\naccess to the deliberations that take place among members of the public body[.]\" See also State\nex rel. Ames v. Portage County Board of Commissioners, 165 Ohio St. 3d 292, 297, 178 N.E.3d\n492, 497 ( Ohio 2021) ( A public body \" violates the Open Meetings Act when its members\n\n\fhe Honorable Gary Manier\nMr. Jim Snider\nJuly 14, 2023\nPage 3\n\nconceal their deliberations by whispering among themselves or secretly passing notes between\none another during a public meeting.\"). In Goetschius v. Board of Education, 281 A.D.2d 416,\n417, 721 N.Y.S.2d 386, 387 ( N.Y. App. Div. 2001), the New York Appellate Court held that a\npublic body \" engaged in a persistent pattern of deliberate violation of the letter and spirit of the\nOpen Meetings Law by, inter alia, * * * conducting business in a manner inaudible to the public\naudience[.]\" On the other hand, the Wisconsin Supreme Court rejected a plaintiff' s claim that a\npublic body violated OMA when portions of the proceedings were inaudible because \" the record\nindicates that to the extent hearing was difficult, it was intermittent and due to some disruptive\nattendees.\" State ex rel. Badke, 173 Wis. 2d at 581, 494 N.W.2d at 419.\nCollectively, these rulings are consistent with the principle articulated in Gerwin\nthat OMA requires public bodies to provide reasonable access to their meetings, and that this\nobligation includes taking reasonable measures to ensure that the proceedings are audible to the\npublic. Accordingly, this office recommends that the City Council review the concerns about\nsound quality raised in\nsubmission and consider whether measures such as\nchanging the location of its meetings or using microphones or speakers are necessary to ensure\nits meetings are sufficiently audible in compliance with section 2.01 of OMA. At the same time,\nthis office notes that the concept of reasonable accessibility does not mean that a public body\nviolates OMA if a discrete portion of an in-person meeting is not audible to all attendees,\nespecially if the ability to hear the proceedings is impacted by outbursts or background noises in\nthe audience that the public body cannot readily control. 2\nIf you have any questions or would like to discuss this matter, please contact me\nat (312) 814- 6756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n2Notably, the requirements for holding meetings remotely during public health emergencies\ninclude providing an alternative to in-person attendance that allows \" any interested member of the public access to\ncontemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a\nweb- based link[.]\" ( Emphasis added.) 5 ILCS 120/ 7(e)( 4) (West 2022). OMA does not contain a corresponding\nrequirement to ensure the public may contemporaneously hear all discussions at in-person meetings. Section 5 ILCS\n120/ 7(e)( 7)(B) (West 2022)) also requires public bodies to make verbatim recordings of the open session portions of\nremote meetings, but no provision in OMA requires in-person meetings to be recorded and made available to the\npublic.\n\n\fThe Honorable Gary Manier\nMr. Jim Snider\nJuly 14, 2023\nPage 4\n\n77191 o inf r mun\nAttachment\ncc:\n\nVia electronic mail\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Inaudible audio at a city council meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77191/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 14, 2023\n\nVia electronic mail\nThe Honorable Gary Manier\nMayor\nCity of Washington\n301 Walnut Street\nWashington, Illinois 61571\ngmanier@ci. washington. il.us\nVia electronic mail\nMr. Jim Snider\nCity Administrator\n301 Walnut Street\nWashington, Illinois 61571\njsnider@ci. washington. il.us\nRE: OMA Request for Review – 2023 PAC 77191\nDear Mayor Manier and Mr. Snider:\nThe Public Access Bureau has received the attached correspondence in which\nalleges that City of Washington City Council (City Council) meetings have\nnot been sufficiently audible to the public. She asserts that the City should \" be required to utilize\ntechnology to ensure all citizens can hear everything said during City meetings – regardless of\nthe venue.\" 1\nAccording to\nsubmission, poor audio quality has been an\nongoing problem at City Council meetings that have been held in a variety of venues. She stated\nthat when a large turnout is anticipated, meetings are held in a ballroom without any audio\namplification and it is difficult to hear the proceedings. She stated that the City Council recently\nmoved its meetings to the training room of the Fire Station, where portions of its July 1, 2023,\n1E- mail from\n\nto Public Access [ Bureau, Office of the Attorney General]\n\nJuly 5, 2023).\n\nmeeting were inaudible due to background noise such as people whispering in the audience and\nan individual jiggling his keys. She requests that the City Council implement an audio\namplification system by its July 17, 2023, meeting or, at a minimum, use tabletop microphones\nand Zoom to ensure that a fully audible recording of the meeting is available for the public. This\nletter is intended to provide guidance about the requirements of the Open Meetings Act (OMA)\n5 ILCS 120/ 1 et seq. (West 2022)) for the City Council to consider in determining whether\nadditional measures are necessary to ensure its meetings comply with OMA.\nSection 1 of OMA (5 ILCS 120/ 1 (West 2022)) provides that \" it is the intent of\nthis Act to ensure that the actions of public bodies be taken openly and that their deliberations be\nconducted openly.\" Members of the public have \" the right to attend all meetings at which any\nbusiness of a public body is discussed or acted upon in any way.\" 5 ILCS 120/ 1 (West 2022).\nSection 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that \"[ a] ll meetings required by\nthis Act to be public shall be held at specified times and places which are convenient and open to\nthe public.\" \" By its plain terms, section 2.01 requires a venue that is not only 'open,' but\nconvenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill. App. 3d 352, 359 (4th\nDist. 2003).\nIn Gerwin, 345 Ill. App. 3d at 353, the plaintiffs appealed the dismissal of their\nlawsuit alleging a county board violated section 2.01 of OMA by holding a meeting at an\ninconvenient location. After an overflow crowd attended a meeting of a committee of the board,\na board member asked whether the upcoming board meeting could be moved to a bigger room,\nbut the meeting was not moved. In evaluating the allegation that holding the meeting in the\nsmaller room violated OMA, the court construed section 2.01 as requiring \" not 'absolute\naccessibility' but 'reasonable accessibility.'\" Gerwin, 345 Ill. App. 3d at 362, quoting State ex\nrel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408,\n418 (Wis. 1993). The Gerwin court's analysis, however, primarily focused on whether the\nmeeting location was physically accessible rather than whether the proceedings were sufficiently\naudible.\nAlthough the Illinois Supreme Court and Illinois Appellate Court have not issued\nrulings that specifically address the extent to which proceedings must be audible to all attendees,\ncourts in other jurisdictions have explained that compliance with their versions of OMA require\nmore than allowing the public to be physically present at meetings. In State ex rel. Bratenahl v.\nVillage of Bratenahl, 157 Ohio St. 3d 309, 313, 136 N.E.3d 447, 451 (Ohio 2019), the Ohio\nSupreme Court observed that \"[ t]he Act is not satisfied simply because the doors of a council\nmeeting are open to the public. Rather, an open meeting requires that the public have meaningful\naccess to the deliberations that take place among members of the public body[.]\" See also State\nex rel. Ames v. Portage County Board of Commissioners, 165 Ohio St. 3d 292, 297, 178 N.E.3d\n\nconceal their deliberations by whispering among themselves or secretly passing notes between\none another during a public meeting.\"). In Goetschius v. Board of Education, 281 A.D.2d 416,\n417, 721 N.Y.S.2d 386, 387 (N.Y. App. Div. 2001), the New York Appellate Court held that a\npublic body \" engaged in a persistent pattern of deliberate violation of the letter and spirit of the\nOpen Meetings Law by, inter alia, * * * conducting business in a manner inaudible to the public\naudience[.]\" On the other hand, the Wisconsin Supreme Court rejected a plaintiff's claim that a\npublic body violated OMA when portions of the proceedings were inaudible because \" the record\nindicates that to the extent hearing was difficult, it was intermittent and due to some disruptive\nattendees.\" State ex rel. Badke, 173 Wis. 2d at 581, 494 N.W.2d at 419.\nCollectively, these rulings are consistent with the principle articulated in Gerwin\nthat OMA requires public bodies to provide reasonable access to their meetings, and that this\nobligation includes taking reasonable measures to ensure that the proceedings are audible to the\npublic. Accordingly, this office recommends that the City Council review the concerns about\nsound quality raised in\nsubmission and consider whether measures such as\nchanging the location of its meetings or using microphones or speakers are necessary to ensure\nits meetings are sufficiently audible in compliance with section 2.01 of OMA. At the same time,\nthis office notes that the concept of reasonable accessibility does not mean that a public body\nviolates OMA if a discrete portion of an in-person meeting is not audible to all attendees,\nespecially if the ability to hear the proceedings is impacted by outbursts or background noises in\nthe audience that the public body cannot readily control. 2\nIf you have any questions or would like to discuss this matter, please contact me\nat (312) 814- 6756 or steven. silverman@ilag. gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n2 Notably, the requirements for holding meetings remotely during public health emergencies\ninclude providing an alternative to in-person attendance that allows \" any interested member of the public access to\ncontemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a\nweb- based link[.]\" (Emphasis added.) 5 ILCS 120/ 7(e)(4) (West 2022). OMA does not contain a corresponding\nrequirement to ensure the public may contemporaneously hear all discussions at in-person meetings. Section 5 ILCS\n120/ 7(e)(7)(B) (West 2022)) also requires public bodies to make verbatim recordings of the open session portions of\nremote meetings, but no provision in OMA requires in-person meetings to be recorded and made available to the\n\n77191 o inf r mun\nAttachment\ncc:\n\nVia electronic mail"}
{"id":1425,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-09-26","case_number":null,"request_numbers":["77235"],"title":"Doyle Public Library Board did not violate OMA by not posting agendas online without full-time staff","filename":"77235, issued September 26, 2023.pdf","rel_path":null,"word_count":922,"summary":"The requester alleged that the Doyle Public Library violated the Open Meetings Act by failing to post meeting agendas and minutes on its website. The PAC determined the complaint was unfounded because the library's website is not maintained by full-time staff, which is a prerequisite for the posting requirement.","plain_summary":"A citizen complained that a public library failed to post meeting agendas and minutes online. The PAC determined that OMA's online-posting requirement applies only to public bodies whose websites are maintained by full-time staff, and because the library's director who maintains its website works fewer than 40 hours per week without benefits, the library was not subject to that requirement. The library's practice did not violate the Open Meetings Act, though the PAC encouraged voluntary online posting to promote transparency.","holding":"The PAC determined that the Doyle Public Library did not violate the Open Meetings Act because its website is not maintained by full-time staff.","legal_question":"Does the Open Meetings Act require a public body to post meeting agendas and minutes on its website if the website is not maintained by full-time staff?","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Doyle Public Library Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requirement for public bodies to post meeting agendas and minutes on their websites.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_a/Posting-agendas-for-regular-and-special-meetings,-contents-of-discussion/77235, issued September 26, 2023.pdf","sha256":"4be9a0171c0840378eed9bf9b50393992285b0e917a0b9286a5aa40b0103c187","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","meeting minutes","website posting","library board","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 26, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77235\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3.5(b) ( West 2022)). For the reasons that follow, the Public Access Bureau\n\nhas determined that this Request for Review is unfounded.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) ( West 2022)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\n\nmust include a summary of the facts supporting the\n\nallegation[]\" that the public body violated OMA. (Emphasis added.)\nYour Request for Review appears to allege that the Board of Trustees (Board) of\nthe Doyle Public Library ( Library) violated the Open Meetings Act ( OMA) ( 5 ILCS 120/ 1 et seq.\n\nWest 2022)) by not posting on the Library's website the agenda and minutes of its March 2023\nspecial meeting or its April 4, 2023, regular meeting.\nSection 2.02( a) of OMA ( 5 ILCS 120/ 2.02( a) ( West 2022)) provides, in pertinent\n\npart, that \"[ a] public body that has a website that the full-time staff of the public body\nmaintains shall also post on its website the agenda of any regular meetings of the governing\n\nbody of that public body.\" (Emphasis added.) Section 2.06(b) of OMA (5 ILCS 120/2.06(b)\nWest 2022)) provides, in pertinent part, that \"[ a] public body that has a website that the full-\n\ntime staff of the public body maintains shall post the minutes of a regular meeting of its\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fSeptember 26, 2023\nPage 2\n\ngoverning body open to the public on the public body' s website within 10 days after the approval\n\nof the minutes by the public body.\" (Emphasis added.)\nFirst, you allege that the Board violated OMA by not posting the agenda or the\nminutes of its March 2023, special meeting on its website. The plain language of section 2.02( a)\n\nand 2.06(b) of OMA, requiring the posting of certain agendas and minutes on a public body's\nwebsite, applies to regular meetings, not special meetings. Accordingly, this office has\n\ndetermined that no further action is warranted regarding the March 2023 special meeting.\nSecond, you allege that that the Board violated OMA by not posting the agenda\nfor or the minutes of its April 4, 2023, regular meeting on its website. The language of OMA\n\nclearly states that only public bodies with websites maintained by full-time staff are required to post\nregular meeting agendas and meeting minutes on their websites. See, e.g., Ill. Att'y Gen. PAC Req.\n\nRev. Ltr. 54137, issued April 23, 2019, at 3. \"A full-time job is generally considered one in which\nan individual works 40 hours per week.\" Teresi v. Department of Employment Security, 2022 IL App\n\n3d) 190560, ¶ 22; see also 56 Ill. Adm. Code § 2720.1 (2023), last amended at 43 Ill. Reg. 6385,\neffective May 14, 2019 (\" Generally, part- time work will be less than 40 hours per week except\n\nwhen company policy or a collective bargaining agreement provides for a lesser number of hours\nper week as full-time work.\")\nOn September 20, 2023, the Board President informed an Assistant Attorney\n\nGeneral (AAG) in the Public Access Bureau that its Library director posts items such as minutes to\nits website. The Board President also informed the AAG that the director works up to 35 hours per\n\nweek, but occasionally works more hours, and does not receive benefits. Your Request for Review\nasserts the position of Library director is a full-time position but does not provide facts to support that\n\nassertion or contradict the information provided by the Board President. Thus, the available\ninformation indicates that the website is not maintained by full-time staff of the Library. Because you\n\ndid not set forth facts from which this office could conclude that the Board violated OMA, the\nPublic Access Bureau has determined that no further inquiry is warranted in this matter.\n\nBecause this office is also charged with providing advice and education to both the\npublic and public officials, 1 we note that many public bodies with websites that are not maintained by\n\nfull-time staff also post meeting agendas and minutes online, even though they are not required to do\nso. This office encourages that practice to promote transparency, consistent with the spirit of OMA.\n\n115 ILCS 205/7(a), ( c) (West 2022).\n\n\fSeptember 26, 2023\nPage 3\n\nThis file is closed. Please contact me at edie. steinberg@ilag. gov, ( 312) 814- 5201,\n\nor at the Chicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n77235 o no fi war lib\ncc:\n\nVia electronic mail\nMs. Amanda Calderini, President\n\nDoyle Public Library Board of Trustees\nDoyle Public Library\n\n109 South O'Bannon\nP.O. Box 544\n\nRaymond, Illinois 62560\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that a local library failed to post its meeting agendas and minutes online. The Attorney General's office investigated and found that the law only requires libraries to post these documents online if they have full-time staff who maintain the website. Since the library does not have full-time staff to maintain its site, it did not break the law.","card_headline":"A library board's posting of meeting agendas and minutes online","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77235/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 26, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77235\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons that follow, the Public Access Bureau\n\nhas determined that this Request for Review is unfounded.\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2022)) provides that \"[ a] person\nwho believes that a violation of this Act by a public body has occurred may file a request for\n\nreview with the Public Access Counselor established in the Office of the Attorney General[.] * *\nThe request for review * * *\n\nmust include a summary of the facts supporting the\n\nallegation[]\" that the public body violated OMA. (Emphasis added.)\nYour Request for Review appears to allege that the Board of Trustees (Board) of\nthe Doyle Public Library (Library) violated the Open Meetings Act (OMA) (5 ILCS 120/ 1 et seq.\n\nWest 2022)) by not posting on the Library's website the agenda and minutes of its March 2023\nspecial meeting or its April 4, 2023, regular meeting.\nSection 2.02(a) of OMA (5 ILCS 120/ 2.02(a) (West 2022)) provides, in pertinent\n\npart, that \"[ a] public body that has a website that the full-time staff of the public body\nmaintains shall also post on its website the agenda of any regular meetings of the governing\n\nbody of that public body.\" (Emphasis added.) Section 2.06(b) of OMA (5 ILCS 120/2.06(b)\nWest 2022)) provides, in pertinent part, that \"[ a] public body that has a website that the full-\n\ntime staff of the public body maintains shall post the minutes of a regular meeting of its\n\ngoverning body open to the public on the public body's website within 10 days after the approval\n\nof the minutes by the public body.\" (Emphasis added.)\nFirst, you allege that the Board violated OMA by not posting the agenda or the\nminutes of its March 2023, special meeting on its website. The plain language of section 2.02(a)\n\nand 2.06(b) of OMA, requiring the posting of certain agendas and minutes on a public body's\nwebsite, applies to regular meetings, not special meetings. Accordingly, this office has\n\ndetermined that no further action is warranted regarding the March 2023 special meeting.\nSecond, you allege that that the Board violated OMA by not posting the agenda\nfor or the minutes of its April 4, 2023, regular meeting on its website. The language of OMA\n\nclearly states that only public bodies with websites maintained by full-time staff are required to post\nregular meeting agendas and meeting minutes on their websites. See, e.g., Ill. Att'y Gen. PAC Req.\n\nRev. Ltr. 54137, issued April 23, 2019, at 3. \"A full-time job is generally considered one in which\nan individual works 40 hours per week.\" Teresi v. Department of Employment Security, 2022 IL App\n\n3d) 190560, ¶ 22; see also 56 Ill. Adm. Code § 2720.1 (2023), last amended at 43 Ill. Reg. 6385,\neffective May 14, 2019 (\" Generally, part- time work will be less than 40 hours per week except\n\nwhen company policy or a collective bargaining agreement provides for a lesser number of hours\nper week as full-time work.\")\nOn September 20, 2023, the Board President informed an Assistant Attorney\n\nGeneral (AAG) in the Public Access Bureau that its Library director posts items such as minutes to\nits website. The Board President also informed the AAG that the director works up to 35 hours per\n\nweek, but occasionally works more hours, and does not receive benefits. Your Request for Review\nasserts the position of Library director is a full-time position but does not provide facts to support that\n\nassertion or contradict the information provided by the Board President. Thus, the available\ninformation indicates that the website is not maintained by full-time staff of the Library. Because you\n\ndid not set forth facts from which this office could conclude that the Board violated OMA, the\nPublic Access Bureau has determined that no further inquiry is warranted in this matter.\n\nBecause this office is also charged with providing advice and education to both the\npublic and public officials, 1 we note that many public bodies with websites that are not maintained by\n\nfull-time staff also post meeting agendas and minutes online, even though they are not required to do\nso. This office encourages that practice to promote transparency, consistent with the spirit of OMA.\n\nThis file is closed. Please contact me at edie. steinberg@ilag. gov, (312) 814- 5201,\n\nor at the Chicago address listed on the first page of this letter if you have questions.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n77235 o no fi war lib\ncc:\n\nVia electronic mail\nMs. Amanda Calderini, President\n\nDoyle Public Library Board of Trustees\nDoyle Public Library\n\n109 South O'Bannon\nP.O. Box 544\n\nRaymond, Illinois 62560"}
{"id":1427,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-01-29","case_number":null,"request_numbers":["77314"],"title":"Village of Wayne Board did not violate OMA by not reading written public comment aloud","filename":"77314, issued January 29, 2024.pdf","rel_path":null,"word_count":2175,"summary":"A requester alleged the Village of Wayne Board of Trustees violated the Open Meetings Act by failing to read her written public comment aloud at a meeting. The PAC determined that the OMA does not require public bodies to read written comments aloud or include them in meeting minutes.","plain_summary":"A resident complained that the Village of Wayne Board of Trustees failed to read her written public comment aloud during its July 5, 2023, meeting. The Illinois Attorney General's Public Access Bureau determined that the Board did not violate the Open Meetings Act because it allowed the public to comment in person and had no rule requiring written comments to be read aloud. The Bureau found no violation of section 2.06(g) of the Act.","holding":"The Village of Wayne did not violate the Open Meetings Act by failing to read the requester's written public comment into the record.","legal_question":"Does the Open Meetings Act require a public body to read aloud or include in its minutes written public comments submitted by a member of the public?","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Wayne Board of Trustees","requesting_party":"Ms. [Name redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The requester challenged the Village's refusal to read her written public comment aloud during a board meeting.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/77314, issued January 29, 2024.pdf","sha256":"f6110532fb56b4338963ccde7024e5dd6f22601871f5d6dab2063716fdd49e04","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting minutes","open meetings act","written testimony"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nJanuary 29, 2024\n\nVia electronic mail\n\ne.\n\nVia electronic mail\nThe Honorable Eileen Phipps\nPresident\n\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\nc/ o clerk@villageofwayne. org\nRE: OMA Request for Review — 2023 PAC 77314\n\nDearlis\n\nand Ms. Phipps:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)).\nBACKGROUND\n\nOn July 13, 2022,\n\nsubmitted\n\na Request for Review to\n\nthe Public Access Bureau alleging that the Village of Wayne Board of Trustees (Board) violated\nOMA at its July 5, 2023, meeting by failing to read aloud a written comment she had submitted\nstated that she attended the meeting via Zoom, and that the\n\nprior to the meeting.\n\ninteractively through that option.\n\nShe stated that, on the morning of\nJuly 3, 2023, she e- mailed a written comment to the Village and received a reply from the\npublic cannot participate\n\nVillage Clerk stating that the comment\n\nwas\n\nreceived after the cutoff date. She asserted:\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\nwww. IllinoisAttomeyGeneral.\n\ngov\n\nFax: ( 618) 529- 6416\n\n\fThe Honorable Eileen Phipps\n\nJanuary 29, 2024\nPage 2\n\nIn [ the Village Clerk' s] email, she references the Village of\n\nWayne' s publication on the meeting agenda that all public\nstatements are required to be submitted by noon on the Thursday\nprior to the board meeting in order to be included in the packet\nprovided to the Trustees. There is nothing documented in that\n\nstatement regarding reading a public statement into the record. l' l\nalso stated that she had submitted written comments on previous occasions, and\nall were read into the record at meetings.\n\nnot released until after noon on Thursdays.\nitem prior to the\n\nShe further stated that \"[ t] he agenda for the meeting is\n\nIt is impossible to submit a public statement\ni2\n\nbeing published.\nprovided\ncopies of the July 5, 2023, meeting agenda, her e- mailed submission, and a copy of a resolution\nadopting a public comment policy, which she explained the Board voted on at the July 5, 2023,\naddressing\n\nan agenda\n\nagenda\n\nmeeting.\n\nOn July 20, 2023, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its July 5, 2023, meeting agenda,\nminutes, and any Board rules governing public comment in effect at the time of the meeting,\ntogether with a written response t '\nOMA allegations. On July 21, 2023, this\noffice received a written response. That same day, this office forwarded a copy of the Board's\nresponse\nshe replied on July 24, 2023.\ntcl,\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2022). So long as public bodies allow the public\nto attend meetings in person, they may, additionally, live stream a meeting on a website, social\nmedia,\n\nor other electronic\n\nplatform.\n\nSection 2. 06( g) of OMA provides\n\nthat \"[\n\na] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. Public bodies are not required to recite during\nmeetings public comments that were submitted in writing unless they have established rules\nproviding such an option. Ill. Att' y Gen. Req. Rev. Ltr. 76163, issued May 22, 2023, at 2\nSection 2. 06(g) does not require a public body to accept public comment in writing when it\nLetter from\n\nto Office of the Attorney General ( July 6, 2023).\n\n2Letter from\n\nto Office of the Attorney General ( July 6, 2023).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Eileen Phipps\n\nJanuary 29, 2024\nPage 3\n\nallows individuals to attend meetings and deliver comments in person, and no other provision of\nOMA guarantees members of the public an unfettered right to address a public body by e- mail at\nany time.\").\n\nIn its response to this office, the Board denied that it improperly restricted the\npublic from addressing its members and asserted that,\n\nat the time\n\nof the meeting, \" the Village\n\nhad no time or other limitation on addressing the Board in person and anyone appearing at the\n\nmeeting was and is given the opportunity to speak. i3 The Board contended that the agenda\nprovides \" as an accommodation, that persons may, at their option, also submit written comments\n\nwhich will be distributed to the Board. i4 The Board's July 5, 2023, meeting agenda stated, in\nrelevant part:\n\nThe Public Comment section is intended to give the public an\nopportunity to present a comment or opinion to the Board of\nTrustees. * * *\nPublic Comment should be limited to this portion\nof the agenda and the public shall not interrupt the Board during\nthe remainder of the meeting. Written comments received by the\nClerk will be distributed to the Board. 151\nAt the bottom, the agenda further stated: \"\nVillage Clerk * * *\n\nBoard with their packets. i6\nsubmitting\n\nwritten\n\nAny Public Comments submitted in writing to the\n\nprior to noon on the Thursday before the meeting will be distributed to the\n\nThe Board acknowledged that the agenda provides a cut- off time for\n\ncomments.\n\nHowever, it highlighted\n\nthat '\n\ncomments\n\nwere\n\nnevertheless distributed to its members in their meeting packets, as stated in the e- mail from the\nVillage Clerk.\n\nThe Board further contended that its \" President recited that the written comment\n\nhad been received and summarized its content.\"'\n\nThe Board confirmed that the public has the\n\noption of attending the meeting remotely via Zoom, but argued that it was not required \" to also\nprovide for remote statements from the public so long as the meeting is held in person and the\n\nLetter\n\nfrom Peter K. Wilson,\n\nJr. Mickey, Wilson,\n\nWeiler,\n\nRenzi,\n\nLenert &\n\nJulien,\n\nP. C., to Teresa\n\n4Lctter from Peter K. Wilson, Jr. Mickey, Wilson, Weiler, Renzi, Lenert &\n\nJulien,\n\nP. C., to Teresa\n\nLim, Supervising Attorney, Public Access Bureau ( July 21, 2023), at [ 1].\n\nLim, Supervising Attorney, Public Access Bureau ( July 21, 2023), at [ 1].\n\n5Village of Wayne, Agenda Item III, Public Comment (July 5, 2023).\n6Village of Wayne, Agenda ( July 5, 2023).\n7Letter from Peter K. Wilson. Jr. Mickey, Wilson, Weiler. Renzi. Lenert & Julien, P. C., to Teresa\n\nLim, Supervising Attorney, Public Access Bureau ( July 21, 2023), at [ 1].\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Eileen Phipps\n\nJanuary 29, 2024\nPage 4\npublic has the right to attend and make comments.\"\n\n8\n\nAdditionally, the Board argued that the\n\nbinding opinions cited by ls in her Request for Review was not applicable to this\nmatter because that opinion concerned an advance sign up rule to speak in person at a meeting\nwhereas it did not enforce such a rule at its meeting.\nIn reply to that answer,\n\nargued that she had a reasonable\n\nexpectation that her written comments would be read aloud based on the Board' s previous\npractice of doing so: \" Written comments, submitted by multiple residents, have been read aloud\ninto the public record over the past year and a half or so. Every one of my public statements was\nsubmitted\n\nafter\n\nnoon\n\non\n\nthe\n\nThursday prior to the meeting.\n\ni10\n\nls also disputed the\n\nBoard' s claim that it had summarized the content of her written public comment at the meeting\nand provided a link to a recording of the meeting. She contended that the President merely\nstated that the email contained ' comments generally related to the resolution 23- R- 14 adopting\nnoted that the Board has changed how\npublic comment policy.'\"\nAdditionally,\nwritten comments are entered into the record several times over the past year, and that the July 5,\n2023, meeting minutes did not mention any public comments that were received or entered into\nthe record. She also asserted that \" village residents fought to get Zoom access for residents to\nattend village meetings because the location where the village meetings are held is not ADA\ncompliant. * * *\nwho attend\n\nThe written public comment is the only opportunity afforded to those residents\n12\n\nvirtually.\"\n\nIt is undisputed that the Board did not read aloud, verbatim, '\n\nwritten comment at the July 5, 2023, meeting. As discussed above, a public body may, but is not\nrequired by any provision of OMA, to offer options for the public to speak remotely during in\n\nperson meetings. 13 Ill. Att'y Gen. Req. Rev. Ltr. 76163, at 2 The Board' s response to this office\nLetter\n\nfrom Peter K. Wilson,\n\nJr. Mickey, Wilson,\n\nWeiler,\n\nRenzi,\n\nLenert &\n\nJulien, P. C., to Teresa\n\nLim, Supervising Attorney, Public Access Bureau ( July 21, 2023), at [ 2].\n\n9I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014 ( rule requiring members of\nthe public to sign up to comment five days in advance of meetings, before the board was required to post its agenda,\nimposed an unreasonable restriction on public comment).\nLetter from\n\nto Teresa Lim, Office of the Attorney General ( July 24, 2023),\n\nLetter from\n\nto Teresa Lim, Office of the Attorney General ( July 24, 2023),\n\n12Letter from\n\nto Teresa Lim, Office of the Attorney General ( July 24, 2023),\n\nat 1.\n\nat 1.\n\nat 2.\n\n13The Public Access Counselor does not have the authority\n\nto review '\n\nallegation\n\nthat some members of the public cannot attend meetings in person due to the physical limitations of the Board' s\nmeeting location because that complaint alleges violations of other laws. See 15 ILCS 205/ 7(c)( 3) ( West 2022)\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Eileen Phipps\n\nJanuary 29, 2024\nPage 5\n\nindicated that it established rules during its July 5, 2023, meeting that require public comments\nsubmitted in writing by a certain time to be read during its meetings, but the response stated that\nthose rules were not in effect at the time of the meeting. The meeting minutes indicate generally\nthat the designated public comment period occurred near the beginning of the meeting.\nAlthough\n\ndemonstrated\n\nthat written comments have been read aloud at meetings\n\nover the past year or so, the July 5, 2023, meeting agenda simply indicated that written\ncomments would be distributed to its members if submitted by a certain cutoff time. Further, no\ncutoff time appears to have been enforced,\n\nwritten comments were still\n\nas '\n\nshared with members of the Board. 14 Because the Board provided an opportunity for the public\nto address its members in person and because it did not have a rule in place that required public\n\ncomment submitted in writing to be read aloud during the public comment portion of its July 5,\n2023, meeting, this office concludes that the Board did not violate section 2. 06( g) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA\n\nLIM\n\nSupervising Attorney\nPublic Access Bureau\n\n77314 o 206g pub comment proper mun\ncc:\n\nVia electronic mail\nMr. Peter K. Wilson, Jr.\n\nAttomey for the Village of Wayne\nMickey, Wilson, Weiler, Renzi, Lenert &\n\nJulien, P. C.\n\n140 South Municipal Drive\nSugar Grove, Illinois 60554\npkw@mickeywilson.\n\ncom\n\nPublic Access Counselor' s authority to resolve disputes is limited to alleged violations of OMA and the Freedom of\nInformation\n\nAct).\n\n14Because '\nallegation that her comments were not properly entered into the record\nwas not part of her initial Request for Review submission, this office declines to address that allegation. In general,\nhowever, this office notes that no provision of OMA precludes a public body from omitting a member of the public' s\npublic comments from meeting minutes, so long as the public body memorialized in the minutes any discussions\namong its members that rose to the level of deliberation in relation to those comments. See III. Att'y Gen. PAC Req.\nRev. Ltr. 36909, issued September 2, 2015, at 2.\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Refusal to read a written public comment aloud","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77314/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nJanuary 29, 2024\n\nVia electronic mail\n\ne.\n\nVia electronic mail\nThe Honorable Eileen Phipps\nPresident\n\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\nc/ o clerk@villageofwayne. org\nRE: OMA Request for Review — 2023 PAC 77314\n\nDearlis\n\nand Ms. Phipps:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2022)).\nBACKGROUND\n\nOn July 13, 2022,\n\nsubmitted\n\na Request for Review to\n\nthe Public Access Bureau alleging that the Village of Wayne Board of Trustees (Board) violated\nOMA at its July 5, 2023, meeting by failing to read aloud a written comment she had submitted\nstated that she attended the meeting via Zoom, and that the\n\nprior to the meeting.\n\ninteractively through that option.\n\nShe stated that, on the morning of\nJuly 3, 2023, she e- mailed a written comment to the Village and received a reply from the\npublic cannot participate\n\nVillage Clerk stating that the comment\n\nwas\n\nreceived after the cutoff date. She asserted:\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: (312) 814- 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\n\nIn [ the Village Clerk's] email, she references the Village of\n\nWayne's publication on the meeting agenda that all public\nstatements are required to be submitted by noon on the Thursday\nprior to the board meeting in order to be included in the packet\nprovided to the Trustees. There is nothing documented in that\n\nstatement regarding reading a public statement into the record. l' l\nalso stated that she had submitted written comments on previous occasions, and\nall were read into the record at meetings.\n\nnot released until after noon on Thursdays.\nitem prior to the\n\nShe further stated that \"[ t] he agenda for the meeting is\n\nIt is impossible to submit a public statement\ni2\n\nbeing published.\nprovided\ncopies of the July 5, 2023, meeting agenda, her e- mailed submission, and a copy of a resolution\nadopting a public comment policy, which she explained the Board voted on at the July 5, 2023,\naddressing\n\nan agenda\n\nagenda\n\nmeeting.\n\nOn July 20, 2023, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its July 5, 2023, meeting agenda,\nminutes, and any Board rules governing public comment in effect at the time of the meeting,\ntogether with a written response t '\nOMA allegations. On July 21, 2023, this\noffice received a written response. That same day, this office forwarded a copy of the Board's\nresponse\nshe replied on July 24, 2023.\ntcl,\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2022). So long as public bodies allow the public\nto attend meetings in person, they may, additionally, live stream a meeting on a website, social\nmedia,\n\nor other electronic\n\nplatform.\n\nSection 2. 06(g) of OMA provides\n\nthat \"[\n\na] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. Public bodies are not required to recite during\nmeetings public comments that were submitted in writing unless they have established rules\nproviding such an option. Ill. Att' y Gen. Req. Rev. Ltr. 76163, issued May 22, 2023, at 2\nSection 2. 06(g) does not require a public body to accept public comment in writing when it\n\nallows individuals to attend meetings and deliver comments in person, and no other provision of\nOMA guarantees members of the public an unfettered right to address a public body by e- mail at\nany time.\").\n\nIn its response to this office, the Board denied that it improperly restricted the\npublic from addressing its members and asserted that,\n\nat the time\n\nof the meeting, \" the Village\n\nhad no time or other limitation on addressing the Board in person and anyone appearing at the\n\nmeeting was and is given the opportunity to speak. i3 The Board contended that the agenda\nprovides \" as an accommodation, that persons may, at their option, also submit written comments\n\nwhich will be distributed to the Board. i4 The Board's July 5, 2023, meeting agenda stated, in\nrelevant part:\n\nThe Public Comment section is intended to give the public an\nopportunity to present a comment or opinion to the Board of\nTrustees. * * *\nPublic Comment should be limited to this portion\nof the agenda and the public shall not interrupt the Board during\nthe remainder of the meeting. Written comments received by the\nClerk will be distributed to the Board. 151\nAt the bottom, the agenda further stated: \"\nVillage Clerk * * *\n\nBoard with their packets. i6\nsubmitting\n\nwritten\n\nAny Public Comments submitted in writing to the\n\nprior to noon on the Thursday before the meeting will be distributed to the\n\nThe Board acknowledged that the agenda provides a cut- off time for\n\ncomments.\n\nHowever, it highlighted\n\nthat '\n\ncomments\n\nwere\n\nnevertheless distributed to its members in their meeting packets, as stated in the e- mail from the\nVillage Clerk.\n\nThe Board further contended that its \" President recited that the written comment\n\nhad been received and summarized its content.\"'\n\nThe Board confirmed that the public has the\n\noption of attending the meeting remotely via Zoom, but argued that it was not required \" to also\nprovide for remote statements from the public so long as the meeting is held in person and the\n\nLetter\n\nfrom Peter K. Wilson,\n\nJr. Mickey, Wilson,\n\nWeiler,\n\nRenzi,\n\nLenert &\n\nJulien,\n\nP. C., to Teresa\n\n4 Lctter from Peter K. Wilson, Jr. Mickey, Wilson, Weiler, Renzi, Lenert &\n\nJulien,\n\nP. C., to Teresa\n\nLim, Supervising Attorney, Public Access Bureau (July 21, 2023), at [ 1].\n\nLim, Supervising Attorney, Public Access Bureau (July 21, 2023), at [ 1].\n\n5 Village of Wayne, Agenda Item III, Public Comment (July 5, 2023).\n6 Village of Wayne, Agenda (July 5, 2023).\n7 Letter from Peter K. Wilson. Jr. Mickey, Wilson, Weiler. Renzi. Lenert & Julien, P. C., to Teresa\n\npublic has the right to attend and make comments.\"\n\n8\n\nAdditionally, the Board argued that the\n\nbinding opinions cited by ls in her Request for Review was not applicable to this\nmatter because that opinion concerned an advance sign up rule to speak in person at a meeting\nwhereas it did not enforce such a rule at its meeting.\nIn reply to that answer,\n\nargued that she had a reasonable\n\nexpectation that her written comments would be read aloud based on the Board's previous\npractice of doing so: \" Written comments, submitted by multiple residents, have been read aloud\ninto the public record over the past year and a half or so. Every one of my public statements was\nsubmitted\n\nafter\n\nnoon\n\non\n\nthe\n\nThursday prior to the meeting.\n\ni10\n\nls also disputed the\n\nBoard's claim that it had summarized the content of her written public comment at the meeting\nand provided a link to a recording of the meeting. She contended that the President merely\nstated that the email contained ' comments generally related to the resolution 23- R- 14 adopting\nnoted that the Board has changed how\npublic comment policy.'\"\nAdditionally,\nwritten comments are entered into the record several times over the past year, and that the July 5,\n2023, meeting minutes did not mention any public comments that were received or entered into\nthe record. She also asserted that \" village residents fought to get Zoom access for residents to\nattend village meetings because the location where the village meetings are held is not ADA\ncompliant. * * *\nwho attend\n\nThe written public comment is the only opportunity afforded to those residents\n12\n\nvirtually.\"\n\nIt is undisputed that the Board did not read aloud, verbatim, '\n\nwritten comment at the July 5, 2023, meeting. As discussed above, a public body may, but is not\nrequired by any provision of OMA, to offer options for the public to speak remotely during in\n\nperson meetings. 13 Ill. Att'y Gen. Req. Rev. Ltr. 76163, at 2 The Board's response to this office\nLetter\n\nfrom Peter K. Wilson,\n\nJr. Mickey, Wilson,\n\nWeiler,\n\nRenzi,\n\nLenert &\n\nJulien, P. C., to Teresa\n\nLim, Supervising Attorney, Public Access Bureau (July 21, 2023), at [ 2].\n\n9I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014 (rule requiring members of\nthe public to sign up to comment five days in advance of meetings, before the board was required to post its agenda,\nimposed an unreasonable restriction on public comment).\nLetter from\n\nto Teresa Lim, Office of the Attorney General (July 24, 2023),\n\nLetter from\n\nto Teresa Lim, Office of the Attorney General (July 24, 2023),\n\n12 Letter from\n\nto Teresa Lim, Office of the Attorney General (July 24, 2023),\n\nat 1.\n\nat 1.\n\nat 2.\n\n13 The Public Access Counselor does not have the authority\n\nto review '\n\nallegation\n\nthat some members of the public cannot attend meetings in person due to the physical limitations of the Board's\nmeeting location because that complaint alleges violations of other laws. See 15 ILCS 205/ 7(c)(3) (West 2022)\n\nindicated that it established rules during its July 5, 2023, meeting that require public comments\nsubmitted in writing by a certain time to be read during its meetings, but the response stated that\nthose rules were not in effect at the time of the meeting. The meeting minutes indicate generally\nthat the designated public comment period occurred near the beginning of the meeting.\nAlthough\n\ndemonstrated\n\nthat written comments have been read aloud at meetings\n\nover the past year or so, the July 5, 2023, meeting agenda simply indicated that written\ncomments would be distributed to its members if submitted by a certain cutoff time. Further, no\ncutoff time appears to have been enforced,\n\nwritten comments were still\n\nas '\n\nshared with members of the Board. 14 Because the Board provided an opportunity for the public\nto address its members in person and because it did not have a rule in place that required public\n\ncomment submitted in writing to be read aloud during the public comment portion of its July 5,\n2023, meeting, this office concludes that the Board did not violate section 2. 06(g) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA\n\nLIM\n\nSupervising Attorney\nPublic Access Bureau\n\n77314 o 206g pub comment proper mun\ncc:\n\nVia electronic mail\nMr. Peter K. Wilson, Jr.\n\nAttomey for the Village of Wayne\nMickey, Wilson, Weiler, Renzi, Lenert &\n\nJulien, P. C.\n\n140 South Municipal Drive\nSugar Grove, Illinois 60554\npkw@mickeywilson.\n\ncom\n\nPublic Access Counselor's authority to resolve disputes is limited to alleged violations of OMA and the Freedom of\nInformation\n\nAct).\n\n14 Because '\nallegation that her comments were not properly entered into the record\nwas not part of her initial Request for Review submission, this office declines to address that allegation. In general,\nhowever, this office notes that no provision of OMA precludes a public body from omitting a member of the public's\npublic comments from meeting minutes, so long as the public body memorialized in the minutes any discussions\namong its members that rose to the level of deliberation in relation to those comments. See III. Att'y Gen. PAC Req.\nRev. Ltr. 36909, issued September 2, 2015, at 2.\n\nOffice of the Illinois Attorney General"}
{"id":1428,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-02-23","case_number":null,"request_numbers":["77429"],"title":"City of Silvis violated OMA with vague censure agenda item","filename":"77429, issued February 23, 2024.pdf","rel_path":null,"word_count":2969,"summary":"Alderman Joshua Dyer alleged that the Silvis City Council's meeting agenda lacked sufficient detail regarding a censure action and that council members held improper secret meetings. The PAC determined that the agenda item was sufficient and found no evidence of an illegal meeting.","plain_summary":"An alderman alleged that a city council's meeting agenda item was too vague to give proper notice of a censure vote, and that several council members held an improper secret meeting to discuss committee assignments. The PAC determined the agenda item did not adequately notify the public of the general subject matter of the censure vote, violating the Open Meetings Act, though no remedy was available since the vote had already occurred. The PAC found no evidence that a majority of a quorum of council members gathered outside an open meeting to discuss the committee assignments, so it could not conclude that allegation was a violation.","holding":"The PAC concluded that the City Council's July 18, 2023, agenda item 'Discussion and possible action on censure' violated the Open Meetings Act's requirement to set forth the general subject matter of final action.","legal_question":"Whether the City of Silvis violated OMA by failing to provide a sufficiently descriptive agenda item for a censure vote and by allegedly holding secret meetings to discuss committee assignments.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Silvis","requesting_party":"Joshua M. Dyer","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The complaint concerned the adequacy of an agenda description for a censure vote and allegations of unauthorized private meetings between council members.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/77429, issued February 23, 2024.pdf","sha256":"e6eb215486ba81448fead7f8d1a65db3fb23e25095cb7000288c50415e2d3a99","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","secret meeting","city council","open meetings act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GE ERAL\nST ATE OF ILLI O1S\n\nKWAMERAO L\nAlTORNEY GEJ\\'ERAL\n\nFebruary 23, 2024\n\nVia electronic mail\nThe Honorable Joshua M. Dyer\n4th Ward Alderman\nCity of Sil vis\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink\n[street address redacted for site publication -- see original PDF]\nKKrafthefer@ancelglink.com\nRE: OMA Request for Review - 2023 PAC 77429\nDear Mr. Dyer and Ms. Krafthefer:\nThis determination is issued pursuant to section 3 .5( e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3 .5(e) (West 2022)).\n\nBACKGROUND\nIn a Request for Review received by this office on July 21, 2023, Mr. Joshua\nDyer, an alderman on the Silvis City Council (Council), alleged that that the Council's July 18,\n2023, meeting agenda item, \"Discussion and possible action on censure,\" did not adequately\ndescribe a matter on which the Council took final action. 1 He alleged that the Council should\nhave included names in the agenda item. Mr. Dyer also alleged that five Council members held\nsecret meetings to discuss committee assignments.\n\n1\n\nE-mail from Joshua M. Dy r, 4th Ward Alderman, to Public Ace ss Counselor (July 21 , 2023).\n\n500 South 2nd Street\nSpringlicld , Illinois 62701\n(2 17) 782 -1090 • fax: (217) 782-7046\n\n115 South LaSalk Street\nC.71icago , Illinois 60603\n(312) 14-3000 • Fax: (312) 814-3806\n\n1745 Innovation Dri,·e, Sutte C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual with hearing or pecch disabilities can reach u by using the 7-1-1 relay service.\nwww.ll linoisAtlomcyGencral.gov\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage 2\nOn July 26, 2023 , this office asked the Council or its representative to provide a\nwritten response to this office in which it addressed Mr. Dyer's allegations. On August 2, 2023 ,\nthe Council responded. On August 4, 2023, this office forwarded the Council's answer to Mr.\nDyer; he replied on August 9, 2023, and September 1, 2023. On August 29, 2023, this office\nrequested additional information from the Council. On October 2, 2023 , the Council submitted a\nsupplemental answer, which this office then forwarded to Mr. Dyer. On October 11, 2023, Mr.\nDyer submitted a reply to the Council's supplemental answer.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSufficiency of Agenda: Section 2.02(c) of OMA\nSection 2.02(c) of OMA provides that \"[a]ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting. \"2 OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective\nJanuary 1, 2013, added section 2.02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\nbody would be taking final action:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n* * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that - that people\nwho follow their units of local government know what they're\ngoing to be acting upon. (Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\nThe Public Access Bureau has determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\n2\n\n5 ILCS 120/2 .02(c) (West 2022).\n\nOffice of the Ill inois Attorney Genera l\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage 3\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\nnew city administrator to a five year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate ection 2.02(c) of OMA).\nThe agenda for the Council's July 18, 2023, meeting stated, in relevant part\n\"Discussion and possible action on censure[.]\" 3 The minutes for the July 18, 2023, meeting state\nthat the Council voted on a motion to approve resolution 2023-22, which would censure Mr.\nDyer and two other aldermen. 4 Resolution 2023-22 indicates that the censure was for the\naldermen's previous vote of \"no confidence\" in the Mayor for alleged harassment at a time before\nthere had been any investigations conducted to confinn the veracity of the allegations. The\nresolution stated that an independent counsel's investigation concluded that the Mayor's alleged\nconduct did not rise to the level of harassment. The resolution further stated that \"the failure to\ninvestigate the allegations against the Mayor prior to taking any vote has resulted in tens of\nthousands of dollars of legal fees which could have been avoided if the allegations had been\nproperly investigated prior to any such vote[.]\" 5\nThe minutes also reflect that Mr. Dyer made a motion to censure Mayor Matt\nCarter. 6 In his Request for Review, Mr. Dyer explained that his intention in making the motion\n\"was to demonstrate that the agenda item was not sufficiently specific to satisfy the requirements\nof OMA\" and he \"stated during the meeting that this demonstrated that the agenda was not\nspecific enough[.]\" 7\nIn its response to this office, the Council argued that the agenda item quoted\nabove was sufficient to put the public on notice that someone was probably going to be the\nsubject of a censure vote. The Council contended that it was not feasible to be more specific on\nthe agenda because it did not yet know who would be the subject of the vote, arguing that \"[u]ntil\nthe Council meeting, at which this topic was discussed, the Council did not know who would be\ncensured because the Council could only discuss the topic collectively at an open meeting.\" 8 It\nargued that at the time it prepared the agenda, there were still attempts underway to persuade\n3Silvis City Council, Agenda Item I (July 18 , 2023).\n4\n\nSilvis City Council, Meeting, July 18, 2023 , Minutes [5-6).\n\n5Resolution No. 2023-22, A Resolution to Censure Alderman Joshua Dyer, Richard Lohse, and\n\nTony Trulson, at [2].\n6Silvis City Council, Meeting, July 18, 2023 , Minutes [5].\n7\n\nE-mail from Joshua M. Oyer, 4th Ward Alderman, to Public Access Counse lor (July 21 , 2023).\n\n8\n\nLetter from Keri-Lyn J. Krafthefer, Ancel Glink, to Laura S. Ha1ter, Deputy Bureau Ch ief, Office\nofth Attorney General (August 2, 2023), at 2.\n\nOffice of the Ill inois Attorney Genera l\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage4\n\"certain aldermen [to] acknowledge their actions against the Mayor were predicated upon\nincomplete infonnation.\" 9 The Council asserted that if those aldermen made such an\nacknowledgement they would not have been the subject of a censure vote.\nMr. Dyer maintained that the agenda item was overly generic and did not inform\nthe public \"who generically (i.e. an outside entity, a class of city employee, a member of the\ncouncil, etc.)\" would be subject to a cen ure vote. 10\nIn a related context, the Public Access Bureau has previously detennined that\noverly-generic agenda items pertaining to personnel do not meet the requirements of section\n2.02(c) of OMA. See, for example, Ill. Att'y Gen . PAC Req . Rev. Ltr. 50745, issued January I 7,\n2018, at 2-3 (agenda item \"Discussion of Personnel Matters (Possible Action Items)\" did not\nprovide general subject matter of vote to remove treasurer); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n48630, issued August 31, 2017, at 3-4 (agenda items \"Action Regarding Executive Session\nIssues\" and \"Personnel- Section 2 (c) (])\" did not provide general subject matter of vote to\nappoint village administrator); Ill. Att'y Gen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25,\n2017, at 4-5 (agenda item \"Employment of Personnel\" did not provide general subject matter of\nvote to approve administrators' salaries). This office has also noted, however, that section\n2.02(c) of OMA generally does not require names to be listed on an agenda in connection with\npersonnel transactions. Further, this office has explained that\nto comply with section 2.02(c), an agenda item for personnel\nactions must at least reference the category or categories of\nemployees at issue, such as teachers, bus drivers, social workers,\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\nacting upon. Ill. Att'y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\nThis office has previously concluded that an agenda item stating \"Approval of Board Resolution\nfor Censure of Board Trustee\" contained the details necessary to inform the public of the general\nsubject matter of the resolution. Ill. Att'y Gen. PAC Req. Rev. Ltr. 30969, issued October 25,\n2018, at 2. In that agenda item, the public body did not name the specific individual who would\nbe censured, but identified that it would be a trustee.\n\n9Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Laura S. Harter, Deputy Bureau Ch ief, Office\nofth Attorney General (August 2, 2023), at 2.\n10\n\nE-mai l from Joshua M. Dyer, 4th Ward Alderman , to Public Acee s Counselor (July 21, 2023).\n\nOffice of the Ill inois Attorney Genera l\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage 5\nHere, the Council's July 18, 2023 , meeting agenda gave notice of the type of\naction it was considering, but it did not provide any general indication of who might be subject to\ncensure. As explained above, this office has previously concluded that in most instances, a\npublic body is not required to include in its agendas the names of individuals who are the\nsubjects of final actions; identifying general categories of individuals satisfies the requirements\nof section 2.02(c) of OMA. The agenda in question did not identify the category of individuals\nwho were potentially subject to censure, nor was it apparent from use of the term \"censure.\"\nBlack's Law Dictionary defines \"censure\" as \"[a]n official reprimand or condemnation; an\nauthoritative expression of disapproval or blame; reproach.\" 11 It defines a \"censure motion\" as\n\"[a]n application calling for an official reprimand or condemnation of an official, esp. a\ngovernment official.\" 12 Based on the common understanding of the terms \"censure\" and\n\"censure motion,\" it could be reasonably inferred that the Council intended to reprimand a\ngovernment official rather than a member of the public, but even the category of \"government\nofficial\" is overly broad. Although the Council argued that it was not certain at the time it\nprepared the agenda who would be censured, it is clear from the resolution that it was\nconsidering censuring its own members. Therefore, the Council's agenda could have specified\nthe general category of government officials- aldermen or Council members- who might have\nbeen the subject of the. censure. Accordingly, this office concludes that the Council's July 18,\n2023, agenda item \"[d]iscussion and possible action on censure\" did not adequately notify the\npublic of the general subject matter of the censure resolution that was the subject of final action\nat that meeting, in violation of section 2.02(c) of OMA. Although there does not appear to be an\nappropriate remedy at this time, this office reminds the Council that for future meetings, when it\nintends to take action affecting an individual or individuals, to provide notice to the public of at\nleast the category of individuals that will be affected by the Council's action.\n\nSecret Meeting\nThe requirements of OMA apply to each \"meeting\" of a public body. 5 ILCS\n120/ 1 (West 2022). Section 1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)) defines \"meeting\" as:\n[A ]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[. ]\n\n11\n\nB lack's Law Dictionary 277 (11th ed. 2019).\n\n12\n\nB lack's Law Dictionary 277 ( I Ith ed. 2019).\n\nOffice of the Ill inois Attorney Genera l\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage 6\nPursuant to Section 2-31 of the City Code, 13 the Council is comprised of a mayor\nand two aldermen from each ward. The City has four wards; therefore, the Council has nine\nmembers. Accordingly, five members constitute a quorum, and a majority of the quorum is three\nmembers. Therefore, contemporaneous, interactive communications involving at least three\naldermen exchanged for \"the purpose of discussing public business\" would ordinarily constitute\na meeting of the Council which would be subject to the procedural safeguards and requirements\nof OMA.\nThe basis for Mr. Dyer's allegation of a secret meeting was an exchange at the\nJuly 18, 2023, Council meeting during which the Council discussed removing Mr. Dyer and the\ntwo other aldermen who were the ubject of the censure resolution from their committee\nassignments. One of the censured aldermen criticized the committee assignment process. When\nquestioned about the committee assignments, Alderman Craig Pirmann, who made the motion\nfor the assignments, stated, \"Just to clarify, it was the other five. aldem1en. We all talked about it.\nYou can ask any one of them .\" Mr. Dyer is then heard stating, \"that sounds like an illegal\nmeeting.\" Mr. Pirmann responds, \"No. Not at the same time. Each one had an oppmtunity to\nsubmit what they wanted. That's it. There was no O-M-A violation. They were all-and methey were all offered the opportunity to submit their ideas.\" 14\nIn its August 2, 2023 response to this office, the Council argued that there was no\nimproper discussion among a majority of a quornm of Council members, only a series of one-onone conversations, as Mr. Pirmann stated during the meeting. Upon reviewing the Council's\nAugust 2, 2023, response, this office asked for more information about the one-on-one\nconversations, including a description of how the conversations were conducted, when each\nconversation was held, and the nature of the conversations. This office also requested any\nrecords documenting the conversations, such as text messages or e-mails.\nIn its October 2, 2023, response to this office's follow-up questions, legal counsel\nfor the Council offered a different explanation for Mr. Pirmann's comments during the July 18,\n2023, meeting. The response stated that \"[t]o the extent the City wrote in its August 2, 2023\ncorrespondence to the PAC that Alderman Pirmann contacted the other alderpersons individually\n\n13\n\nSilvis, Illinois Code of Ordinances, § 2-31 ,\nhttps://library.municode.com/il/silvis/codes/code_ of_ordinances?nodeld=COOR_CH2AD_ARTIICICO_DJV I GE_\nS2-3ICO.\n14\nCity of Silvis, Meeting, July 18, 2023, https://soundcloud.com/user625882465/230718_ 1816a?utm_ source=clipboard&utm_ m dium=text&utm_ campaign=social_ haring, at\napproximately I:] I :00 - I: 11 :45 .\n\nOffice of the Ill inois Attorney Genera l\n\n\fThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23 , 2024\n\nPage7\nto discuss committee assignments, that was a misunderstanding.\" 15 Legal counsel for the\nCouncil stated:\nbased on my subsequent conversations with Alde1man Pirrnann\nconcerning the City's August 2, 2023 response to the PAC, * * *\n\nAlderman Pirmann has clarified that be only had a brief in-person\nconversation with one other alderperson to discuss whether that\nalderperson has a preference concerning committee assignments.\nDuring that conversation, the alderperson responded that he did not\nhave a preference, and would serve wherever needed. That was the\nfull extent of the conversation.[ 16l\n\nIn his reply to the Council's October 2, 2023, response, Mr. Dyer pointed out the\ndiscrepancy between Mr. Pirmann's July 18, 2023, statement at the meeting and the statement he\nprovided legal counsel and questioned the veracity of the statements.\nAlthough the Council's explanation for Mr. Pirmann's comments has changed\nfrom a series of one-on-one conversations to just one one-on-one conversation, neither scenario\nconstitutes a \"meeting\" as defined by OMA. We have not received any evidence to support a\n\nconclusion that at least three Council members gathered to discuss the committee assignments\noutside of an open meeting. Accordingly, this office is unable to conclude that the Council held\nan improper meeting to discuss the committee assignments.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n\nlaura.harter@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n77429 o 202c improper J02 proper mun\n15Letter from Yevgeniy Bolotnikov, Ancel GI ink, to Laura S. Harier, Deputy Bureau Chief, Public\nAccess Bureau, Office of the lllinois Attorney General (October 2, 2023), at [I].\n16\n\nLetter from Yevgeniy Bolotnikov, Ancel Glink, to laura S. Harter, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Jllinois Attorney General (October 2, 2023), at [l ].\n\nOffice of the lll inoisArtomey Genera l\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"An alderman complained that a city council meeting agenda was too vague and that council members were meeting in secret to discuss city business. The Illinois Attorney General's Public Access Bureau reviewed the agenda complaint and found that the agenda item 'Discussion and possible action on censure' violated the Open Meetings Act because it did not provide enough information about who might be subject to censure. The Bureau did not address or make any finding on the alleged secret meetings.","card_headline":"A city council's agenda description for a censure vote","full_text_pre_backfill":null,"disposition_pre_fix":"no_violation","human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77429/","full_text":"OFFICE OF THE ATTORNEY GE ERAL\nST ATE OF ILLI O1S\n\nKWAMERAO L\nAlTORNEY GEJ\\'ERAL\n\nFebruary 23, 2024\n\nVia electronic mail\nThe Honorable Joshua M. Dyer\n4th Ward Alderman\nCity of Sil vis\n\nVia electronic mail\nMs. Keri-Lyn J. Krafthefer\nAncel Glink\n[street address redacted for site publication -- see original PDF]\nKKrafthefer@ancelglink.com\nRE: OMA Request for Review - 2023 PAC 77429\nDear Mr. Dyer and Ms. Krafthefer:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\n\nBACKGROUND\nIn a Request for Review received by this office on July 21, 2023, Mr. Joshua\nDyer, an alderman on the Silvis City Council (Council), alleged that that the Council's July 18,\n2023, meeting agenda item, \"Discussion and possible action on censure,\" did not adequately\ndescribe a matter on which the Council took final action. 1 He alleged that the Council should\nhave included names in the agenda item. Mr. Dyer also alleged that five Council members held\nsecret meetings to discuss committee assignments.\n\n1\n\nE-mail from Joshua M. Dy r, 4th Ward Alderman, to Public Ace ss Counselor (July 21, 2023).\n\n500 South 2nd Street\nSpringlicld, Illinois 62701\n(2 17) 782 -1090 • fax: (217) 782-7046\n\n115 South LaSalk Street\nC.71icago, Illinois 60603\n(312) 14-3000 • Fax: (312) 814-3806\n\n1745 Innovation Dri,·e, Sutte C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual with hearing or pecch disabilities can reach u by using the 7-1-1 relay service.\n\nOn July 26, 2023, this office asked the Council or its representative to provide a\nwritten response to this office in which it addressed Mr. Dyer's allegations. On August 2, 2023,\nthe Council responded. On August 4, 2023, this office forwarded the Council's answer to Mr.\nDyer; he replied on August 9, 2023, and September 1, 2023. On August 29, 2023, this office\nrequested additional information from the Council. On October 2, 2023, the Council submitted a\nsupplemental answer, which this office then forwarded to Mr. Dyer. On October 11, 2023, Mr.\nDyer submitted a reply to the Council's supplemental answer.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSufficiency of Agenda: Section 2.02(c) of OMA\nSection 2.02(c) of OMA provides that \"[a]ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting. \"2 OMA does not contain a definition of \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective\nJanuary 1, 2013, added section 2.02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide general notice of all matters upon which a public\nbody would be taking final action:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n* * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that - that people\nwho follow their units of local government know what they're\ngoing to be acting upon. (Emphasis added.) Remarks of Sen.\nDillard, May 16, 2012, Senate Debate on House Bill No. 4687, at\n47.\nThe Public Access Bureau has determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\n\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\nnew city administrator to a five year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate ection 2.02(c) of OMA).\nThe agenda for the Council's July 18, 2023, meeting stated, in relevant part\n\"Discussion and possible action on censure[.]\" 3 The minutes for the July 18, 2023, meeting state\nthat the Council voted on a motion to approve resolution 2023-22, which would censure Mr.\nDyer and two other aldermen. 4 Resolution 2023-22 indicates that the censure was for the\naldermen's previous vote of \"no confidence\" in the Mayor for alleged harassment at a time before\nthere had been any investigations conducted to confinn the veracity of the allegations. The\nresolution stated that an independent counsel's investigation concluded that the Mayor's alleged\nconduct did not rise to the level of harassment. The resolution further stated that \"the failure to\ninvestigate the allegations against the Mayor prior to taking any vote has resulted in tens of\nthousands of dollars of legal fees which could have been avoided if the allegations had been\nproperly investigated prior to any such vote[.]\" 5\nThe minutes also reflect that Mr. Dyer made a motion to censure Mayor Matt\nCarter. 6 In his Request for Review, Mr. Dyer explained that his intention in making the motion\n\"was to demonstrate that the agenda item was not sufficiently specific to satisfy the requirements\nof OMA\" and he \"stated during the meeting that this demonstrated that the agenda was not\nspecific enough[.]\" 7\nIn its response to this office, the Council argued that the agenda item quoted\nabove was sufficient to put the public on notice that someone was probably going to be the\nsubject of a censure vote. The Council contended that it was not feasible to be more specific on\nthe agenda because it did not yet know who would be the subject of the vote, arguing that \"[u]ntil\nthe Council meeting, at which this topic was discussed, the Council did not know who would be\ncensured because the Council could only discuss the topic collectively at an open meeting.\" 8 It\nargued that at the time it prepared the agenda, there were still attempts underway to persuade\n3 Silvis City Council, Agenda Item I (July 18, 2023).\n4\n\nSilvis City Council, Meeting, July 18, 2023, Minutes [5-6).\n\n5 Resolution No. 2023-22, A Resolution to Censure Alderman Joshua Dyer, Richard Lohse, and\n\nTony Trulson, at [2].\n6 Silvis City Council, Meeting, July 18, 2023, Minutes [5].\n7\n\nE-mail from Joshua M. Oyer, 4th Ward Alderman, to Public Access Counse lor (July 21, 2023).\n\n8\n\nLetter from Keri-Lyn J. Krafthefer, Ancel Glink, to Laura S. Ha1ter, Deputy Bureau Ch ief, Office\nofth Attorney General (August 2, 2023), at 2.\n\nOffice of the Ill inois Attorney Genera l\n\nThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\nPage4\n\"certain aldermen [to] acknowledge their actions against the Mayor were predicated upon\nincomplete infonnation.\" 9 The Council asserted that if those aldermen made such an\nacknowledgement they would not have been the subject of a censure vote.\nMr. Dyer maintained that the agenda item was overly generic and did not inform\nthe public \"who generically (i.e. an outside entity, a class of city employee, a member of the\ncouncil, etc.)\" would be subject to a cen ure vote. 10\nIn a related context, the Public Access Bureau has previously detennined that\noverly-generic agenda items pertaining to personnel do not meet the requirements of section\n2.02(c) of OMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 50745, issued January I 7,\n2018, at 2-3 (agenda item \"Discussion of Personnel Matters (Possible Action Items)\" did not\nprovide general subject matter of vote to remove treasurer); Ill. Att'y Gen. PAC Req. Rev. Ltr.\n48630, issued August 31, 2017, at 3-4 (agenda items \"Action Regarding Executive Session\nIssues\" and \"Personnel- Section 2 (c) (])\" did not provide general subject matter of vote to\nappoint village administrator); Ill. Att'y Gen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25,\n2017, at 4-5 (agenda item \"Employment of Personnel\" did not provide general subject matter of\nvote to approve administrators' salaries). This office has also noted, however, that section\n2.02(c) of OMA generally does not require names to be listed on an agenda in connection with\npersonnel transactions. Further, this office has explained that\nto comply with section 2.02(c), an agenda item for personnel\nactions must at least reference the category or categories of\nemployees at issue, such as teachers, bus drivers, social workers,\netc. Absent such general information concerning the positions\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\nacting upon. Ill. Att'y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\nThis office has previously concluded that an agenda item stating \"Approval of Board Resolution\nfor Censure of Board Trustee\" contained the details necessary to inform the public of the general\nsubject matter of the resolution. Ill. Att'y Gen. PAC Req. Rev. Ltr. 30969, issued October 25,\n2018, at 2. In that agenda item, the public body did not name the specific individual who would\nbe censured, but identified that it would be a trustee.\n\n9 Letter from Keri-Lyn J. Krafthefer, Ancel Glink, to Laura S. Harter, Deputy Bureau Ch ief, Office\nofth Attorney General (August 2, 2023), at 2.\n10\n\nE-mai l from Joshua M. Dyer, 4th Ward Alderman, to Public Acee s Counselor (July 21, 2023).\n\nHere, the Council's July 18, 2023, meeting agenda gave notice of the type of\naction it was considering, but it did not provide any general indication of who might be subject to\ncensure. As explained above, this office has previously concluded that in most instances, a\npublic body is not required to include in its agendas the names of individuals who are the\nsubjects of final actions; identifying general categories of individuals satisfies the requirements\nof section 2.02(c) of OMA. The agenda in question did not identify the category of individuals\nwho were potentially subject to censure, nor was it apparent from use of the term \"censure.\"\nBlack's Law Dictionary defines \"censure\" as \"[a]n official reprimand or condemnation; an\nauthoritative expression of disapproval or blame; reproach.\" 11 It defines a \"censure motion\" as\n\"[a]n application calling for an official reprimand or condemnation of an official, esp. a\ngovernment official.\" 12 Based on the common understanding of the terms \"censure\" and\n\"censure motion,\" it could be reasonably inferred that the Council intended to reprimand a\ngovernment official rather than a member of the public, but even the category of \"government\nofficial\" is overly broad. Although the Council argued that it was not certain at the time it\nprepared the agenda who would be censured, it is clear from the resolution that it was\nconsidering censuring its own members. Therefore, the Council's agenda could have specified\nthe general category of government officials- aldermen or Council members- who might have\nbeen the subject of the. censure. Accordingly, this office concludes that the Council's July 18,\n2023, agenda item \"[d]iscussion and possible action on censure\" did not adequately notify the\npublic of the general subject matter of the censure resolution that was the subject of final action\nat that meeting, in violation of section 2.02(c) of OMA. Although there does not appear to be an\nappropriate remedy at this time, this office reminds the Council that for future meetings, when it\nintends to take action affecting an individual or individuals, to provide notice to the public of at\nleast the category of individuals that will be affected by the Council's action.\n\nSecret Meeting\nThe requirements of OMA apply to each \"meeting\" of a public body. 5 ILCS\n120/ 1 (West 2022). Section 1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)) defines \"meeting\" as:\n[A ]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[. ]\n\n11\n\nPursuant to Section 2-31 of the City Code, 13 the Council is comprised of a mayor\nand two aldermen from each ward. The City has four wards; therefore, the Council has nine\nmembers. Accordingly, five members constitute a quorum, and a majority of the quorum is three\nmembers. Therefore, contemporaneous, interactive communications involving at least three\naldermen exchanged for \"the purpose of discussing public business\" would ordinarily constitute\na meeting of the Council which would be subject to the procedural safeguards and requirements\nof OMA.\nThe basis for Mr. Dyer's allegation of a secret meeting was an exchange at the\nJuly 18, 2023, Council meeting during which the Council discussed removing Mr. Dyer and the\ntwo other aldermen who were the ubject of the censure resolution from their committee\nassignments. One of the censured aldermen criticized the committee assignment process. When\nquestioned about the committee assignments, Alderman Craig Pirmann, who made the motion\nfor the assignments, stated, \"Just to clarify, it was the other five. aldem1en. We all talked about it.\nYou can ask any one of them.\" Mr. Dyer is then heard stating, \"that sounds like an illegal\nmeeting.\" Mr. Pirmann responds, \"No. Not at the same time. Each one had an oppmtunity to\nsubmit what they wanted. That's it. There was no O-M-A violation. They were all-and methey were all offered the opportunity to submit their ideas.\" 14\nIn its August 2, 2023 response to this office, the Council argued that there was no\nimproper discussion among a majority of a quornm of Council members, only a series of one-onone conversations, as Mr. Pirmann stated during the meeting. Upon reviewing the Council's\nAugust 2, 2023, response, this office asked for more information about the one-on-one\nconversations, including a description of how the conversations were conducted, when each\nconversation was held, and the nature of the conversations. This office also requested any\nrecords documenting the conversations, such as text messages or e-mails.\nIn its October 2, 2023, response to this office's follow-up questions, legal counsel\nfor the Council offered a different explanation for Mr. Pirmann's comments during the July 18,\n2023, meeting. The response stated that \"[t]o the extent the City wrote in its August 2, 2023\ncorrespondence to the PAC that Alderman Pirmann contacted the other alderpersons individually\n\n13\n\nSilvis, Illinois Code of Ordinances, § 2-31,\nhttps://library.municode.com/il/silvis/codes/code_ of_ordinances?nodeld=COOR_CH2AD_ARTIICICO_DJV I GE_\nS2-3ICO.\n14\nCity of Silvis, Meeting, July 18, 2023, https://soundcloud.com/user625882465/230718_ 1816a?utm_ source=clipboard&utm_ m dium=text&utm_ campaign=social_ haring, at\napproximately I:] I:00 - I: 11:45.\n\nOffice of the Ill inois Attorney Genera l\n\nThe Honorable Joshua M. Dyer\nMs. Keri-Lyn J. Krafthefer\nFebruary 23, 2024\n\nPage7\nto discuss committee assignments, that was a misunderstanding.\" 15 Legal counsel for the\nCouncil stated:\nbased on my subsequent conversations with Alde1man Pirrnann\nconcerning the City's August 2, 2023 response to the PAC, * * *\n\nAlderman Pirmann has clarified that be only had a brief in-person\nconversation with one other alderperson to discuss whether that\nalderperson has a preference concerning committee assignments.\nDuring that conversation, the alderperson responded that he did not\nhave a preference, and would serve wherever needed. That was the\nfull extent of the conversation.[ 16l\n\nIn his reply to the Council's October 2, 2023, response, Mr. Dyer pointed out the\ndiscrepancy between Mr. Pirmann's July 18, 2023, statement at the meeting and the statement he\nprovided legal counsel and questioned the veracity of the statements.\nAlthough the Council's explanation for Mr. Pirmann's comments has changed\nfrom a series of one-on-one conversations to just one one-on-one conversation, neither scenario\nconstitutes a \"meeting\" as defined by OMA. We have not received any evidence to support a\n\nconclusion that at least three Council members gathered to discuss the committee assignments\noutside of an open meeting. Accordingly, this office is unable to conclude that the Council held\nan improper meeting to discuss the committee assignments.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n\nlaura.harter@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n77429 o 202c improper J02 proper mun\n15 Letter from Yevgeniy Bolotnikov, Ancel GI ink, to Laura S. Harier, Deputy Bureau Chief, Public\nAccess Bureau, Office of the lllinois Attorney General (October 2, 2023), at [I].\n16\n\nLetter from Yevgeniy Bolotnikov, Ancel Glink, to laura S. Harter, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Jllinois Attorney General (October 2, 2023), at [l ].\n\nOffice of the lll inoisArtomey Genera l"}
{"id":1429,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-10-06","case_number":null,"request_numbers":["77468"],"title":"Cook County Board of Review did not violate OMA at budget hearing","filename":"77468, issued October 6, 2023.pdf","rel_path":null,"word_count":1441,"summary":"The requester alleged that the Cook County Board of Review violated the Open Meetings Act by gathering during a Finance Committee budget hearing, but the PAC found no evidence of improper deliberations.","plain_summary":"A citizen complained that members of the Cook County Board of Review met improperly during a budget hearing. The Attorney General's office reviewed the video of the meeting and found no evidence that the Board members held a private discussion or deliberation. Therefore, the office closed the case without finding a violation.","holding":"The PAC determined that no further action is warranted because the presence of Board members at a committee meeting did not constitute an OMA violation.","legal_question":"Whether the presence of a quorum of Board of Review members at a separate committee's public budget hearing constituted an improper 'meeting' under the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Cook County Board of Review","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting definition","subject_description":"The requester alleged that Board of Review members engaged in an improper meeting while attending a Cook County Board of Commissioners Finance Committee budget hearing.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/77468, issued October 6, 2023.pdf","sha256":"db1724e298d2844937c81066e8b97b3edf5d9238cea643d1103a5a1e8b5d570c","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Open Meetings Act","quorum","budget hearing","meeting definition"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 6, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77468\nDear\nOn July 25, 2023, you submitted this Request for Review alleging that the Cook\nCounty Board of Review ( Board) violated the Open Meetings Act ( OMA) ( 5 ILCS 120/ 1 et seq.\n\nWest 2022)) in connection with a July 25, 2023, meeting of the Finance Committee\nCommittee) of the Cook County Board of Commissioners.\n\nFor the reasons set forth below, the\n\nPublic Access Bureau has determined that no further action is warranted in this matter.\nAs an initial matter, section 3.5(a) of OMA (5 ILCS 120/3.5(a) ( West 2022))\nprovides, in pertinent part, that \"[ a] person who believes that a violation of this Act by a public\n\nbody has occurred may file a request for review with the Public Access Counselor,\" which \"must\ninclude a summary of the facts supporting the allegation.\"\n\nYou alleged that during the\n\nCommittee's annual budget hearing on July 25, 2023, \"the 3 sitting Cook County Board of\nReview Commissioners were present and provided testimony as to what their budget request is\n\nand answered individual Board Commissioners' questions.\" 1 Further, you have limited your\nallegations solely to the gathering of Board members, acknowledging that the Committee\n\ncomplied with the notice requirements of OMA for its July 25, 2023, budget hearing.\nFor the requirements of OMA to apply, a gathering must constitute a \" meeting\" as\ndefined by section 1.02 of OMA ( 5 ILCS 120/ 1.02 ( West 2022)):\nMeeting\" means any gathering, whether in person or by\n\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\n\nmessaging), or other means of contemporaneous interactive\n1Request for Review from\n\nto Public Access [ Counselor] ( July 25, 2023).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fOctober 6, 2023\nPage 2\n\ncommunication, of a majority of a quorum of the members of a\n\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nIf a gathering of public body members is determined to be a \" meeting,\" then all the requirements\nof OMA apply, including proper posting of notice and an agenda ( 5 ILCS 120/ 2.02) ( West\n\n2022)), and keeping minutes (5 ILCS 120/2.06 (West 2022)).\nThe Board is comprised of three members. Accordingly, a quorum of the Board\nis two members, and a majority of the quorum for the purposes of OMA would also consist of\n\ntwo members. Therefore, if any two members of the Board gathered and held deliberative\ndiscussions of public business during the hearing, those discussions would have constituted a\n\nmeeting of the Board subject to the procedural safeguards and requirements of OMA. It is\nundisputed that all three Board members attended the July 25, 2023, Committee budget hearing. 2\nThe Office of the Attorney General has stated that \" whether a gathering falls\n\nwithin the definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att' y Gen. Op. No. S- 726, issued March 22, 1974, at 126. In Opinion 95-\n\n004 (Ill. Att'y Gen. Op. No. 95-004, issued July 14, 1995, at 10), the Attorney General explained\nthat \"[ i]n theory, there is no absolute prohibition against the members of a public body attending\n\nan 'informational meeting' without triggering the application of\" OMA. The Attorney General\nfurther explained that the \" mere fact that a majority of a quorum of the members of a public body\n\nattend and participate in a bona fide presentation on new legislative developments in an area of\npublic concern\" did not make the presentation subject to OMA. Ill. Att'y Gen. Op. No. 95- 004,\n\nat 10. The Attorney General concluded, however, that the gathering at issue fell within the scope\nof OMA because a \" few county board members\" made \"[ d] eliberational statements\" and engaged\n\nin \"unrecorded discussions\" amongst themselves. Ill. Att'y Gen. Op. No. 95-004, at 11; see also\nNabhani v. Coglianese, 552 F. Supp. 657, 661 ( N.D. Ill. 1982) ( a gathering does not constitute a\n\nmeeting for purposes of OMA when the members of the public body do not participate in\nexamination or weighing of reasons for or against a course of action, an exchange of facts\n\npreliminary to a decision, or an attempt to reach accord on a specific matter of public business).\nConsistent with this authority, in 2016 PAC 38142, the Public Access Bureau was unable to find\n\nthat a Trustee Workshop convened by the Village Clerk and attended by a majority of a quorum\nof members of the Board constituted a meeting without any evidence that the members\n\ncollectively engaged\" in deliberative discussions of public business. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 38142, issued September 2, 2016, at 3.\n\n2Although Commissioners Cardenas and Steele attended the hearing in person, our review of the\nJuly 25, 2023, hearing reflected that Commissioner Rogers remotely attended via video conference.\n\n\fOctober 6, 2023\nPage 3\n\nAs noted above, you have alleged that all three Board members attended the\nCommittee meeting, providing testimony and answering individual questions posed by\n\nCommittee members. However, you have not alleged that at least two Board members\ncollectively engaged in deliberative discussions of public business during that meeting.\n\nNonetheless, this office has reviewed a publicly-available recording of the approximately 90minute Committee meeting. 3 At the start of the meeting, Board Chair Cardenas provided the\n\nCommittee with a 10-minute summary introduction of the Board's accomplishments over the\nrelevant period, accompanied by a PowerPoint presentation.\n\nFor the next hour and twenty\n\nminutes, individual Committee members asked various questions of the Board and its staff,\nranging from topics concerning budget allocation, staffing issues, information technology\n\nconcerns, and the like. In turn, individual Board members or their staff answered these\nquestions, at all times directly addressing Committee members when providing their testimony.\n\nAt no time during the meeting did any two or more Board members engage in discussion\namongst themselves.\n\nIn fact, one of the few, if not the only, instances of a Board member\n\ndirectly referencing another Board member involved a statement from Commissioner Rogers\npraising the work of his two fellow Board members who each assumed office in December 2022\n\neven so, Commissioner Rogers' compliment was made directly to the Committee.\nAlthough all three members of the Board participated in the July 25, 2023,\nhearing, that hearing was not conducted by the Board and the Board did not engage in\n\ndeliberations or receive information in anticipation of taking final action. Rather, the Board\nconveyed information for the Committee to consider in the Committee' s deliberations.\n\nUnder\n\nthese circumstances, the requirements of OMA clearly were applicable to the Committee, and it\nis undisputed that the Committee held the meeting in accordance with OMA. OMA, however, is\n\nnot intended to apply to members of a public body who appear at another public body's meeting\nto convey information that the public body holding the meeting requires for its own\n\ndeliberations. Similar to the gathering discussed in Attorney General Opinion 95-004, the\ngathering of the Board members in attendance at the Committee meeting potentially could have\n\nevolved into a Board meeting if, for example, deliberations amongst Board members broke out\nabout their budget request; however, the video recording of the Committee meeting provides no\n\nindication that two or more Board members engaged in such deliberations. Because the facts\nyou have alleged do not support the allegation that the Board violated OMA, the Public Access\n\nBureau has determined that no further action is warranted in this matter.\n\n3Cook County Board of Commissioners, Finance Committee, Meeting, July 25, 2023,\nhttps:// cook-county.legistar.com/MeetingDetail.aspx?ID=1113839& GUID=D350E966-6CF2-42B8-ABD3A5638495BA09& Options=info|&Search=.\n\n\fOctober 6, 2023\nPage 4\n\nAccordingly, this file is closed. If you have questions, please contact me at the\n\nSpringfield address on the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Bureau\n\nPublic Access Bureau\n77468 o no fi war co\ncc:\n\nVia electronic mail\nThe Honorable George A. Cardenas\n\nChairman\nCook County Board of Review\n\n118 North Clark Street\nChicago, Illinois 60602\n\ngeorge.cardenas@cookcountyil.gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Board members' presence at a committee budget hearing","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77468/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 6, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77468\nDear\nOn July 25, 2023, you submitted this Request for Review alleging that the Cook\nCounty Board of Review (Board) violated the Open Meetings Act (OMA) (5 ILCS 120/ 1 et seq.\n\nWest 2022)) in connection with a July 25, 2023, meeting of the Finance Committee\nCommittee) of the Cook County Board of Commissioners.\n\nFor the reasons set forth below, the\n\nPublic Access Bureau has determined that no further action is warranted in this matter.\nAs an initial matter, section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2022))\nprovides, in pertinent part, that \"[ a] person who believes that a violation of this Act by a public\n\nbody has occurred may file a request for review with the Public Access Counselor,\" which \"must\ninclude a summary of the facts supporting the allegation.\"\n\nYou alleged that during the\n\nCommittee's annual budget hearing on July 25, 2023, \"the 3 sitting Cook County Board of\nReview Commissioners were present and provided testimony as to what their budget request is\n\nand answered individual Board Commissioners' questions.\" 1 Further, you have limited your\nallegations solely to the gathering of Board members, acknowledging that the Committee\n\ncomplied with the notice requirements of OMA for its July 25, 2023, budget hearing.\nFor the requirements of OMA to apply, a gathering must constitute a \" meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)):\nMeeting\" means any gathering, whether in person or by\n\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\n\nmessaging), or other means of contemporaneous interactive\n1 Request for Review from\n\nto Public Access [ Counselor] (July 25, 2023).\n\ncommunication, of a majority of a quorum of the members of a\n\npublic body held for the purpose of discussing public business or,\nfor a 5-member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nIf a gathering of public body members is determined to be a \" meeting,\" then all the requirements\nof OMA apply, including proper posting of notice and an agenda (5 ILCS 120/ 2.02) (West\n\n2022)), and keeping minutes (5 ILCS 120/2.06 (West 2022)).\nThe Board is comprised of three members. Accordingly, a quorum of the Board\nis two members, and a majority of the quorum for the purposes of OMA would also consist of\n\ntwo members. Therefore, if any two members of the Board gathered and held deliberative\ndiscussions of public business during the hearing, those discussions would have constituted a\n\nmeeting of the Board subject to the procedural safeguards and requirements of OMA. It is\nundisputed that all three Board members attended the July 25, 2023, Committee budget hearing. 2\nThe Office of the Attorney General has stated that \" whether a gathering falls\n\nwithin the definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att' y Gen. Op. No. S- 726, issued March 22, 1974, at 126. In Opinion 95-\n\n004 (Ill. Att'y Gen. Op. No. 95-004, issued July 14, 1995, at 10), the Attorney General explained\nthat \"[ i]n theory, there is no absolute prohibition against the members of a public body attending\n\nan 'informational meeting' without triggering the application of\" OMA. The Attorney General\nfurther explained that the \" mere fact that a majority of a quorum of the members of a public body\n\nattend and participate in a bona fide presentation on new legislative developments in an area of\npublic concern\" did not make the presentation subject to OMA. Ill. Att'y Gen. Op. No. 95- 004,\n\nat 10. The Attorney General concluded, however, that the gathering at issue fell within the scope\nof OMA because a \" few county board members\" made \"[ d] eliberational statements\" and engaged\n\nin \"unrecorded discussions\" amongst themselves. Ill. Att'y Gen. Op. No. 95-004, at 11; see also\nNabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a\n\nmeeting for purposes of OMA when the members of the public body do not participate in\nexamination or weighing of reasons for or against a course of action, an exchange of facts\n\npreliminary to a decision, or an attempt to reach accord on a specific matter of public business).\nConsistent with this authority, in 2016 PAC 38142, the Public Access Bureau was unable to find\n\nthat a Trustee Workshop convened by the Village Clerk and attended by a majority of a quorum\nof members of the Board constituted a meeting without any evidence that the members\n\ncollectively engaged\" in deliberative discussions of public business. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 38142, issued September 2, 2016, at 3.\n\n2 Although Commissioners Cardenas and Steele attended the hearing in person, our review of the\nJuly 25, 2023, hearing reflected that Commissioner Rogers remotely attended via video conference.\n\nAs noted above, you have alleged that all three Board members attended the\nCommittee meeting, providing testimony and answering individual questions posed by\n\nCommittee members. However, you have not alleged that at least two Board members\ncollectively engaged in deliberative discussions of public business during that meeting.\n\nNonetheless, this office has reviewed a publicly-available recording of the approximately 90minute Committee meeting. 3 At the start of the meeting, Board Chair Cardenas provided the\n\nCommittee with a 10-minute summary introduction of the Board's accomplishments over the\nrelevant period, accompanied by a PowerPoint presentation.\n\nFor the next hour and twenty\n\nminutes, individual Committee members asked various questions of the Board and its staff,\nranging from topics concerning budget allocation, staffing issues, information technology\n\nconcerns, and the like. In turn, individual Board members or their staff answered these\nquestions, at all times directly addressing Committee members when providing their testimony.\n\nAt no time during the meeting did any two or more Board members engage in discussion\namongst themselves.\n\nIn fact, one of the few, if not the only, instances of a Board member\n\ndirectly referencing another Board member involved a statement from Commissioner Rogers\npraising the work of his two fellow Board members who each assumed office in December 2022\n\neven so, Commissioner Rogers' compliment was made directly to the Committee.\nAlthough all three members of the Board participated in the July 25, 2023,\nhearing, that hearing was not conducted by the Board and the Board did not engage in\n\ndeliberations or receive information in anticipation of taking final action. Rather, the Board\nconveyed information for the Committee to consider in the Committee's deliberations.\n\nUnder\n\nthese circumstances, the requirements of OMA clearly were applicable to the Committee, and it\nis undisputed that the Committee held the meeting in accordance with OMA. OMA, however, is\n\nnot intended to apply to members of a public body who appear at another public body's meeting\nto convey information that the public body holding the meeting requires for its own\n\ndeliberations. Similar to the gathering discussed in Attorney General Opinion 95-004, the\ngathering of the Board members in attendance at the Committee meeting potentially could have\n\nevolved into a Board meeting if, for example, deliberations amongst Board members broke out\nabout their budget request; however, the video recording of the Committee meeting provides no\n\nindication that two or more Board members engaged in such deliberations. Because the facts\nyou have alleged do not support the allegation that the Board violated OMA, the Public Access\n\nBureau has determined that no further action is warranted in this matter.\n\n3 Cook County Board of Commissioners, Finance Committee, Meeting, July 25, 2023,\nhttps:// cook-county.legistar.com/MeetingDetail.aspx?ID=1113839& GUID=D350E966-6CF2-42B8-ABD3A5638495BA09& Options=info|&Search=.\n\nAccordingly, this file is closed. If you have questions, please contact me at the\n\nSpringfield address on the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Bureau\n\nPublic Access Bureau\n77468 o no fi war co\ncc:\n\nVia electronic mail\nThe Honorable George A. Cardenas\n\nChairman\nCook County Board of Review\n\n118 North Clark Street\nChicago, Illinois 60602\n\ngeorge.cardenas@cookcountyil.gov"}
{"id":1430,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-11-08","case_number":null,"request_numbers":["77626","77627"],"title":"Urbana School Board did not violate OMA by discussing closures in closed session","filename":"77626 77627, issued November 8, 2024.pdf","rel_path":null,"word_count":2577,"summary":"A requester alleged that the Urbana School District No. 116 Board of Education held improper closed session discussions regarding school closures and budgetary matters on January 17 and March 7, 2023. The PAC reviewed the matter and determined the Board's discussions were permissible under the Open Meetings Act.","plain_summary":"A citizen alleged that a school board improperly discussed school closures and budget cuts in closed sessions on January 17, 2023, and March 7, 2023. The Public Access Bureau reviewed the board's closed session records and determined that the board did not hold unauthorized closed session discussions on either date.","holding":"The Board of Education did not hold unauthorized closed session discussions on January 17, 2023, or March 7, 2023.","legal_question":"Whether the Board of Education violated the Open Meetings Act by discussing school closures and budgetary matters in closed sessions under the guise of collective bargaining negotiations.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)(2)"],"public_body":"Board of Education of Urbana School District No. 116","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The requester alleged the Board improperly discussed school closures and budget cuts in closed sessions instead of open meetings.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_a/Reasonable-diligence-if-did-not-discover-violation-within-60-days/77626 77627, issued November 8, 2024.pdf","sha256":"60c1cafbf69ebd2cca6b1f708f2fec56ffc5e1e8d6e49b47a5ad9b6ab6dc79dd","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","collective bargaining","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"November 8, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Susan E. Nicholas\n\nRobbins Schwartz\n55 West Monroe Street, Suite 800\nChicago, Illinois 60603 -5144\nsnicholas@robbins - schwartz. com\nRE: OMA Requests for Review – 2023 PAC 77626; 2023 PAC 77627\n\nDear\n\nand Ms. Nicholas:\nThis determination is issued pursuant to section 3.5( e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Board of Education (Board) of Urbana School District No. 1 16 did not\nhold unauthorized closed session discussions on January 17, 2023, or March 7, 2023 .\nBACKGROUND\n\nIn a Request for Review submitted on August 7, 2023,\nalleged that records he recently received in response to Freedom of Information Act (FOIA) (5\nILCS 140/1 et seq. ( West 2022)) requests indicated that the Board may have held improper\nclosed session discussions on January 17, 2023, and/ or March 7, 2023.\n\nstated that\n\non July 6, 2023, he received an email \"dated January 11, 2023, relating to a potential school\nclosure and renovation project[,]\" but \"[ t]he 'ballpark cost' communicated in the email would\nhave only provided sufficient details for initial discussions of the project.\" 1\nexplained that he suspected that the Board discussed this topic in closed session on January 17,\n1E- mail from\n\nto Counselor Bartelt (August 7, 2023).\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 2\n2023, because of the timing of the e -mail and because the Board did not discuss the topic in open\n\nsession on that date. He alleged: \" When the school closure was proposed later, it was promoted\nas creating budgetary savings in the specific District account that funds the majority of payroll\nexpenses. Prior to this FOIA response, it was not known that project discussions had preceded\nthe January 14, 2023, Board meeting.\" 2 Additionally,\nalleged that:\nIn a FOIA response received July 24, 2023, with a request\n\nfor \"financial estimates, projections, and/or analysis\" including\nsources of revenue and savings\" related to recent union and non union salary increases, the District withheld responsive records\nthat were from the closed session of the March 7, 2023, Board\nmeeting.[ 3]\n\nalleged that during either or both of these meetings, the Board improperly\ndiscussed in closed session \"budget cuts, non -union staffing levels, District facility closures, and\nother topics not proper or eligible for\" 4 closed session discussion. He further claimed:\nTo the extent that budgetary discussions might have been\nrelated to the proper subjects for collective negotiation, they took\nplace within the context of an expiring federal grant (ESSER III)\nthat was leaving an ever larger revenue shortfall. Any necessar y\nbudget cuts would have required selecting staff, services,\nprograms, and facilities from many different options and\n\ncombinations of options. These choices should have been\ndiscussed and decided in an open meeting.[5]\nOn August 11, 2023, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide , for this office' s confidential review , copies of any closed\n\nsession minutes and closed session verbatim recordings from the January 17, 2023, and March 7,\n2023, meetings. This office also asked for a detailed written response to the allegation that the\nBoard exceeded the scope of the exceptions it publicly cited when voting to enter closed session\non those dates. On August 22, 2023, outside cou nsel for the Board provided this office with\n\nthose materials, including a complete version of the Board's written response for this office's\n\n2E- mail from\n\nto Counselor Bartelt ( August 7, 2023).\n\n3E- mail from\n\nto Counselor Bartelt ( August 7, 2023).\n\n4E- mail from\n\nto Counselor Bartelt ( August 7, 2023).\n\n5E- mail from\n\nto Counselor Bartelt (August 7, 2023).\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 3\n6\n\nconfidential review, and a redacted version for this office to forward to\n\nThe\n\nBoard argued that\nRequest for Review was untimely and that its closed session\ndiscussions stayed within the scope of the sections 2(c)(1) and 2(c)(2) exceptions. 7 On\nSeptember 5, 2023,\nsubmitted a reply.\nDETERMINATION\n\nAuthority for Review\nAs an initial matter, the Board argued that\n\nRequests for Review\n\nare untimely:\nWhile\nindicates that responses to recent Freedom of\nInformation Act requests provided new knowledge which formed\nthe basis of the Requests for Review, that is not well founded for\nthe Requests for Review set forth in 2023 PAC 77626 and 2023\nPAC 77627. It is entirely speculative, not based in fact, and the\n\nRequests for Review are untimely pursuant to Section 3.5(a) of the\nOpen Meetings Act. There is nothing supporting the conclusion\nthat there was a violation in the documents provided other than\npure speculation, and it is untimely submitted.[ 8]\nIn his reply,\n\nstated:\n\nIn regard to closed meetings, members of the public are\nordinarily limited by the OMA itself to only discovering events or\nrecords that create suspicions of violations. The ability to prove or\ndisprove any suspicion is limited by the protections of closed\n\nmeeting recordings and minutes that are allowed under the OMA.\nThe public relies on the PAC to review whether the exceptions\ncited to invoke closed meeting protections were appropriately and\n\n6See 5 ILCS 120/ 3.5(c) (West 2022) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review. The requester may, but is\nnot required to, respond in writing to the answer within 7 working days and shall provide a copy of the response to\nthe public body.\").\n75 ILCS 120/ 2(c)( 1), ( c)(2) (West 202 3 Supp.).\n8Letter from Susan E. Nicholas to Illinois Attorney General, Public Access Bureau, ATTN: Joshua\nJones (August 22, 2023), at 1 -2.\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 4\nnarrowly observed, and public bodies rely on the PAC to maintain\n\nthe protections of properly closed meetings.[ 9]\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) ( West 2022)) authorizes the Public\nAccess Counselor to review the allegations in Mr. Schroeder's Request for Review. Section\n3.5( a) of OMA provides, in relevant part:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60 -day\n\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation.\nAlthough the Board argued that\nRequest for Review is untimely\nbecause the new information he stated he learned in the weeks before filing his Request for\nReview is entirely speculative as to whether the Board held an improper closed session\ndiscussion on either date, allegations by members of the public concerning closed session\ndiscussions inherently involve a degree of speculation . The particular facts of closed session\ndiscussions are generally unknowable by even the most diligent members of the public because\n\nclosed session discussions are conducted in confidence. Accordingly, a member of the public\nquestioning the propriety of a closed session discussion generally must draw reasonable\ninferences based on publicly- available factual information, which is what\nappears\nto have done here.\nallegation concerning the January 17, 2023, meeting is\nsomewhat more tenuous than his allegation concerning the March 7, 2023, meeting because his\n\nclaim concerning the prior meeting is based on the timing of an e -mail where there appeared to\nhave been no open session discussion on the subject matter, whereas his allegation concerning\nthe latter meeting is based on receiving direct insight into the contents of the closed session\ndiscussion.\n\nNonetheless, given the newly discovered facts pertaining to each closed session\n\ndiscussion that\nobtained pursuant to FOIA within the 60 days prior to his\nsubmission to this office, this office has the authority to review the two Board meetings at issue\nin his allegations.\n\n9E- mail from\nNicholas ( September 5, 2023).\n\nto Deputy Bureau Chief Jones, Counselor Bartelt, and [ Susan]\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 5\nClosed Session Discussion\n\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Accordingly, section\n2(a) of OMA10 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2( c) of OMA. 11 The\nsection 2( c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 12 See also Henry v. Anderson , 356 Ill. App. 3d 952, 996 -97 (2005) (strictly\nconstruing OMA section 2(c)(1)).\nSection 2(c)(1) of OMA permits a public body to enter closed session to discuss\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic body to determine its validity.\" The section 2(c)(1) exception is designed to protect the\nreputation and identity of specific individuals. See, for example , Ill. Att'y Gen. Pub. Acc. Op.\nNo. 15 -007, issued September 16, 2015, at 4 (finding that discussions concerning the elimination\n\nof a job position held by a single employee for budgetary reasons would not implicate an\nemployee's reputation, and therefore did not fall within the exception in section 2(c)(1)); Ill. Att'y\nGen. Pub. Acc. Op. No. 16 -013, issued December 23, 2016, at 4 (section 2(c)(1) did not\nauthorize discussion of across -the -board salary increase for a broad category of employees).\nAdditionally, section 2( c)( 2) of OMA allows discussion in closed session of\n\nc]ollective negotiating matters between the public body and its employees or their\nrepresentatives, or deliberations concerning salary schedules for one or more classes of\nemployees.\" By creating the section 2( c)( 2) exception, the General Assembly recognized \" that\nthe very nature of meaningful collective bargaining requires that certain phases of the negotiating\nprocess must be conducted privately.\" Ill. Att'y Gen. Op. No. 80 -02 4, issued August 12, 1980, at\n\n10-11. The Public Access Bureau has previously determined that the exception for collective\nnegotiating matters authorizes public bodies to enter closed session to discuss \" subjects about\nwhich the parties are going to bargain.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 52158, issued June\n14, 2018, at 3. However, the Attorney General has determined that section 2( c)( 2) \" does not\n\nencompass a discussion of unilateral budgetary actions that would affect members of collective\nbargaining units outside of active or imminent collective bargaining .\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 15 -007, issued September 16, 2015, at 7 (concluding that closed session discussion of a\n\n105 ILCS 120/ 2(a) ( West 202 3 Supp.).\n115 ILCS 120/ 2(c) (West 2023 Supp.).\n125 ILCS 120/ 2(b ) (West 2023 Supp.).\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 6\nhiring freeze was not authorized under section 2( c)( 2) of OMA even though the hiring freeze\n\nwould impact employees covered under collective bargaining agreement).\nIn the Board's non -confidential response to this office, counsel for the Board\nargued that during closed session on January 17, 2023, the Board first held a discussion that fell\nsquarely within the scope of section 2( c)( 2), and then a discussion that fell squarely within the\nscope of section 2( c)( 1). The Board asserted that \"[ d] espite the very speculative connection to an\n\nemail in January 2023, and the closed session, the subject of Wiley School was not discussed,\nnor is there any basis for the conjecture that it was.\" 13 Similarly, the Board argued that during\nclosed session on March 7, 2023, it first held a discussion authorized by section 2(c)(1), then a\ndiscussion authorized by section 2(c)(2). As to the section 2(c)(2) discussion, the Board\nasserted: \" Arguably this discussion would also fall under Section 18 of the Illinois Educational\n\nLabor Relations Act, exempting it from the Open Meetings Act entirely, as it was entirely related\nto strategy in negotiations.\" 14 Section 18 of the Illinois Educational Labor Relations Act (115\nILCS 5/18 (West 2022)) provides: \"The provisions of the Open Meetings Act shall not apply to\ncollective bargaining negotiations, including negotiating team strategy sessions, and grievance\narbitrations conducted pursuant to this Act.\" The Board submitted much of its analysis under a\n\nclaim of confidentiality, precluding this office from expressly discussing that analysis in this\ndetermination letter.\nIn his reply,\n\nstated:\n\nThe redactions in the Board' s response prevent me from\n\nresponding to most of the Board s' arguments. I am fully relying on\nthe PAC to determine whether the cited exceptions were observed\nin an appropriately narrow manner. I am especially concerned\nabout the discussion and/ or planning of budgetary cuts, facility\nclosures, and reductions in per sonnel who are outside of the\n\nrelevant collective negotiating unit(s) as issues that weren't proper\nsubjects for collective negotiation. With that stated, I'm also\nconcerned about other potential improper topics.[15]\nThis office's review of the closed session verbatim recordings from the two\nmeetings at issue confirmed that the Board focused its discussions on matters within the scope of\n13Letter from Susan E. Nicholas to Illinois Attorney General, Public Access Bureau, ATTN:\nJoshua Jones ( August 22, 2023), at 2 -3.\n\n14Letter from Susan E. Nicholas to Illinois Attorney General, Public Access Bureau, ATTN:\nJoshua Jones ( August 22, 2023), at 3.\n15E- mail from\nNicholas ( September 5, 2023).\n\nto Deputy Bureau Chief Jones, Counselor Bartelt, and [ Susan]\n\n\fMs. Susan E. Nicholas\nNovember 8, 2024\nPage 7\nthe section 2( c)( 1) and section 2( c)(2) exceptions . Under section 2( c)( 1), the Board discussed the\n\njob performance, employment, and dismissal of specific , named employees. To the extent the\nBoard's discussions under section 2(c)(1) touched on other matters, they did so briefly in the\nintertwined context of evaluating one or more employee's and/or candidate's job performance\nand/or relative merits. Similarly, under section 2(c)(2), the Board discussed the subjects of\ncollective bargaining and bargaining p ositions during active negotiations with the teachers'\nunion. To the extent the Board discussed any of the issues\nspecified in his\n\nreply —\"budgetary cuts, facility closures, and reductions in personnel who are outside of the\nrelevant collective negotiating unit(s)\"— it did so as a direct component of an appropriate\ndiscussion under section 2(c)(2). The Board did not discuss unilateral budgetary actions or other\nmatters that would merely impact employees who are union members. Rather, the discussion s\nadhered to the topic of collective negotiation matters in their own right. Under these\n\ncircumstances, this office concludes that the Board's closed session discussions on January 17,\n2023, and March 7, 2023 , did not violate OMA.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. This letter shall serve to close th ese matters. If\n\nyou have any questions, please contact me joshua.jones@ilag.gov .\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n77626 77627 o 2c1 proper 2c2 proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussions of school closures and budget cuts","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77626/","full_text":"November 8, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Susan E. Nicholas\n\nRobbins Schwartz\n55 West Monroe Street, Suite 800\nChicago, Illinois 60603 -5144\nsnicholas@robbins - schwartz. com\nRE: OMA Requests for Review – 2023 PAC 77626; 2023 PAC 77627\n\nDear\n\nand Ms. Nicholas:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Board of Education (Board) of Urbana School District No. 1 16 did not\nhold unauthorized closed session discussions on January 17, 2023, or March 7, 2023.\nBACKGROUND\n\nIn a Request for Review submitted on August 7, 2023,\nalleged that records he recently received in response to Freedom of Information Act (FOIA) (5\nILCS 140/1 et seq. (West 2022)) requests indicated that the Board may have held improper\nclosed session discussions on January 17, 2023, and/ or March 7, 2023.\n\nstated that\n\non July 6, 2023, he received an email \"dated January 11, 2023, relating to a potential school\nclosure and renovation project[,]\" but \"[ t]he 'ballpark cost' communicated in the email would\nhave only provided sufficient details for initial discussions of the project.\" 1\nexplained that he suspected that the Board discussed this topic in closed session on January 17,\n\n2023, because of the timing of the e -mail and because the Board did not discuss the topic in open\n\nsession on that date. He alleged: \" When the school closure was proposed later, it was promoted\nas creating budgetary savings in the specific District account that funds the majority of payroll\nexpenses. Prior to this FOIA response, it was not known that project discussions had preceded\nthe January 14, 2023, Board meeting.\" 2 Additionally,\nalleged that:\nIn a FOIA response received July 24, 2023, with a request\n\nfor \"financial estimates, projections, and/or analysis\" including\nsources of revenue and savings\" related to recent union and non union salary increases, the District withheld responsive records\nthat were from the closed session of the March 7, 2023, Board\nmeeting.[ 3]\n\nalleged that during either or both of these meetings, the Board improperly\ndiscussed in closed session \"budget cuts, non -union staffing levels, District facility closures, and\nother topics not proper or eligible for\" 4 closed session discussion. He further claimed:\nTo the extent that budgetary discussions might have been\nrelated to the proper subjects for collective negotiation, they took\nplace within the context of an expiring federal grant (ESSER III)\nthat was leaving an ever larger revenue shortfall. Any necessar y\nbudget cuts would have required selecting staff, services,\nprograms, and facilities from many different options and\n\ncombinations of options. These choices should have been\ndiscussed and decided in an open meeting.[5]\nOn August 11, 2023, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide, for this office's confidential review, copies of any closed\n\nsession minutes and closed session verbatim recordings from the January 17, 2023, and March 7,\n2023, meetings. This office also asked for a detailed written response to the allegation that the\nBoard exceeded the scope of the exceptions it publicly cited when voting to enter closed session\non those dates. On August 22, 2023, outside cou nsel for the Board provided this office with\n\nthose materials, including a complete version of the Board's written response for this office's\n\n2E- mail from\n\nto Counselor Bartelt (August 7, 2023).\n\n3E- mail from\n\n6\n\nconfidential review, and a redacted version for this office to forward to\n\nThe\n\nBoard argued that\nRequest for Review was untimely and that its closed session\ndiscussions stayed within the scope of the sections 2(c)(1) and 2(c)(2) exceptions. 7 On\nSeptember 5, 2023,\nsubmitted a reply.\nDETERMINATION\n\nAuthority for Review\nAs an initial matter, the Board argued that\n\nRequests for Review\n\nare untimely:\nWhile\nindicates that responses to recent Freedom of\nInformation Act requests provided new knowledge which formed\nthe basis of the Requests for Review, that is not well founded for\nthe Requests for Review set forth in 2023 PAC 77626 and 2023\nPAC 77627. It is entirely speculative, not based in fact, and the\n\nRequests for Review are untimely pursuant to Section 3.5(a) of the\nOpen Meetings Act. There is nothing supporting the conclusion\nthat there was a violation in the documents provided other than\npure speculation, and it is untimely submitted.[ 8]\nIn his reply,\n\nstated:\n\nIn regard to closed meetings, members of the public are\nordinarily limited by the OMA itself to only discovering events or\nrecords that create suspicions of violations. The ability to prove or\ndisprove any suspicion is limited by the protections of closed\n\nmeeting recordings and minutes that are allowed under the OMA.\nThe public relies on the PAC to review whether the exceptions\ncited to invoke closed meeting protections were appropriately and\n\n6 See 5 ILCS 120/ 3.5(c) (West 2022) (\"The Public Access Counselor shall forward a copy of the\nanswer or redacted answer, if furnished, to the person submitting the request for review. The requester may, but is\nnot required to, respond in writing to the answer within 7 working days and shall provide a copy of the response to\nthe public body.\").\n75 ILCS 120/ 2(c)(1), (c)(2) (West 202 3 Supp.).\n8 Letter from Susan E. Nicholas to Illinois Attorney General, Public Access Bureau, ATTN: Joshua\n\nnarrowly observed, and public bodies rely on the PAC to maintain\n\nthe protections of properly closed meetings.[ 9]\nSection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2022)) authorizes the Public\nAccess Counselor to review the allegations in Mr. Schroeder's Request for Review. Section\n3.5(a) of OMA provides, in relevant part:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60 -day\n\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\nthe discovery of the alleged violation.\nAlthough the Board argued that\nRequest for Review is untimely\nbecause the new information he stated he learned in the weeks before filing his Request for\nReview is entirely speculative as to whether the Board held an improper closed session\ndiscussion on either date, allegations by members of the public concerning closed session\ndiscussions inherently involve a degree of speculation. The particular facts of closed session\ndiscussions are generally unknowable by even the most diligent members of the public because\n\nclosed session discussions are conducted in confidence. Accordingly, a member of the public\nquestioning the propriety of a closed session discussion generally must draw reasonable\ninferences based on publicly- available factual information, which is what\nappears\nto have done here.\nallegation concerning the January 17, 2023, meeting is\nsomewhat more tenuous than his allegation concerning the March 7, 2023, meeting because his\n\nclaim concerning the prior meeting is based on the timing of an e -mail where there appeared to\nhave been no open session discussion on the subject matter, whereas his allegation concerning\nthe latter meeting is based on receiving direct insight into the contents of the closed session\ndiscussion.\n\nNonetheless, given the newly discovered facts pertaining to each closed session\n\ndiscussion that\nobtained pursuant to FOIA within the 60 days prior to his\nsubmission to this office, this office has the authority to review the two Board meetings at issue\n\nClosed Session Discussion\n\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2022). Accordingly, section\n2(a) of OMA10 provides that all meetings of a public body must be open to the public unless the\ndiscussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. 11 The\nsection 2(c) exceptions are to be \" strictly construed, extending only to subjects clearly within\n\ntheir scope.\" 12 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996 -97 (2005) (strictly\nconstruing OMA section 2(c)(1)).\nSection 2(c)(1) of OMA permits a public body to enter closed session to discuss\nt]he appointment, employment, compensation, discipline, performance, or dismissal of specific\n\nemployees of the public body or legal counsel for the public body, including hearing testimony\non a complaint lodged against an employee of the public body or against legal counsel for the\npublic body to determine its validity.\" The section 2(c)(1) exception is designed to protect the\nreputation and identity of specific individuals. See, for example, Ill. Att'y Gen. Pub. Acc. Op.\nNo. 15 -007, issued September 16, 2015, at 4 (finding that discussions concerning the elimination\n\nof a job position held by a single employee for budgetary reasons would not implicate an\nemployee's reputation, and therefore did not fall within the exception in section 2(c)(1)); Ill. Att'y\nGen. Pub. Acc. Op. No. 16 -013, issued December 23, 2016, at 4 (section 2(c)(1) did not\nauthorize discussion of across -the -board salary increase for a broad category of employees).\nAdditionally, section 2(c)(2) of OMA allows discussion in closed session of\n\nc]ollective negotiating matters between the public body and its employees or their\nrepresentatives, or deliberations concerning salary schedules for one or more classes of\nemployees.\" By creating the section 2(c)(2) exception, the General Assembly recognized \" that\nthe very nature of meaningful collective bargaining requires that certain phases of the negotiating\nprocess must be conducted privately.\" Ill. Att'y Gen. Op. No. 80 -02 4, issued August 12, 1980, at\n\n10-11. The Public Access Bureau has previously determined that the exception for collective\nnegotiating matters authorizes public bodies to enter closed session to discuss \" subjects about\nwhich the parties are going to bargain.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 52158, issued June\n14, 2018, at 3. However, the Attorney General has determined that section 2(c)(2) \" does not\n\nencompass a discussion of unilateral budgetary actions that would affect members of collective\nbargaining units outside of active or imminent collective bargaining.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 15 -007, issued September 16, 2015, at 7 (concluding that closed session discussion of a\n\nhiring freeze was not authorized under section 2(c)(2) of OMA even though the hiring freeze\n\nwould impact employees covered under collective bargaining agreement).\nIn the Board's non -confidential response to this office, counsel for the Board\nargued that during closed session on January 17, 2023, the Board first held a discussion that fell\nsquarely within the scope of section 2(c)(2), and then a discussion that fell squarely within the\nscope of section 2(c)(1). The Board asserted that \"[ d] espite the very speculative connection to an\n\nemail in January 2023, and the closed session, the subject of Wiley School was not discussed,\nnor is there any basis for the conjecture that it was.\" 13 Similarly, the Board argued that during\nclosed session on March 7, 2023, it first held a discussion authorized by section 2(c)(1), then a\ndiscussion authorized by section 2(c)(2). As to the section 2(c)(2) discussion, the Board\nasserted: \" Arguably this discussion would also fall under Section 18 of the Illinois Educational\n\nLabor Relations Act, exempting it from the Open Meetings Act entirely, as it was entirely related\nto strategy in negotiations.\" 14 Section 18 of the Illinois Educational Labor Relations Act (115\nILCS 5/18 (West 2022)) provides: \"The provisions of the Open Meetings Act shall not apply to\ncollective bargaining negotiations, including negotiating team strategy sessions, and grievance\narbitrations conducted pursuant to this Act.\" The Board submitted much of its analysis under a\n\nclaim of confidentiality, precluding this office from expressly discussing that analysis in this\ndetermination letter.\nIn his reply,\n\nstated:\n\nThe redactions in the Board's response prevent me from\n\nresponding to most of the Board s' arguments. I am fully relying on\nthe PAC to determine whether the cited exceptions were observed\nin an appropriately narrow manner. I am especially concerned\nabout the discussion and/ or planning of budgetary cuts, facility\nclosures, and reductions in per sonnel who are outside of the\n\nrelevant collective negotiating unit(s) as issues that weren't proper\nsubjects for collective negotiation. With that stated, I'm also\nconcerned about other potential improper topics.[15]\nThis office's review of the closed session verbatim recordings from the two\nmeetings at issue confirmed that the Board focused its discussions on matters within the scope of\n13 Letter from Susan E. Nicholas to Illinois Attorney General, Public Access Bureau, ATTN:\nJoshua Jones (August 22, 2023), at 2 -3.\n\nthe section 2(c)(1) and section 2(c)(2) exceptions. Under section 2(c)(1), the Board discussed the\n\njob performance, employment, and dismissal of specific, named employees. To the extent the\nBoard's discussions under section 2(c)(1) touched on other matters, they did so briefly in the\nintertwined context of evaluating one or more employee's and/or candidate's job performance\nand/or relative merits. Similarly, under section 2(c)(2), the Board discussed the subjects of\ncollective bargaining and bargaining p ositions during active negotiations with the teachers'\nunion. To the extent the Board discussed any of the issues\nspecified in his\n\nreply —\"budgetary cuts, facility closures, and reductions in personnel who are outside of the\nrelevant collective negotiating unit(s)\"— it did so as a direct component of an appropriate\ndiscussion under section 2(c)(2). The Board did not discuss unilateral budgetary actions or other\nmatters that would merely impact employees who are union members. Rather, the discussion s\nadhered to the topic of collective negotiation matters in their own right. Under these\n\ncircumstances, this office concludes that the Board's closed session discussions on January 17,\n2023, and March 7, 2023, did not violate OMA.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. This letter shall serve to close th ese matters. If\n\nyou have any questions, please contact me joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n77626 77627 o 2c1 proper 2c2 proper sd"}
{"id":1431,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-10-22","case_number":null,"request_numbers":["77643"],"title":"Cook County Board of Review violated OMA by hiring general counsel without public vote","filename":"77643, issued October 22, 2024.pdf","rel_path":null,"word_count":1653,"summary":"The PAC determined that the Cook County Board of Review did not violate OMA regarding candidate interviews but did violate OMA by hiring a General Counsel outside of a properly noticed open meeting.","plain_summary":"A citizen complained that the Cook County Board of Review hired a new General Counsel without holding a public meeting or vote. The Attorney General's office agreed, finding that the Board reached a hiring decision privately rather than in an open, public session as required by law. The Board has been asked to fix this by holding a public vote to officially ratify the appointment.","holding":"The Cook County Board of Review violated section 2(e) of the Open Meetings Act by taking final action to hire a general counsel without a public vote.","legal_question":"Whether the Cook County Board of Review violated section 2(e) of the Open Meetings Act by taking final action to hire a general counsel outside of an open meeting.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Cook County Board of Review","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The hiring of a General Counsel and Chief Ethics Officer by the Cook County Board of Review.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Taking-final-action-openly/77643, issued October 22, 2024.pdf","sha256":"67e62301d4b1ee232d796dedd38ded79cd2fa31f03983119f6ce2b0afa75c98a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["hiring","final action","open meeting","public vote","board of review"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"October 22, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Liliana Escarpita\n\nSecretary of the Board\nCook County Board of Review\n\nliliana.escarpita@cookcountyil.gov\nRE: OMA Request for Review – 2023 PAC 77643\nDear\n\nand Ms. Escarpita:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2023 Supp.)). For the reasons explained below, the Public\n\nAccess Bureau concludes that the Cook County Board of Review (Board) did not violate OMA\nin connection with interviews of candidates for the position of General Counsel and Chief Ethics\n\nOfficer (general counsel). This office further concludes, however, that the Board violated OMA\nby approving and effectuating the hiring of a specific candidate for general counsel outside of a\n\nproperly noticed open meeting.\nBACKGROUND\nOn August 8, 2023, this office received\n\nRequest for\n\nReview alleging that the Board took final action by hiring a new general counsel without doing\n\nso at a meeting held in accordance with the requirements of OMA. He argued that hiring a\ngeneral counsel required an affirmative vote by a majority of a quorum of the Board. In support\n\nof the allegation,\n\nprovided a copy of an invitation for the general counsel to\n\nindividually meet with each commissioner on June 5, 2023, and the first page of a letter on\n\nBoard letterhead dated June 21, 2023, extending a job offer for the position. This office\n\n\fMs. Liliana Escarpita\nOctober 22, 2024\n\nPage 2\nconstrued the Request for Review as alleging a violation of section 2(e) of OMA (5 ILCS\n120/ 2(e) ( West 2022)), which provides that \"[ n] o final action may be taken at a closed meeting.\n\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\"\nOn August 25, 2023, this office sent a copy of the Request for Review to the\n\nBoard and asked it to respond to the allegation in writing. This office also asked the Board to\ndescribe how the general counsel was selected for the position and to clarify whether the Board\n\napproved the hiring of the general counsel in the open session of a meeting held in accordance\nwith OMA.\nOn September 26, 2023, this office received the Board' s response, which\n\ndescribed the process that took place leading to the hiring of the new general counsel. According\nto the response, on June 1, 2023, a panel that did not include the Commissioners, but consisted of\n\nthe First Assistant Commissioners (First Assistants), the Chief Clerk, and the Secretary of the\nBoard, conducted interviews of five candidates for the position of general counsel. The response\n\nstated that the panel recommended two candidates who went on to sit for interviews with each\nCommissioner individually, on June 5, 2023. The response then stated, \"[ t]he week of June 12th,\n\nafter considerable deliberation through their First Assistants to the Secretary, a majority of\nCommissioners determined that Cristin Duffy was the most qualified and suitable candidate for\nthe Board of Review.\" 1\nOn October 4, 2023, this office forwarded a copy of the Board' s response to\n\nOn the same day,\n\nreplied. His reply included the additional\n\nallegation that by having the First Assistants meet to interview candidates, the Board likely\n\nviolated OMA because the First Assistants were acting as proxies for the Commissioners. He\nalso reiterated his allegation that the ultimate decision by a majority of the Commissioners to\n\nhire one of the candidates was a vote that should have taken place at an open public meeting.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 1989).\n\n1E- mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n\n\fMs. Liliana Escarpita\nOctober 22, 2024\n\nPage 3\nWhether Interviews by First Assistant Commissioners Constituted a \" Meeting\"\nThe requirements of OMA apply to any gathering of members of a public body\nthat constitutes a \" meeting\" as defined by section 1.02 of OMA ( 5 ILCS 120/ 1.02 ( West 2022)):\n\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means ( such\n\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\n\nfor a 5-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business.\n\nEmphasis added.)\nAccordingly, for a 5-member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\n\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\nPursuant to section 5-5(c) of the Property Tax Code ( 35 ILCS 200/ 5-5(c) (West\n\n2022)), 2 the Board consists of three elected Commissioners. The Commissioners, not the First\nAssistants, are the members who must be present for a gathering to constitute a meeting of the\n\nBoard subject to the requirements of OMA. According to the Board's response, no\nCommissioners were present during the first round of interviews on June 1, 2023, which were\n\nconducted by the First Assistants, the Chief Clerk, and the Secretary of the Board. Although\nargued that the First Assistants were acting as proxies for the actual Commissioners,\n\nthe plain language of the definition of \"meeting\" requires \"members of the public body\" to\nparticipate in a gathering. No provision of OMA provides that when members of a public body\ndelegate responsibilities such as interviewing candidates, those subordinates stand in the shoes of\n\nthe members of the public body themselves and are subject to the requirements of OMA.\nAccordingly, there is no basis for this office to conclude that the Board held an improper\n\nmeeting.\nWhether the Board's Decision to Hire a Specific Candidate Constituted Final Action\nSection 2(e) of OMA provides: \"No final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\n\nconsidered and other information that will inform the public of the business being conducted.\"\n2That provision provides: \" In each county with 3,000,000 or more inhabitants, there is created a\nboard of review. The board of review shall consist of 3 commissioners[.]\"\n\n\fMs. Liliana Escarpita\nOctober 22, 2024\n\nPage 4\nWhen a public body reaches a consensus and implements a decision outside of an open meeting,\nthat constitutes final action in violation of OMA. See Howe v. Retirement Board of the\n\nFiremen's Annuity & Benefit Fund, 2013 IL App (1st) 122446, ¶29 (2013) (vacating the board's\ndecision to deny disability benefits because the board had circulated the decision for signatures\n\nprivately rather than voting on it in open session); Lawrence v. Willams, 2013 IL App (1st)\n130757, ¶ 21 ( 2013) ( signing of written decisions by two out of three board members outside of\n\nan open meeting constituted final action in violation of OMA); Ill. Att'y Gen. PAC Req. Rev.\nLtr. 58555, 58614, 58615, issued August 20, 2019, at 3 ( public body took final action by\n\nreaching a consensus to prohibit camping at a park and implementing that decision by posting\nno camping\" signs before voting on the matter at a subsequent meeting).\nIn its response to this office, the Board explained that the two candidates\n\nrecommended by the panel of First Commissioners met individually with each Commissioner on\nJune 5, 2023, before a candidate was selected the following week. The Board emphasized that\n\nCommissioners did not directly deliberate or hold contemporaneous or interactive\ncommunications with each other, but acknowledged that they held \" considerable deliberation\n\nthrough their First Assistants Commissioners to the Secretary[ ] before \"a majority of\nCommissioners determined that Cristin Duffy was the most qualified and suitable candidate for\n\nthe Board of Review.\" 3 Although it is not clear from the Board's response precisely how a\nmajority of Commissioners reached a consensus, the Board acknowledged that \" the decision to\nhire the General Counsel and Chief Ethics Officer did not take place at an open or closed\n\nmeeting so no responsive agenda or minutes exists.\" 4 Because the Board reached a consensus\nduring the week of June 12, 2023, and implemented the decision by offering the position on June\n\n21, 2023, it took final action outside of an open meeting in violation of section 2(e) of OMA.\nThis office requests that the Board remedy that violation by holding a public vote ratifying the\n\nappointment.\n\n3E- mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n4\n\nE-mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n\n\fMs. Liliana Escarpita\nOctober 22, 2024\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at michael. knight@ilag. gov.\nVery truly yours,\n\nMICHAEL J. KNIGHT\n\nAssistant\nAttorney\nGeneral\nPublic\nAccess\nBureau\n77643 o 102 proper 2e improper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Hiring of a General Counsel and Chief Ethics Officer","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77643/","full_text":"October 22, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Liliana Escarpita\n\nSecretary of the Board\nCook County Board of Review\n\nliliana.escarpita@cookcountyil.gov\nRE: OMA Request for Review – 2023 PAC 77643\nDear\n\nand Ms. Escarpita:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2023 Supp.)). For the reasons explained below, the Public\n\nAccess Bureau concludes that the Cook County Board of Review (Board) did not violate OMA\nin connection with interviews of candidates for the position of General Counsel and Chief Ethics\n\nOfficer (general counsel). This office further concludes, however, that the Board violated OMA\nby approving and effectuating the hiring of a specific candidate for general counsel outside of a\n\nproperly noticed open meeting.\nBACKGROUND\nOn August 8, 2023, this office received\n\nRequest for\n\nReview alleging that the Board took final action by hiring a new general counsel without doing\n\nso at a meeting held in accordance with the requirements of OMA. He argued that hiring a\ngeneral counsel required an affirmative vote by a majority of a quorum of the Board. In support\n\nof the allegation,\n\nprovided a copy of an invitation for the general counsel to\n\nindividually meet with each commissioner on June 5, 2023, and the first page of a letter on\n\nconstrued the Request for Review as alleging a violation of section 2(e) of OMA (5 ILCS\n120/ 2(e) (West 2022)), which provides that \"[ n] o final action may be taken at a closed meeting.\n\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\"\nOn August 25, 2023, this office sent a copy of the Request for Review to the\n\nBoard and asked it to respond to the allegation in writing. This office also asked the Board to\ndescribe how the general counsel was selected for the position and to clarify whether the Board\n\napproved the hiring of the general counsel in the open session of a meeting held in accordance\nwith OMA.\nOn September 26, 2023, this office received the Board's response, which\n\ndescribed the process that took place leading to the hiring of the new general counsel. According\nto the response, on June 1, 2023, a panel that did not include the Commissioners, but consisted of\n\nthe First Assistant Commissioners (First Assistants), the Chief Clerk, and the Secretary of the\nBoard, conducted interviews of five candidates for the position of general counsel. The response\n\nstated that the panel recommended two candidates who went on to sit for interviews with each\nCommissioner individually, on June 5, 2023. The response then stated, \"[ t]he week of June 12th,\n\nafter considerable deliberation through their First Assistants to the Secretary, a majority of\nCommissioners determined that Cristin Duffy was the most qualified and suitable candidate for\nthe Board of Review.\" 1\nOn October 4, 2023, this office forwarded a copy of the Board's response to\n\nOn the same day,\n\nreplied. His reply included the additional\n\nallegation that by having the First Assistants meet to interview candidates, the Board likely\n\nviolated OMA because the First Assistants were acting as proxies for the Commissioners. He\nalso reiterated his allegation that the ultimate decision by a majority of the Commissioners to\n\nhire one of the candidates was a vote that should have taken place at an open public meeting.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\n\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\n\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\n\n1E- mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n\nWhether Interviews by First Assistant Commissioners Constituted a \" Meeting\"\nThe requirements of OMA apply to any gathering of members of a public body\nthat constitutes a \" meeting\" as defined by section 1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)):\n\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\n\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\n\nfor a 5-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business.\n\nEmphasis added.)\nAccordingly, for a 5-member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\n\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\nPursuant to section 5-5(c) of the Property Tax Code (35 ILCS 200/ 5-5(c) (West\n\n2022)), 2 the Board consists of three elected Commissioners. The Commissioners, not the First\nAssistants, are the members who must be present for a gathering to constitute a meeting of the\n\nBoard subject to the requirements of OMA. According to the Board's response, no\nCommissioners were present during the first round of interviews on June 1, 2023, which were\n\nconducted by the First Assistants, the Chief Clerk, and the Secretary of the Board. Although\nargued that the First Assistants were acting as proxies for the actual Commissioners,\n\nthe plain language of the definition of \"meeting\" requires \"members of the public body\" to\nparticipate in a gathering. No provision of OMA provides that when members of a public body\ndelegate responsibilities such as interviewing candidates, those subordinates stand in the shoes of\n\nthe members of the public body themselves and are subject to the requirements of OMA.\nAccordingly, there is no basis for this office to conclude that the Board held an improper\n\nmeeting.\nWhether the Board's Decision to Hire a Specific Candidate Constituted Final Action\nSection 2(e) of OMA provides: \"No final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\n\nconsidered and other information that will inform the public of the business being conducted.\"\n2 That provision provides: \" In each county with 3,000,000 or more inhabitants, there is created a\n\nWhen a public body reaches a consensus and implements a decision outside of an open meeting,\nthat constitutes final action in violation of OMA. See Howe v. Retirement Board of the\n\nFiremen's Annuity & Benefit Fund, 2013 IL App (1st) 122446, ¶29 (2013) (vacating the board's\ndecision to deny disability benefits because the board had circulated the decision for signatures\n\nprivately rather than voting on it in open session); Lawrence v. Willams, 2013 IL App (1st)\n130757, ¶ 21 (2013) (signing of written decisions by two out of three board members outside of\n\nan open meeting constituted final action in violation of OMA); Ill. Att'y Gen. PAC Req. Rev.\nLtr. 58555, 58614, 58615, issued August 20, 2019, at 3 (public body took final action by\n\nreaching a consensus to prohibit camping at a park and implementing that decision by posting\nno camping\" signs before voting on the matter at a subsequent meeting).\nIn its response to this office, the Board explained that the two candidates\n\nrecommended by the panel of First Commissioners met individually with each Commissioner on\nJune 5, 2023, before a candidate was selected the following week. The Board emphasized that\n\nCommissioners did not directly deliberate or hold contemporaneous or interactive\ncommunications with each other, but acknowledged that they held \" considerable deliberation\n\nthrough their First Assistants Commissioners to the Secretary[ ] before \"a majority of\nCommissioners determined that Cristin Duffy was the most qualified and suitable candidate for\n\nthe Board of Review.\" 3 Although it is not clear from the Board's response precisely how a\nmajority of Commissioners reached a consensus, the Board acknowledged that \" the decision to\nhire the General Counsel and Chief Ethics Officer did not take place at an open or closed\n\nmeeting so no responsive agenda or minutes exists.\" 4 Because the Board reached a consensus\nduring the week of June 12, 2023, and implemented the decision by offering the position on June\n\n21, 2023, it took final action outside of an open meeting in violation of section 2(e) of OMA.\nThis office requests that the Board remedy that violation by holding a public vote ratifying the\n\nappointment.\n\n3E- mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n4\n\nE-mail from Liliana Escarpita, Secretary of the Board, Cook County Board of Review, to Steven\nSilverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (September 26, 2023).\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at michael. knight@ilag. gov.\nVery truly yours,\n\nMICHAEL J. KNIGHT\n\nAssistant\nAttorney\nGeneral\nPublic\nAccess\nBureau\n77643 o 102 proper 2e improper co"}
{"id":1432,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-05-10","case_number":null,"request_numbers":["77651"],"title":"Metra Board did not violate OMA by discussing public business during transit trip","filename":"77651, issued May 10, 2024.pdf","rel_path":null,"word_count":2357,"summary":"The requester alleged that the Metra Board of Directors held an improper non-public meeting during a train and bus trip to a board meeting location; the PAC determined no OMA violation occurred.","plain_summary":"A citizen complained that Metra board members held an illegal private meeting while traveling together on a train and bus to an official board meeting. The Attorney General's office investigated and found no evidence that the board members discussed or made decisions about public business during the trip. Therefore, the office closed the case, finding no violation of the Open Meetings Act.","holding":"The PAC concluded that the Metra Board did not violate the Open Meetings Act because there was no evidence that a majority of a quorum deliberated on public business during the transit.","legal_question":"Whether the Metra Board of Directors violated the Open Meetings Act by discussing public business during a transit trip prior to a properly noticed open meeting.","disposition":"no_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Metra Board of Directors","requesting_party":"Anonymous","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"Alleged improper deliberation of public business by board members during transit to a public meeting.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/77651, issued May 10, 2024.pdf","sha256":"5cf097de4517fb8a09d8bb69b803dd74d95ac34c7666d2a880b9d41608339e30","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","public business","quorum","deliberation","Metra"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"May 10, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. R. John Anderson\n\nActing General Counsel\nMetra\n547 West Jackson Boulevard, 15th Floor\nChicago , Illinois 60661\nRJAnderson@metrarr. com\n\nRE: OMA Request for Review – 2023 PAC 77651\nDear\n\nand Mr. Anderson :\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(e) ( West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Metra Board of Directors (Board) did not violate OMA on May 17,\n2023.\nOn August 9 ,2023,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Board violated OMA on May 17, 2023, by holding a non -public\nmeeting while traveling from Chicago to Will County. Citing a Chicago Tribune news article\nabout the \"educational train trip ,\"1\nalleged that the Board improperly held a meeting at a\ntrain station in Chicago, during the train ride, and during the shuttle bus ride to the Will County\n\nOffice Building without adhering to the requirements of OMA .\n\ndid not dispute that the\n\n1Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $ 10,000., Chicago Tribune ( August 8, 2023 , 5: 00 a .m .),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board-members- on-a-train -ride-to-a-monthly -meetingit -cost-the-agency -more- than -10000/.\n\n\fMr. R. John Anderson\nMay 10, 2024\nPage 2\nBoard held a properly -noticed open meeting once it arrived at the Will County Office Building,\n\nbut alleged that the Board improperly discussed public business during the journey. He quoted\nthe following passage from the Tribune article:\nDuring the roughly 40 -mile trip, board members saw work\nat a crossing between Metra and freight rail tracks. They learned of\nideas for upgrades, including adding a third track along part of the\n\nroute and the potential repair and use of a section of old track that\ncrosses the Dan Ryan Expressway.\nBoard members passed the site of a planned train yard\nexpansion, and the site of planned work to unsnarl Metra and\n\nfreight train traffic that is also intended to create a connection\nbetween Metra's SouthWest Service and Rock Island lines. They\npassed the future site of the new Auburn Park station and saw\nconstruction at Metra's Blue Island -Vermont St. station.[2]\nalso noted that a Board member was quoted as saying that \"[ t]he trip allowed members\nto see firsthand how some of the projects can reduce delays between the freight and commuter\nrailroads and otherwise benefit Metra [.]\"3\nOn August 14 , 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Board together with a letter asking the Board to respond in writing to the\n\nallegation that it held an improper private meeting on May 17, 2023 .4 On August 31, 2023,\ne-mailed this office copies of the PowerPoint presentation and handouts for the Board during\nthe trip , which he had obtained pursuant to the Freedom of Information Act (FOIA) ( 5 ILCS\n140/ 1 et seq. ( West 2022)). On September 7 , 2023, this office received Metra' s written answer\nfrom Metra' s Acting General Counsel, R. John Anderson . On September 12 , 2023,\n\nsubmitted a reply.\n2Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $10,000., Chicago Tribune ( August 8, 2023, 5: 00 a. m.),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board-members- on-a-train -ride-to-a-monthly -meetingit -cost- the- agency -more- than -10000/.\n\n3Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $10,000 ., Chicago Tribune ( August 8, 2023, 5: 00 a. m.),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board- members- on-a-train -ride-to-a-monthly -meetingit -cost- the- agency -more- than -10000/.\n4This office has jurisdiction in this matter under section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) ( West\n2022)) because although\nsubmitted this Request for Review more than 60 days after the alleged violation, it\nappears that a person using reasonable diligence would not have known about the \"educational train trip\" until the\nTribune article was published the day before he submitted this Request for Review.\n\n\fMr. R. John Anderson\nMay 10, 2024\nPage 3\nDISCUSSION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan , 179 Ill. App. 3d\n161, 171 ( 1989).\n\nSection 2(a) of OMA (5 ILCS 120/2(a) (West 2022)) provides that \"[a] ll meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines a\nmeeting as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\n\nthe purpose of discussing public business[.]\nThe requirements of OMA are not automatically triggered when a majority of a\nquorum or a quorum of a public body attends a gathering. See University Professionals of\nIllinois v. Stukel, 344 Ill. App. 3d 856, 868 ( 2003) ( OMA is not \" triggered every time public\nofficials meet and converse\"). Rather, the Office of the Attorney General has stated that\n\nwhether a gathering falls within the definition of meeting as used in the Act, would dep end\nupon the peculiar facts in each situation.\" Ill. Att'y Gen. Op. No .S-726, issued March 22, 1974,\nat 126. \"[ T] he Act is designed to prohibit secret deliberation and action on business which\nproperly should be discussed in a public forum due to its potential impact on the public.\" People\nex rel. Difanis v. Barr , 83 Ill. 2d 191, 202 ( 1980). \" In theory, there is no absolute prohibition\n\nagainst the members of a public body attending an 'informational meeting' without triggering the\napplication of\" OMA, as long as the members do not make \"[ d] eliberational statements\" or\nengage in \"unrecorded discussions\" among themselves. Ill. Att'y Gen. Op. No. 95 -004, issued\nJuly 14, 1995, at 10 -11. In that opinion, the Attorney General concluded that the \" mere fact that\n\na majority of a quorum of the members of a public body attend and participate in a bona fide\npresentation on new legislative developments in an area of public concern\" did not make the\npresentation subject to OMA, but the extensive discussions of public business by members of\ntwo county boards during the presentation did trigger the requirements of OMA. (Emphasis in\noriginal.) Ill. Att' y Gen. Op. No. 95 -004, at 10 -11; see also Nabhani v. Coglianese, 552 F. Supp.\n\n657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for purposes of OMA when\nthere is \"no examining or weighing of reasons for or against a course of action, no exchange of\n\nfacts preliminary to a decision, [and] no attempt to reach accord on a specific matter of public\nbusiness.\").\n\n\fMr. R. John Anderson\nMay 10, 2024\nPage 4\nMetra' s Board is comprised of 11 members. A quorum of the Board is six, and a\n\nmajority of a quorum is four. Accordingly, deliberative discussions about public business among\nfour or more members of the Board are generally subject to the restrictions of O MA.\nIn its answer to this office, Metra asserted that \"[ o]n May 17, 2023, no meeting\nwas held, no deliberative discussions occurred, and no votes were taken on the train to Joliet or\non the shuttle vans from the train station to the Will County Office Buildi ng where the Metra\n\nBoard meeting was held.\" 5 Metra explained the nature of the trip as informational:\nThe purpose of the train trip to Will County via the Rock\nIsland Line was to show Metra Board members areas of the line\nthat are generally inaccessible from the vantage point of the rail\n\nand to provide a greater understanding of the system. Learning the\nsystem firsthand and in person is an invaluable and common\nlearning experience for Board members on other railroads. Trips\nlike these provide information that cannot be satisfactorily\nconveyed by mere maps and pictures.[ 6]\n\nMetra then described the measures it took to avoid violating OMA:\nMetra Board members and staff are well aware of, and\ntrained in, the OMA. Metra took a series of precautions prior to the\ntrip to prevent any such violations. For example, prior to the train\n\ntrip, staff prepared a PowerPoint presentation and script to be read\nto the Board members on the ride to Will County while the train\npassed, and sometimes stopped, at various sites along the way.\nThe script ad PowerPoint were reviewed by Metra' s Law\nDepartment. * * *\nBefore the train departed Chicago' s LaSalle\n\nStreet Station, the requirements and prohibitions of the OMA were\nreviewed with everyone on board. At least three members of the\nLaw Department were present with the Board members in the\nobservation car and monitored the trip for OMA compliance.\n\nSimilarly, members of Metra's Law Department were present in\nthe shuttles. There were no more than 3 Board members on any\none shuttle. Again, there were no business discussions,\ndeliberations, or votes taken on the train or shuttles.\n5Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( August 24, 2023), at [ 1].\n6Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [1 -2 ].\n\n\fMr. R. John Anderson\nMay 10, 2024\nPage 5\n\nAdditional precautions were taken with the seating\narrangements on the train car and shuttle. The car had three\nsections, a tiered section (single seats in two rows along each side\nof the car), a middle section, and a dining section. There were no\nmore than three Board members in any one area of the long train\ncar.[ 7]\n\nMetra went on to explain that eight of its 11 members participated in the train trip, and described\nhow those Board members, nine Metra staff members, and two members of the press were\ninterspersed throughout the train and two shuttles. Metra argued that \"[ i]t makes no sense to\nbelieve that of Metra wished to conduct a secret meeting in violation of the OMA that they\n\nwould invite the press to observe and report the violation.\" 8 Metra noted that the press reported\nno such violation, and contended that the Tribune article reflects the educational nature and value\nof the trip to both the Board and the public.\nIn reply,\n\nreferred this office to the presentation materials he obtained\n\npursuant to FOIA, claiming that they all suggest that the Board discussed public business during\nthe trip. This office's review of the materials found that they present information on the Rock\nIsland Corridor and various contemplated and planned projects and initiatives.\nWhenever a majority of a quorum of the members of a public body gather outside\nof the context of an open meeting, there is the potential for an OMA violation. The Board' s\n\nactivities as depicted in the Request for Review —that the Board gathered at a train station, took\na train ride that had the purpose of informing members about matters of public business, and then\ntook shuttle buses together — suggested circumstances ripe for an improper private meeting, as\nthe purpose of the trip plainly concerned public business ( rather than private affairs) and a\nquorum of the Board was present. Metra' s detailed explanation about the safeguards it put in\n\nplace to avoid an OMA violation by the Board, however, demonstrates that the Board did not\nhold an illegal meeting. The oversight by Metra's legal staff, the controlled nature of Metra\nstaff's presentations, the reinforcement of OMA's requirements on board before the trip departed,\nand the presence of the press all served to keep the Board in compliance with the statute . Most\n\nimportantly, Metra explained that on both the train and the shuttles, no more than three Board\nmembers were grouped together. Thus, Metra asserted that at no time during the trip was a\nmajority of a quorum of the Board in a position to deliberate about public business together.\nThis series of precautions taken by Metra appears to have allowed the educational trip to take\n7Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General ( August 24, 2023), at [ 2].\n8Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [2].\n\n\fMr. R. John Anderson\nMay 10, 2024\nPage 6\nplace and provide insight to Board members while refraining from conducting a non -public\n\nmeeting. Moreover, it is undisputed that the Board held a properly -noticed open meeting once it\narrived in Will County, rather than alighting from the trip without an ensuing meeting in a\nmanner amenable to private conversations . Because the information this office has received in\nthis matter does not indicate that a majority of a quorum of the Board deliberated about public\nbusiness on May 17, 2023, prior to the open meeting in Will County, this office concludes that\nthe Board did not hold a non -public meeting in violation of OMA on that date.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n77651 o 2a meeting proper reg auth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's transit discussion of public business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77651/","full_text":"May 10, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. R. John Anderson\n\nActing General Counsel\nMetra\n547 West Jackson Boulevard, 15th Floor\nChicago, Illinois 60661\nRJAnderson@metrarr. com\n\nRE: OMA Request for Review – 2023 PAC 77651\nDear\n\nand Mr. Anderson:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Metra Board of Directors (Board) did not violate OMA on May 17,\n2023.\nOn August 9,2023,\nsubmitted a Request for Review to the Public\nAccess Bureau alleging that the Board violated OMA on May 17, 2023, by holding a non -public\nmeeting while traveling from Chicago to Will County. Citing a Chicago Tribune news article\nabout the \"educational train trip,\"1\nalleged that the Board improperly held a meeting at a\ntrain station in Chicago, during the train ride, and during the shuttle bus ride to the Will County\n\nOffice Building without adhering to the requirements of OMA.\n\ndid not dispute that the\n\n1 Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $ 10,000., Chicago Tribune (August 8, 2023, 5: 00 a.m.),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board-members- on-a-train -ride-to-a-monthly -meetingit -cost-the-agency -more- than -10000/.\n\nBoard held a properly -noticed open meeting once it arrived at the Will County Office Building,\n\nbut alleged that the Board improperly discussed public business during the journey. He quoted\nthe following passage from the Tribune article:\nDuring the roughly 40 -mile trip, board members saw work\nat a crossing between Metra and freight rail tracks. They learned of\nideas for upgrades, including adding a third track along part of the\n\nroute and the potential repair and use of a section of old track that\ncrosses the Dan Ryan Expressway.\nBoard members passed the site of a planned train yard\nexpansion, and the site of planned work to unsnarl Metra and\n\nfreight train traffic that is also intended to create a connection\nbetween Metra's SouthWest Service and Rock Island lines. They\npassed the future site of the new Auburn Park station and saw\nconstruction at Metra's Blue Island -Vermont St. station.[2]\nalso noted that a Board member was quoted as saying that \"[ t]he trip allowed members\nto see firsthand how some of the projects can reduce delays between the freight and commuter\nrailroads and otherwise benefit Metra [.]\"3\nOn August 14, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Board together with a letter asking the Board to respond in writing to the\n\nallegation that it held an improper private meeting on May 17, 2023.4 On August 31, 2023,\ne-mailed this office copies of the PowerPoint presentation and handouts for the Board during\nthe trip, which he had obtained pursuant to the Freedom of Information Act (FOIA) (5 ILCS\n140/ 1 et seq. (West 2022)). On September 7, 2023, this office received Metra's written answer\nfrom Metra's Acting General Counsel, R. John Anderson. On September 12, 2023,\n\nsubmitted a reply.\n2 Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $10,000., Chicago Tribune (August 8, 2023, 5: 00 a. m.),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board-members- on-a-train -ride-to-a-monthly -meetingit -cost- the- agency -more- than -10000/.\n\n3 Sarah Freishtat, Metra took its board members on a train ride to a monthly meeting. It cost the\nagency more than $10,000., Chicago Tribune (August 8, 2023, 5: 00 a. m.),\nhttps:// www.chicagotribune. com/2023/ 08/08/metra -took -its-board- members- on-a-train -ride-to-a-monthly -meetingit -cost- the- agency -more- than -10000/.\n4 This office has jurisdiction in this matter under section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West\n2022)) because although\nsubmitted this Request for Review more than 60 days after the alleged violation, it\nappears that a person using reasonable diligence would not have known about the \"educational train trip\" until the\n\nDISCUSSION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\n\nSection 2(a) of OMA (5 ILCS 120/2(a) (West 2022)) provides that \"[a] ll meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines a\nmeeting as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held for\n\nthe purpose of discussing public business[.]\nThe requirements of OMA are not automatically triggered when a majority of a\nquorum or a quorum of a public body attends a gathering. See University Professionals of\nIllinois v. Stukel, 344 Ill. App. 3d 856, 868 (2003) (OMA is not \" triggered every time public\nofficials meet and converse\"). Rather, the Office of the Attorney General has stated that\n\nwhether a gathering falls within the definition of meeting as used in the Act, would dep end\nupon the peculiar facts in each situation.\" Ill. Att'y Gen. Op. No.S-726, issued March 22, 1974,\nat 126. \"[ T] he Act is designed to prohibit secret deliberation and action on business which\nproperly should be discussed in a public forum due to its potential impact on the public.\" People\nex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). \" In theory, there is no absolute prohibition\n\nagainst the members of a public body attending an 'informational meeting' without triggering the\napplication of\" OMA, as long as the members do not make \"[ d] eliberational statements\" or\nengage in \"unrecorded discussions\" among themselves. Ill. Att'y Gen. Op. No. 95 -004, issued\nJuly 14, 1995, at 10 -11. In that opinion, the Attorney General concluded that the \" mere fact that\n\na majority of a quorum of the members of a public body attend and participate in a bona fide\npresentation on new legislative developments in an area of public concern\" did not make the\npresentation subject to OMA, but the extensive discussions of public business by members of\ntwo county boards during the presentation did trigger the requirements of OMA. (Emphasis in\noriginal.) Ill. Att' y Gen. Op. No. 95 -004, at 10 -11; see also Nabhani v. Coglianese, 552 F. Supp.\n\n657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for purposes of OMA when\nthere is \"no examining or weighing of reasons for or against a course of action, no exchange of\n\nfacts preliminary to a decision, [and] no attempt to reach accord on a specific matter of public\n\nMetra's Board is comprised of 11 members. A quorum of the Board is six, and a\n\nmajority of a quorum is four. Accordingly, deliberative discussions about public business among\nfour or more members of the Board are generally subject to the restrictions of O MA.\nIn its answer to this office, Metra asserted that \"[ o]n May 17, 2023, no meeting\nwas held, no deliberative discussions occurred, and no votes were taken on the train to Joliet or\non the shuttle vans from the train station to the Will County Office Buildi ng where the Metra\n\nBoard meeting was held.\" 5 Metra explained the nature of the trip as informational:\nThe purpose of the train trip to Will County via the Rock\nIsland Line was to show Metra Board members areas of the line\nthat are generally inaccessible from the vantage point of the rail\n\nand to provide a greater understanding of the system. Learning the\nsystem firsthand and in person is an invaluable and common\nlearning experience for Board members on other railroads. Trips\nlike these provide information that cannot be satisfactorily\nconveyed by mere maps and pictures.[ 6]\n\nMetra then described the measures it took to avoid violating OMA:\nMetra Board members and staff are well aware of, and\ntrained in, the OMA. Metra took a series of precautions prior to the\ntrip to prevent any such violations. For example, prior to the train\n\ntrip, staff prepared a PowerPoint presentation and script to be read\nto the Board members on the ride to Will County while the train\npassed, and sometimes stopped, at various sites along the way.\nThe script ad PowerPoint were reviewed by Metra's Law\nDepartment. * * *\nBefore the train departed Chicago's LaSalle\n\nStreet Station, the requirements and prohibitions of the OMA were\nreviewed with everyone on board. At least three members of the\nLaw Department were present with the Board members in the\nobservation car and monitored the trip for OMA compliance.\n\nSimilarly, members of Metra's Law Department were present in\nthe shuttles. There were no more than 3 Board members on any\none shuttle. Again, there were no business discussions,\ndeliberations, or votes taken on the train or shuttles.\n5 Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [ 1].\n6 Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [1 -2 ].\n\nAdditional precautions were taken with the seating\narrangements on the train car and shuttle. The car had three\nsections, a tiered section (single seats in two rows along each side\nof the car), a middle section, and a dining section. There were no\nmore than three Board members in any one area of the long train\ncar.[ 7]\n\nMetra went on to explain that eight of its 11 members participated in the train trip, and described\nhow those Board members, nine Metra staff members, and two members of the press were\ninterspersed throughout the train and two shuttles. Metra argued that \"[ i]t makes no sense to\nbelieve that of Metra wished to conduct a secret meeting in violation of the OMA that they\n\nwould invite the press to observe and report the violation.\" 8 Metra noted that the press reported\nno such violation, and contended that the Tribune article reflects the educational nature and value\nof the trip to both the Board and the public.\nIn reply,\n\nreferred this office to the presentation materials he obtained\n\npursuant to FOIA, claiming that they all suggest that the Board discussed public business during\nthe trip. This office's review of the materials found that they present information on the Rock\nIsland Corridor and various contemplated and planned projects and initiatives.\nWhenever a majority of a quorum of the members of a public body gather outside\nof the context of an open meeting, there is the potential for an OMA violation. The Board's\n\nactivities as depicted in the Request for Review —that the Board gathered at a train station, took\na train ride that had the purpose of informing members about matters of public business, and then\ntook shuttle buses together — suggested circumstances ripe for an improper private meeting, as\nthe purpose of the trip plainly concerned public business (rather than private affairs) and a\nquorum of the Board was present. Metra's detailed explanation about the safeguards it put in\n\nplace to avoid an OMA violation by the Board, however, demonstrates that the Board did not\nhold an illegal meeting. The oversight by Metra's legal staff, the controlled nature of Metra\nstaff's presentations, the reinforcement of OMA's requirements on board before the trip departed,\nand the presence of the press all served to keep the Board in compliance with the statute. Most\n\nimportantly, Metra explained that on both the train and the shuttles, no more than three Board\nmembers were grouped together. Thus, Metra asserted that at no time during the trip was a\nmajority of a quorum of the Board in a position to deliberate about public business together.\nThis series of precautions taken by Metra appears to have allowed the educational trip to take\n7 Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [ 2].\n8 Letter from R. John Anderson, Acting General Counsel, Metra, to Grace Angelos, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (August 24, 2023), at [2].\n\nplace and provide insight to Board members while refraining from conducting a non -public\n\nmeeting. Moreover, it is undisputed that the Board held a properly -noticed open meeting once it\narrived in Will County, rather than alighting from the trip without an ensuing meeting in a\nmanner amenable to private conversations. Because the information this office has received in\nthis matter does not indicate that a majority of a quorum of the Board deliberated about public\nbusiness on May 17, 2023, prior to the open meeting in Will County, this office concludes that\nthe Board did not hold a non -public meeting in violation of OMA on that date.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n77651 o 2a meeting proper reg auth"}
{"id":1433,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-08-05","case_number":null,"request_numbers":["77728"],"title":"Thornton Township Board violated OMA by restricting in-person access and comments","filename":"77728, issued August 5, 2024.pdf","rel_path":null,"word_count":3333,"summary":"The PAC determined that Thornton Township violated the Open Meetings Act by restricting public access to an August 15, 2023, meeting and improperly preventing a resident from providing in-person public comment.","plain_summary":"A resident complained that Thornton Township officials blocked her from entering the meeting room and forced her to watch from an overflow room without sound. The resident also stated she was denied the right to speak during the public comment period. The Attorney General's office found that the Township violated the law by limiting public access and failing to allow in-person public comments.","holding":"The Thornton Township Board of Trustees violated the Open Meetings Act by failing to provide sufficient public access to its meeting and improperly restricting a member of the public from addressing the Board in person.","legal_question":"Whether a public body violates the Open Meetings Act by restricting physical access to an open meeting and requiring public comments to be submitted in writing rather than in person.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Thornton Township Board of Trustees","requesting_party":"Anonymous resident","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Township restricted physical access to a public meeting and prohibited in-person public comment.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/77728, issued August 5, 2024.pdf","sha256":"c577e35dba83d1ab8b99ac9d82bc12c5dba2bcff22df7472f49ab2dddc8f90b6","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meeting","meeting access","township board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"August 5, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Tiffany Nelson- Jaworski\nSenior Counsel\nDel Galdo Law Group, LLC\n111 North Wabash Avenue, Suite 908\nChicago, Illinois 60602\njaworski@dlglawgroup. com\nRE: OMA Request for Review – 2023 PAC 77728\nDear\n\nand Ms. Nelson- Jaworski:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Thornton Township ( Township) Board of Trustees ( Board) violated\nOMA by failing to provide the public with sufficient access to its August 15, 2023, meeting and\nby improperly restricting\nfrom addressing the Board at the meeting.\nIn her Request for Review, submitted August 15, 2023,\nalleged\nthat when she arrived at the Township building ten minutes before the start of the Board' s\nmeeting that evening, a security guard told her that she was not wanted in the building.\nalleged that she nonetheless entered the building, but that she and other local\nresidents were not allowed in the meeting room despite ample space for them. According to\nthe Township' s Senior Advisor, Keith Freeman, intervened on behalf of the Board by\nrequiring her and others to go to an overflow room that did not have sound.\nalso\nalleged she signed up for public comment, but that Mr. Freeman told her she was not allowed to\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 2\ncome to the Board room to give in-person public comment; rather, she could only submit her\npublic comment to the clerk via e-mail.\nOn August 24, 2023, this office sent a copy of\nRequest for\nReview to the Board and asked it to provide copies of the August 15, 2023, meeting agenda,\nminutes ( in draft form, if necessary), any recording( s) of open session from the meeting, and any\npublic comment rules that the Board had established and recorded. This office also asked the\nBoard to provide a written response to the allegations in\nRequest for Review,\naddressing\nclaim that she and others were improperly excluded from the Board\nroom and that the meeting was inaudible from the overflow room. This office requested\nevidence of the capacity of the meeting room and a description of any measures the Board took\nto make the August 15, 2023, meeting convenient and open to the public. This office asked that\nthe written response also address\nallegation that the Board improperly\nprohibited her from providing public comment at the August 15, 2023, Board meeting.\nThe Board did not respond to this office' s letter. Therefore, this office sent a\nsecond letter to the attention of the Township Supervisor, Tiffany Henyard, on September 18,\n2023, seeking the same information. After additional follow- up with the Board' s attorney, this\noffice received the Board' s initial written response in this matter on October 3, 2023, as well as\ncopies of the August 15, 2023, meeting agenda and minutes, the Board' s established and\nrecorded public comment rules, and various police reports. The written response asserted that\nwas not allowed in the Township Board room because seating was filled to\ncapacity, and that Township officials would have felt unsafe with her in the Board room due to\nher past conduct and \" perceived threats[.]\" 1 That same day, this office forwarded a copy of the\nBoard' s initial written response to\nshe submitted two replies on October 7, 2023.\nShe attached a recording she made at the August 15, 2023, meeting, which appears to depict Mr.\nFreeman agreeing that\nsigned in for public comment but telling her that she must\nsend her comment to the clerk.\nalso provided a link to a Lansing Journal article\nabout the Board meeting. 2 That article included a picture of the Board room during the meeting,\nwhich depicted empty space behind two rows of five chairs each. The article stated that there\nwere ten chairs in the room for members of the public, half of which were occupied by\n\n1Letter from Thornton Township to Katie Goldsmith, Public Access Bureau ( October 3, 2023), at\n1].\n2Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL ( Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/ 18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 3\ntownship- involved individuals.\" 3 On October 19, 2023,\nsent another written\nreply, which included a copy of a Facebook post she had made that was critical of Ms. Henyard\nand Mr. Freeman;\nargued that the post is not threatening in nature but instead\nreflects legitimate political protest.\nMeanwhile, on October 10, 2023, the AAG again asked the Board' s attorney for a\ncopy of the recording of the Board meeting and posed additional questions concerning the\ncapacity of the meeting room. On October 17, 2023, the Board' s attorney provided a copy of the\nrecording of the Board meeting. On November 28, 2023, the Board' s attorney provided a\nsupplemental written response addressing the AAG's questions from October 10, 2023. On\nNovember 29, 2023, this office forwarded a copy of the Board' s supplemental written response\nto\nshe substantively replied on January 23, 2024, and attached a letter written by\nanother individual who attended the August 15, 2023, Board meeting. That individual' s letter\nreferenced attachments, but no attachments were included. On February 9, 2024,\nasked the AAG to proceed without the attachments.\nDETERMINATION\nConvenient and Open Meeting\nSection 1 of OMA (5 ILCS 120/ 1 et seq. ( West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\" Section 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" ( Emphasis added.) Section 2.01 requires not \"' absolute\naccessibility' but 'reasonable accessibility.'\" Gerwin v. Livingston County Board, 345 Ill. App.\n3d 352, 362 ( 2003).\nIn its initial written response to this office, the Board denied that it violated OMA\non August 15, 2023. The Board claimed that \"[ c] ontrary to\nallegations, the\nBoard room and the chairs therein were filled and there was no seating available for her.\" 4 The\nBoard stated that\nand others were offered the opportunity to listen to the meeting\nin the lower level of the building. The Board also stated: \" As far as the Township knows, there\n3Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL ( Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n4Letter from Thornton Township to Katie Goldsmith, Public Access Bureau ( October 3, 2023), at\n1].\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 4\nwere no technical difficulties with the broadcast of the meeting. However, the microphones were\nnot working in the overflow room so\nwas invited to write down her comment to\nbe read into the record but she refused to do so.\" 5 Addressing\nattendance in\nparticular, the Board claimed:\nD]ue to the past conduct and perceived threats to the Supervisor\nand other Township staff by\nthe Supervisor and\nothers did not feel safe with\nin the Board room.\nSupervisor Henyard has filed certain police reports and complaints\nagainst\nrelated to perceived threats and alleged\n6]\nstalking of Supervisor Henyard by\nIn reply,\nreferenced the Lansing Journal article, stating: \" It has a\npicture of the 10 chairs in the board room. And that two more rows could' ve fit. They took those\nchairs out purposely. There used to be 4 rows.\" 7 As to audio of the meeting in the overflow\nroom,\ncontended:\nDespite what The Township is claiming, they were well\naware that the sound wasn' t working. They sent employees down\ntrying to fix it. As you can see in the newspaper article, there\nwhere other residents down there and I will get witness statements\nsaying that there was no sound and the township knew because\nwhen Keith freeman, the senior advisor, came down to tell me I\ncouldn' t come up to give my public comments, the residents asked\nhim what was wrong with the sound and he said they're working\non it. [8]\nThe Lansing Journal article included an unattributed quotation that the audio of the meeting\ncame on for a hot minute and then cut off again[.]\" 9\nalso disputed that she\nposed any kind of security threat to Ms. Henyard or the Township more broadly. She explained\n5Letter from Thornton Township to Katie Goldsmith, Public Access Bureau ( October 3, 2023), at\n1];\n6Letter from Angela L. Hill to whom this may concern ( January 11, 2024), at [ 1].\n7E- mail from\n\nto [Katie] Goldsmith ( October 7, 2023).\n\n8E- mail from\n\nto [ Katie] Goldsmith ( October 7, 2023).\n\n9Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL ( Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/ 18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 5\nthat after 18 years of employment with the Township, Ms. Henyard had fired her, and then had\nsought to restrict her from the Township events she had attended for decades.\ndescribed her history of interactions with Ms. Henyard in detail and argued that her criticism of\nMs. Henyard as an elected official and her attendance at Township events cannot be considered\nharassing or threatening behavior.\nThe Board' s November 28, 2023, supplemental written response, signed by Mr.\nFreeman, stated:\nAt some point before the August 15, 2023, Thornton\nTownship Board meeting, the board room had been used for\nanother event and some of the seating was removed. For some\nunknown reason, the seating had not been replaced. The security\nguard who was posted outside the door incorrectly informed\nattendees that there was no seating available and instructed them to\nwatch the meeting in the overflow room on the first floor of the\nbuilding.[ 10]\nMr. Freeman also stated: \" I did not observe any technological issues. I likewise have not been\ninformed of any issues related to the streaming of the meeting, aside from\ncomplaint.\" 11\nOn January 23, 2024,\nsubmitted a reply to the Board' s\nsupplemental written response.\nreply incorporated a written statement by Ms.\nAngela L. Hill, a resident of the Village of Dolton ( where Ms. Henyard is Mayor and where Mr.\nFreeman is Village Administrator), who stated that she also attended the August 15, 2023, Board\nmeeting. Ms. Hill corroborated\ndescription of how the meeting transpired,\nexplaining that \"[ a] fter Keith Freeman came out he tried to direct us downstairs we refused\ntelling [ him] we wanted access to sign in to speak and would not be able to [ hear] whose names\nwere] called. He was made aware of the fact no one could hear. No sound.\" 12\nThe Board unequivocally violated section 2.01 of OMA by failing to make its\nAugust 15, 2023, meeting convenient and open to the public. While the Board initially claimed\nthe meeting room was at capacity, the Board acknowledged in its supplemental response that the\n10Letter from Thornton Township to Katie Goldsmith, Public Access Bureau ( November 28,\n2023), at [ 1].\n11Letter from Thornton Township to Katie Goldsmith, Public Access Bureau ( November 28,\n2023), at [ 1].\n12Letter from Angela L. Hill to whom this may concern, Office of the Illinois Attorney General\nJanuary 11, 2024), at [ 1].\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 6\nroom was not at capacity, blaming the security guard. The Board' s use of an overflow room on\nAugust 15, 2023, did not ameliorate the Board' s improper denial of access to the meeting room;\nit exacerbated the violation, as there was no valid reason to use an overflow room and the\navailable evidence reflects that the meeting was not sufficiently audible in that location. It may\nbe appropriate to use an overflow room to provide the public with contemporaneous access to at\nleast the audio of a meeting when the main meeting room is at full capacity and an alternative\nroom with great capacity is unavailable, but a public body may not otherwise divert attendees to\nan overflow room to prevent them from being physically present. This office cautions the Board\nto ensure that there is adequate seating in the Board room to accommodate prospective attendees\nat every future Board meeting, and to also allow members of the public to stand in the meeting\nroom, subject to the room' s fire code occupancy limit. Additionally, on the rare occasions that an\noverflow room may be necessary to provide reasonable access to a meeting, the Board must take\nmeasures to ensure its meetings are sufficiently audible in that space.\nAs to\nattendance in particular, the Public Access Bureau has\ndetermined that a public body did not violate OMA when a member of the public was prevented\nfrom attending a meeting because of a court order, 13 and that a public body did not violate OMA\nby ejecting a member of the public from the middle of a meeting for disrupting the meeting. 14\nThis office has reviewed the police reports that the Board provided for our confidential review.\nNotably, none of the police reports indicate that\nis barred from attending Board\nmeetings by a court order. The materials this office has received in this matter reflect that\nis sharply critical of Ms. Henyard and her administration, but they do not support the\nallegations that she poses a bona fide security or safety concern, or that the police department\nthat generated the reports treated her as such. The Board did not demonstrate that the mere\npresence of\nin the meeting room would have endangered anyone, disrupted the\nmeeting, or otherwise jeopardized the Board' s ability to proceed in an orderly manner. The\nBoard therefore violated OMA by prohibiting\nfrom entering the meeting room.\nThis office cautions the Board to refrain from excluding members of the public from attending\nits open meetings absent a court order barring attendance, the occurrence of actual disruptions\nthat impede the ability to continue conducting public business, or demonstrable evidence of a\nlikelihood of disruptive conduct or a threat to public safety.\nPublic Comment\n\n13See, for instance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 37043, issued September 1, 2015, at 1\nStalking No Contact Order prevented member of public from attending meeting, thus public body did not violate\nher right to public comment).\n14See, for instance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35101, issued July 13, 2015, at 2 (unable to\nconclude public body violated OMA by removing member of public from meeting when she refused to stop\nspeaking after her public comment time expired and her speech became increasingly uncivil).\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 7\nSection 2.06(g) of OMA 15 provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Section 2.06(g) \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14-012, issued September 30, 2014, at 5. Under the plain language of section 2.06(g), a\npublic body must establish and record rules governing public comment, which must tend to\naccommodate public comment rather than impose unreasonable limits, and may restrict public\ncomment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued\nSeptember 13, 2023, at 3-4. A public body may not silence a public comment based on the\nchairperson' s disagreement with the speaker' s viewpoint. See, for instance, I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 924 ( N.D. Ill. 2009).\nThe Board' s ordinance regarding public comment provides, in relevant part:\n1) Prior to meetings, the Township Board will make available a\nsign- in sheet, where prospective speakers must print their\nnames, and may, if they chose to, disclose their contact\ninformation and the subject matter upon which they wish to\naddress the board. A commenter will still be allowed to\ncomment, even if the commenter opts to not disclose their\ncontact information or the topic they wish to address;\n2) Speakers will be recognized for comment during the public\ncomment period only if they have completed the required\nportions of the sign- in sheet ( their name), and will be called in\nthe order in which they have signed in;\n3) When recognized to comment, each speaker must begin by\nstating his or her name, and shall be permitted three ( 3)\nminutes to address the board. This period shall not include the\nboard members' responses, if any, to the speaker[.][ 16]\nThe Board' s answer to this office indicated that it believed it met the public\ncomment requirement by giving\nthe opportunity to put her public comment in\nwriting. In reply,\nstated: \" I was not asked to write my comment for the clerk to\nread into record; I was told to email the clerk and someone would get back to me with answers to\nmy questions because I am not allowed upstairs to speak.\" 17\nfurther argued that\n\n155 ILCS 120/ 2.06(g) (West 2022).\n16Thornton Township Ordinance No. 22-004, §§ 2(1)-( 3) ( approved November 9, 2022).\n17E- mail from\n\nto [Katie] Goldsmith ( October 7, 2023).\n\n\fMs. Tiffany Nelson- Jaworski\nAugust 5, 2024\nPage 8\nt]here is no reason I can not go into a board meeting and address the board or [Township\nSupervisor Henyard].\" 18\nThe Board clearly violated OMA by prohibiting\nfrom addressing\nits members in person during its August 15, 2023, meeting. The Board' s established and\nrecorded public comment rules do not state that the Board may require public comments to be\nsubmitted by e-mail rather than voiced to the Board in person. 19 Even if the Board had such an\nestablished and recorded rule, it would unreasonably restrict the right to public comment and\nthus be invalid. Public bodies have an express statutory duty to provide members of the public\nwith the opportunity to verbally address their members at in-person open meetings. Therefore,\nthis office cautions the Board to refrain from requiring members of the public to submit public\ncomments in writing and ensure that members of the public are permitted to vocally address its\nmembers in person at each open meeting, and to otherwise fully uphold the right to address\npublic officials.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this file. If you have\nquestions, you may contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n77728 o 201 improper 206g pub comment improper mun\ncc:\n\nVia electronic mail\nThe Honorable Tiffany A. Henyard\nSupervisor\nThornton Township\n333 East 162nd Street\nSouth Holland, Illinois 60473\nc/o kfreeman@thorntontwp. com\n18E- mail from\n\nto [Katie] Goldsmith ( October 7, 2023).\n\n19This office notes that the analysis in this matter concerns only in-person meetings, not the remote\nmeetings that were available during the COVID- 19 pandemic under section 7(e) of OMA ( 5 ILCS 120/ 7(e) ( West\n2022)).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Restricted physical access and in-person comment at a township board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77728/","full_text":"August 5, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Tiffany Nelson- Jaworski\nSenior Counsel\nDel Galdo Law Group, LLC\n111 North Wabash Avenue, Suite 908\nChicago, Illinois 60602\njaworski@dlglawgroup. com\nRE: OMA Request for Review – 2023 PAC 77728\nDear\n\nand Ms. Nelson- Jaworski:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Thornton Township (Township) Board of Trustees (Board) violated\nOMA by failing to provide the public with sufficient access to its August 15, 2023, meeting and\nby improperly restricting\nfrom addressing the Board at the meeting.\nIn her Request for Review, submitted August 15, 2023,\nalleged\nthat when she arrived at the Township building ten minutes before the start of the Board's\nmeeting that evening, a security guard told her that she was not wanted in the building.\nalleged that she nonetheless entered the building, but that she and other local\nresidents were not allowed in the meeting room despite ample space for them. According to\nthe Township's Senior Advisor, Keith Freeman, intervened on behalf of the Board by\nrequiring her and others to go to an overflow room that did not have sound.\nalso\nalleged she signed up for public comment, but that Mr. Freeman told her she was not allowed to\n\ncome to the Board room to give in-person public comment; rather, she could only submit her\npublic comment to the clerk via e-mail.\nOn August 24, 2023, this office sent a copy of\nRequest for\nReview to the Board and asked it to provide copies of the August 15, 2023, meeting agenda,\nminutes (in draft form, if necessary), any recording(s) of open session from the meeting, and any\npublic comment rules that the Board had established and recorded. This office also asked the\nBoard to provide a written response to the allegations in\nRequest for Review,\naddressing\nclaim that she and others were improperly excluded from the Board\nroom and that the meeting was inaudible from the overflow room. This office requested\nevidence of the capacity of the meeting room and a description of any measures the Board took\nto make the August 15, 2023, meeting convenient and open to the public. This office asked that\nthe written response also address\nallegation that the Board improperly\nprohibited her from providing public comment at the August 15, 2023, Board meeting.\nThe Board did not respond to this office's letter. Therefore, this office sent a\nsecond letter to the attention of the Township Supervisor, Tiffany Henyard, on September 18,\n2023, seeking the same information. After additional follow- up with the Board's attorney, this\noffice received the Board's initial written response in this matter on October 3, 2023, as well as\ncopies of the August 15, 2023, meeting agenda and minutes, the Board's established and\nrecorded public comment rules, and various police reports. The written response asserted that\nwas not allowed in the Township Board room because seating was filled to\ncapacity, and that Township officials would have felt unsafe with her in the Board room due to\nher past conduct and \" perceived threats[.]\" 1 That same day, this office forwarded a copy of the\nBoard's initial written response to\nshe submitted two replies on October 7, 2023.\nShe attached a recording she made at the August 15, 2023, meeting, which appears to depict Mr.\nFreeman agreeing that\nsigned in for public comment but telling her that she must\nsend her comment to the clerk.\nalso provided a link to a Lansing Journal article\nabout the Board meeting. 2 That article included a picture of the Board room during the meeting,\nwhich depicted empty space behind two rows of five chairs each. The article stated that there\nwere ten chairs in the room for members of the public, half of which were occupied by\n\n1 Letter from Thornton Township to Katie Goldsmith, Public Access Bureau (October 3, 2023), at\n1].\n2 Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL (Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/ 18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n\ntownship- involved individuals.\" 3 On October 19, 2023,\nsent another written\nreply, which included a copy of a Facebook post she had made that was critical of Ms. Henyard\nand Mr. Freeman;\nargued that the post is not threatening in nature but instead\nreflects legitimate political protest.\nMeanwhile, on October 10, 2023, the AAG again asked the Board's attorney for a\ncopy of the recording of the Board meeting and posed additional questions concerning the\ncapacity of the meeting room. On October 17, 2023, the Board's attorney provided a copy of the\nrecording of the Board meeting. On November 28, 2023, the Board's attorney provided a\nsupplemental written response addressing the AAG's questions from October 10, 2023. On\nNovember 29, 2023, this office forwarded a copy of the Board's supplemental written response\nto\nshe substantively replied on January 23, 2024, and attached a letter written by\nanother individual who attended the August 15, 2023, Board meeting. That individual's letter\nreferenced attachments, but no attachments were included. On February 9, 2024,\nasked the AAG to proceed without the attachments.\nDETERMINATION\nConvenient and Open Meeting\nSection 1 of OMA (5 ILCS 120/ 1 et seq. (West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\" Section 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" (Emphasis added.) Section 2.01 requires not \"' absolute\naccessibility' but 'reasonable accessibility.'\" Gerwin v. Livingston County Board, 345 Ill. App.\n3d 352, 362 (2003).\nIn its initial written response to this office, the Board denied that it violated OMA\non August 15, 2023. The Board claimed that \"[ c] ontrary to\nallegations, the\nBoard room and the chairs therein were filled and there was no seating available for her.\" 4 The\nBoard stated that\nand others were offered the opportunity to listen to the meeting\nin the lower level of the building. The Board also stated: \" As far as the Township knows, there\n3 Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL (Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n4 Letter from Thornton Township to Katie Goldsmith, Public Access Bureau (October 3, 2023), at\n\nwere no technical difficulties with the broadcast of the meeting. However, the microphones were\nnot working in the overflow room so\nwas invited to write down her comment to\nbe read into the record but she refused to do so.\" 5 Addressing\nattendance in\nparticular, the Board claimed:\nD]ue to the past conduct and perceived threats to the Supervisor\nand other Township staff by\nthe Supervisor and\nothers did not feel safe with\nin the Board room.\nSupervisor Henyard has filed certain police reports and complaints\nagainst\nrelated to perceived threats and alleged\n6]\nstalking of Supervisor Henyard by\nIn reply,\nreferenced the Lansing Journal article, stating: \" It has a\npicture of the 10 chairs in the board room. And that two more rows could' ve fit. They took those\nchairs out purposely. There used to be 4 rows.\" 7 As to audio of the meeting in the overflow\nroom,\ncontended:\nDespite what The Township is claiming, they were well\naware that the sound wasn' t working. They sent employees down\ntrying to fix it. As you can see in the newspaper article, there\nwhere other residents down there and I will get witness statements\nsaying that there was no sound and the township knew because\nwhen Keith freeman, the senior advisor, came down to tell me I\ncouldn' t come up to give my public comments, the residents asked\nhim what was wrong with the sound and he said they're working\non it. [8]\nThe Lansing Journal article included an unattributed quotation that the audio of the meeting\ncame on for a hot minute and then cut off again[.]\" 9\nalso disputed that she\nposed any kind of security threat to Ms. Henyard or the Township more broadly. She explained\n5 Letter from Thornton Township to Katie Goldsmith, Public Access Bureau (October 3, 2023), at\n1];\n6 Letter from Angela L. Hill to whom this may concern (January 11, 2024), at [ 1].\n7E- mail from\n\nto [Katie] Goldsmith (October 7, 2023).\n\n8E- mail from\n\nto [ Katie] Goldsmith (October 7, 2023).\n\n9 Josh Bootsma, Security denies public entrance at Thornton Township meeting; Freeman\nrestricts public comment; Board approves Walk of Hope spending, THE LANSING JOURNAL (Aug. 18, 2023),\nhttps:// thelansingjournal. com/ 2023/ 08/ 18/thornton- township- passes- walk- of-hope- expenses- as-some- residentsprevented- from- accessing- public- meeting/.\n\nthat after 18 years of employment with the Township, Ms. Henyard had fired her, and then had\nsought to restrict her from the Township events she had attended for decades.\ndescribed her history of interactions with Ms. Henyard in detail and argued that her criticism of\nMs. Henyard as an elected official and her attendance at Township events cannot be considered\nharassing or threatening behavior.\nThe Board's November 28, 2023, supplemental written response, signed by Mr.\nFreeman, stated:\nAt some point before the August 15, 2023, Thornton\nTownship Board meeting, the board room had been used for\nanother event and some of the seating was removed. For some\nunknown reason, the seating had not been replaced. The security\nguard who was posted outside the door incorrectly informed\nattendees that there was no seating available and instructed them to\nwatch the meeting in the overflow room on the first floor of the\nbuilding.[ 10]\nMr. Freeman also stated: \" I did not observe any technological issues. I likewise have not been\ninformed of any issues related to the streaming of the meeting, aside from\ncomplaint.\" 11\nOn January 23, 2024,\nsubmitted a reply to the Board's\nsupplemental written response.\nreply incorporated a written statement by Ms.\nAngela L. Hill, a resident of the Village of Dolton (where Ms. Henyard is Mayor and where Mr.\nFreeman is Village Administrator), who stated that she also attended the August 15, 2023, Board\nmeeting. Ms. Hill corroborated\ndescription of how the meeting transpired,\nexplaining that \"[ a] fter Keith Freeman came out he tried to direct us downstairs we refused\ntelling [ him] we wanted access to sign in to speak and would not be able to [ hear] whose names\nwere] called. He was made aware of the fact no one could hear. No sound.\" 12\nThe Board unequivocally violated section 2.01 of OMA by failing to make its\nAugust 15, 2023, meeting convenient and open to the public. While the Board initially claimed\nthe meeting room was at capacity, the Board acknowledged in its supplemental response that the\n10 Letter from Thornton Township to Katie Goldsmith, Public Access Bureau (November 28,\n2023), at [ 1].\n11 Letter from Thornton Township to Katie Goldsmith, Public Access Bureau (November 28,\n2023), at [ 1].\n12 Letter from Angela L. Hill to whom this may concern, Office of the Illinois Attorney General\n\nroom was not at capacity, blaming the security guard. The Board's use of an overflow room on\nAugust 15, 2023, did not ameliorate the Board's improper denial of access to the meeting room;\nit exacerbated the violation, as there was no valid reason to use an overflow room and the\navailable evidence reflects that the meeting was not sufficiently audible in that location. It may\nbe appropriate to use an overflow room to provide the public with contemporaneous access to at\nleast the audio of a meeting when the main meeting room is at full capacity and an alternative\nroom with great capacity is unavailable, but a public body may not otherwise divert attendees to\nan overflow room to prevent them from being physically present. This office cautions the Board\nto ensure that there is adequate seating in the Board room to accommodate prospective attendees\nat every future Board meeting, and to also allow members of the public to stand in the meeting\nroom, subject to the room's fire code occupancy limit. Additionally, on the rare occasions that an\noverflow room may be necessary to provide reasonable access to a meeting, the Board must take\nmeasures to ensure its meetings are sufficiently audible in that space.\nAs to\nattendance in particular, the Public Access Bureau has\ndetermined that a public body did not violate OMA when a member of the public was prevented\nfrom attending a meeting because of a court order, 13 and that a public body did not violate OMA\nby ejecting a member of the public from the middle of a meeting for disrupting the meeting. 14\nThis office has reviewed the police reports that the Board provided for our confidential review.\nNotably, none of the police reports indicate that\nis barred from attending Board\nmeetings by a court order. The materials this office has received in this matter reflect that\nis sharply critical of Ms. Henyard and her administration, but they do not support the\nallegations that she poses a bona fide security or safety concern, or that the police department\nthat generated the reports treated her as such. The Board did not demonstrate that the mere\npresence of\nin the meeting room would have endangered anyone, disrupted the\nmeeting, or otherwise jeopardized the Board's ability to proceed in an orderly manner. The\nBoard therefore violated OMA by prohibiting\nfrom entering the meeting room.\nThis office cautions the Board to refrain from excluding members of the public from attending\nits open meetings absent a court order barring attendance, the occurrence of actual disruptions\nthat impede the ability to continue conducting public business, or demonstrable evidence of a\nlikelihood of disruptive conduct or a threat to public safety.\nPublic Comment\n\n13 See, for instance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 37043, issued September 1, 2015, at 1\nStalking No Contact Order prevented member of public from attending meeting, thus public body did not violate\nher right to public comment).\n14 See, for instance, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35101, issued July 13, 2015, at 2 (unable to\nconclude public body violated OMA by removing member of public from meeting when she refused to stop\nspeaking after her public comment time expired and her speech became increasingly uncivil).\n\nSection 2.06(g) of OMA 15 provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" Section 2.06(g) \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14-012, issued September 30, 2014, at 5. Under the plain language of section 2.06(g), a\npublic body must establish and record rules governing public comment, which must tend to\naccommodate public comment rather than impose unreasonable limits, and may restrict public\ncomment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued\nSeptember 13, 2023, at 3-4. A public body may not silence a public comment based on the\nchairperson's disagreement with the speaker's viewpoint. See, for instance, I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 924 (N.D. Ill. 2009).\nThe Board's ordinance regarding public comment provides, in relevant part:\n1) Prior to meetings, the Township Board will make available a\nsign- in sheet, where prospective speakers must print their\nnames, and may, if they chose to, disclose their contact\ninformation and the subject matter upon which they wish to\naddress the board. A commenter will still be allowed to\ncomment, even if the commenter opts to not disclose their\ncontact information or the topic they wish to address;\n2) Speakers will be recognized for comment during the public\ncomment period only if they have completed the required\nportions of the sign- in sheet (their name), and will be called in\nthe order in which they have signed in;\n3) When recognized to comment, each speaker must begin by\nstating his or her name, and shall be permitted three (3)\nminutes to address the board. This period shall not include the\nboard members' responses, if any, to the speaker[.][ 16]\nThe Board's answer to this office indicated that it believed it met the public\ncomment requirement by giving\nthe opportunity to put her public comment in\nwriting. In reply,\nstated: \" I was not asked to write my comment for the clerk to\nread into record; I was told to email the clerk and someone would get back to me with answers to\nmy questions because I am not allowed upstairs to speak.\" 17\n\nt]here is no reason I can not go into a board meeting and address the board or [Township\nSupervisor Henyard].\" 18\nThe Board clearly violated OMA by prohibiting\nfrom addressing\nits members in person during its August 15, 2023, meeting. The Board's established and\nrecorded public comment rules do not state that the Board may require public comments to be\nsubmitted by e-mail rather than voiced to the Board in person. 19 Even if the Board had such an\nestablished and recorded rule, it would unreasonably restrict the right to public comment and\nthus be invalid. Public bodies have an express statutory duty to provide members of the public\nwith the opportunity to verbally address their members at in-person open meetings. Therefore,\nthis office cautions the Board to refrain from requiring members of the public to submit public\ncomments in writing and ensure that members of the public are permitted to vocally address its\nmembers in person at each open meeting, and to otherwise fully uphold the right to address\npublic officials.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this file. If you have\nquestions, you may contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n77728 o 201 improper 206g pub comment improper mun\ncc:\n\nVia electronic mail\nThe Honorable Tiffany A. Henyard\nSupervisor\nThornton Township\n333 East 162nd Street\nSouth Holland, Illinois 60473\nc/o kfreeman@thorntontwp. com\n18E- mail from\n\nto [Katie] Goldsmith (October 7, 2023).\n\n19 This office notes that the analysis in this matter concerns only in-person meetings, not the remote\nmeetings that were available during the COVID- 19 pandemic under section 7(e) of OMA (5 ILCS 120/ 7(e) (West\n2022))."}
{"id":1435,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-10-04","case_number":null,"request_numbers":["77831"],"title":"Coles County Board did not violate OMA by limiting speaker's time and removing them from meeting","filename":"77831, issued October 4, 2023.pdf","rel_path":null,"word_count":1223,"summary":"A requester alleged that the Coles County Board violated the Open Meetings Act by restricting public comment time and improperly removing a citizen from a meeting. The PAC determined the allegations were unfounded because the Board acted within its authority to manage meeting disruptions.","plain_summary":"A citizen complained that the Coles County Board unfairly limited their speaking time and kicked them out of a public meeting. The Attorney General's office reviewed the video of the meeting and found that the Board followed the law, as they have the right to maintain order and prevent disruptions during public proceedings. Consequently, the PAC closed the case with no finding of a violation.","holding":"The PAC determined that the Coles County Board did not violate the Open Meetings Act regarding public comment procedures or the removal of a disruptive individual.","legal_question":"Whether the Coles County Board violated section 2.06(g) of the Open Meetings Act by limiting a speaker's time and removing them from a public meeting.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Coles County Board","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting conduct","subject_description":"The dispute concerns the regulation of public comment time and the removal of a member of the public from a county board meeting due to alleged disruptive behavior.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/77831, issued October 4, 2023.pdf","sha256":"24ebbf54b1485bd5e454a7395d130ab728a10194e6055d55016ff52f6b238ef1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting disruption","Open Meetings Act","Coles County Board"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 4, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77831\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons that follow, the Public Access Bureau\nhas determined that this Request for Review is unfounded.\nOn August 22, 2023, you submitted a Request for Review alleging that the Coles\nCounty Board ( Board) violated OMA during its August 8, 2023, meeting, when the Board\nChairman did not allow a named member of the public a full three minutes of public speaking\ntime despite not having established and recorded public comment rules. You also alleged that\nthe Board then improperly had the member of the public removed from the meeting. You\nincluded a link to a video recording of the August 8, 2023, Board meeting.\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)) provides: \" Any\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" The plain language of section 2.06(g) requires a public body\nto permit an opportunity for public comment, subject only to the rules it has established and\nrecorded. A public body violates section 2.06(g) of OMA when it either ( 1) prohibits a member\nof the public from addressing its members in a manner inconsistent with its established and\nrecorded rules, or (2) prohibits a member of the public from providing public comment pursuant\nto its established and recorded rules, but those rules unreasonably restrict that person' s right to\naddress public officials. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014,\nat 5-7. Pursuant to its established and recorded rules, \" a public body may legitimately prescribe\nreasonable time limits for public comment.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued\nSeptember 30, 2014, at 5-6. This office has previously determined that a brief interruption that\ndoes not preclude a speaker from completing his or her public comment does not constitute an\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fOctober 4, 2023\nPage 2\n\nimproper restriction on public comment. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n37496, issued December 11, 2015, at 3.\nOn September 11, 2023, an Assistant Attorney General ( AAG) in the Public\nAccess Bureau contacted the Board to clarify whether the Board had adopted rules regarding\npublic comment. On September 15, 2023, the Board provided this office with copies of two\nresolutions governing public comment, 1 and confirmed that the two resolutions were the\ncomplete set of the Board' s rules governing public comment. The resolutions each provide that\na] public comment for any person is restricted to 3 minutes[,]\" though the chairman or a\nmajority of the Board may elect to grant additional time.\nThis office has reviewed the video recording you provided of the Board' s August\n8, 2023, meeting. The recording demonstrates that during the speaker' s public comment time, he\nmade comments interspersed with questions posed to Chairman Darrell Cox and the Board. 2\nThe video depicts the Chairman responding to questions posed by the speaker. 3 The video also\ndemonstrates that the speaker was provided three full minutes for public comment in accordance\nwith the Board' s established and recorded rules. Because the Chairman did not interrupt the\nspeaker but instead engaged with the speaker' s questions, and because the speaker was allowed\nto participate in public comment for the amount of time permitted by Board rules, this office\nconcludes that the allegation the Board improperly restricted the person' s public comment is\nunfounded.\nAs to your allegation that the member of the public was improperly removed from\nthe meeting, the Public Access Bureau has previously determined that a public body is not\nrequired to allow a member of the public to cede time to another member of the public who has\nalready addressed the public body for the full time allotted, absent a public comment rule\nadopted by the public body that requires time to be ceded upon request. See, for example, Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 63099, issued June 16, 2020, at 3. The Board does not have an\nestablished and recorded rule that would require the Board to allow a member to cede public\ncomment time to another member. The video recording of the meeting demonstrates that the\nChairman did not allow a member of the public to cede his public comment time to the previous\nspeaker, who was subsequently removed when he refused to acknowledge the Chairman and\n1Coles County Board, Resolution Regulating the Right of the Public to Speak at Open Meetings\nMarch 14, 2017); Coles County Board, Amendment to the Resolution Regulating the Right of the Public to Speak\nat Open Meetings ( February 13, 2019).\n2Edgar County Watchdogs, Coles County - 8.8.2023, Facebook, video recording at 17:15 (August\n8, 2023), https:// www.facebook. com/100063665378559/ videos/ 1842655446189511/\n3Edgar County Watchdogs, Coles County - 8.8.2023, Facebook, video recording at 17:26 (August\n8, 2023), https:// www. facebook. com/ 100063665378559/ videos/ 1842655446189511/.\n\n\fOctober 4, 2023\nPage 3\n\ncontinued to speak to the Board. 4 It is evident from the video you provided that the named\nspeaker' s refusal to adhere to the Chairman' s valid direction to cease providing a second public\ncomment disrupted the meeting. When a member of the public continues to engage in disruptive\nconduct at an open meeting, a public body may remove the person to restore order and maintain\ndecorum. For instance, in Eichenlaub v. Township of Indiana, 385 F.3d 274, 281 ( 8th Cir. 2004),\nthe appellate court explained that a township board did not improperly remove a member of the\npublic for disrupting a meeting because:\nRestricting such behavior is the sort of time, place, and manner\nregulation that passes muster under the most stringent scrutiny for\na public forum. Indeed, for the presiding officer of a public\nmeeting to allow a speaker to try to hijack the proceedings, or to\nfilibuster them, would impinge on the First Amendment rights of\nother would- be participants.\nUnder these circumstances, the allegation that the Board improperly removed a\nmember of the public for causing a disruption of Board business during the August 8, 2023,\nmeeting is unfounded.\nThis file is closed. If you have any questions, please contact me at 773-590-6840,\nmatthew. goodman@ilag. gov, or at the Chicago address listed on the bottom of the first page of\nthis letter.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n77831 o unf co\n\n4Edgar County Watchdogs, Coles County - 8.8.2023, Facebook, video recording at 21:50-23:00\nAugust 8, 2023), https:// www. facebook. com/ 100063665378559/ videos/ 1842655446189511/.\n\n\fOctober 4, 2023\nPage 4\n\ncc:\n\nVia electronic mail\nThe Honorable Darrell Cox\nChairman\nColes County Board\n651 Jackson, Room 326\n3rd Floor – County Courthouse\nCharleston, Illinois 61920\ncbdistrict01@gmail. com\ncountyboard@co. coles. il.us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A county board's removal of a public commenter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77831/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 4, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77831\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons that follow, the Public Access Bureau\nhas determined that this Request for Review is unfounded.\nOn August 22, 2023, you submitted a Request for Review alleging that the Coles\nCounty Board (Board) violated OMA during its August 8, 2023, meeting, when the Board\nChairman did not allow a named member of the public a full three minutes of public speaking\ntime despite not having established and recorded public comment rules. You also alleged that\nthe Board then improperly had the member of the public removed from the meeting. You\nincluded a link to a video recording of the August 8, 2023, Board meeting.\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)) provides: \" Any\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" The plain language of section 2.06(g) requires a public body\nto permit an opportunity for public comment, subject only to the rules it has established and\nrecorded. A public body violates section 2.06(g) of OMA when it either (1) prohibits a member\nof the public from addressing its members in a manner inconsistent with its established and\nrecorded rules, or (2) prohibits a member of the public from providing public comment pursuant\nto its established and recorded rules, but those rules unreasonably restrict that person's right to\naddress public officials. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014,\nat 5-7. Pursuant to its established and recorded rules, \" a public body may legitimately prescribe\nreasonable time limits for public comment.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued\nSeptember 30, 2014, at 5-6. This office has previously determined that a brief interruption that\ndoes not preclude a speaker from completing his or her public comment does not constitute an\n\nimproper restriction on public comment. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n37496, issued December 11, 2015, at 3.\nOn September 11, 2023, an Assistant Attorney General (AAG) in the Public\nAccess Bureau contacted the Board to clarify whether the Board had adopted rules regarding\npublic comment. On September 15, 2023, the Board provided this office with copies of two\nresolutions governing public comment, 1 and confirmed that the two resolutions were the\ncomplete set of the Board's rules governing public comment. The resolutions each provide that\na] public comment for any person is restricted to 3 minutes[,]\" though the chairman or a\nmajority of the Board may elect to grant additional time.\nThis office has reviewed the video recording you provided of the Board's August\n8, 2023, meeting. The recording demonstrates that during the speaker's public comment time, he\nmade comments interspersed with questions posed to Chairman Darrell Cox and the Board. 2\nThe video depicts the Chairman responding to questions posed by the speaker. 3 The video also\ndemonstrates that the speaker was provided three full minutes for public comment in accordance\nwith the Board's established and recorded rules. Because the Chairman did not interrupt the\nspeaker but instead engaged with the speaker's questions, and because the speaker was allowed\nto participate in public comment for the amount of time permitted by Board rules, this office\nconcludes that the allegation the Board improperly restricted the person's public comment is\nunfounded.\nAs to your allegation that the member of the public was improperly removed from\nthe meeting, the Public Access Bureau has previously determined that a public body is not\nrequired to allow a member of the public to cede time to another member of the public who has\nalready addressed the public body for the full time allotted, absent a public comment rule\nadopted by the public body that requires time to be ceded upon request. See, for example, Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 63099, issued June 16, 2020, at 3. The Board does not have an\nestablished and recorded rule that would require the Board to allow a member to cede public\ncomment time to another member. The video recording of the meeting demonstrates that the\nChairman did not allow a member of the public to cede his public comment time to the previous\nspeaker, who was subsequently removed when he refused to acknowledge the Chairman and\n1 Coles County Board, Resolution Regulating the Right of the Public to Speak at Open Meetings\nMarch 14, 2017); Coles County Board, Amendment to the Resolution Regulating the Right of the Public to Speak\nat Open Meetings (February 13, 2019).\n2 Edgar County Watchdogs, Coles County - 8.8.2023, Facebook, video recording at 17:15 (August\n8, 2023), https:// www.facebook. com/100063665378559/ videos/ 1842655446189511/\n3 Edgar County Watchdogs, Coles County - 8.8.2023, Facebook, video recording at 17:26 (August\n\ncontinued to speak to the Board. 4 It is evident from the video you provided that the named\nspeaker's refusal to adhere to the Chairman's valid direction to cease providing a second public\ncomment disrupted the meeting. When a member of the public continues to engage in disruptive\nconduct at an open meeting, a public body may remove the person to restore order and maintain\ndecorum. For instance, in Eichenlaub v. Township of Indiana, 385 F.3d 274, 281 (8th Cir. 2004),\nthe appellate court explained that a township board did not improperly remove a member of the\npublic for disrupting a meeting because:\nRestricting such behavior is the sort of time, place, and manner\nregulation that passes muster under the most stringent scrutiny for\na public forum. Indeed, for the presiding officer of a public\nmeeting to allow a speaker to try to hijack the proceedings, or to\nfilibuster them, would impinge on the First Amendment rights of\nother would- be participants.\nUnder these circumstances, the allegation that the Board improperly removed a\nmember of the public for causing a disruption of Board business during the August 8, 2023,\nmeeting is unfounded.\nThis file is closed. If you have any questions, please contact me at 773-590-6840,\nmatthew. goodman@ilag. gov, or at the Chicago address listed on the bottom of the first page of\nthis letter.\nVery truly yours,\n\ncc:\n\nVia electronic mail\nThe Honorable Darrell Cox\nChairman\nColes County Board\n651 Jackson, Room 326\n3rd Floor – County Courthouse\nCharleston, Illinois 61920\ncbdistrict01@gmail. com\ncountyboard@co. coles. il.us"}
{"id":1436,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-09-11","case_number":null,"request_numbers":["77875"],"title":"Cook County Board of Review no further action on virtual meeting rules","filename":"77875, issued September 11, 2023.pdf","rel_path":null,"word_count":946,"summary":"A requester challenged the Cook County Board of Review's virtual meeting attendance and public comment registration requirements under the Open Meetings Act. The PAC determined that because OMA does not mandate that public bodies provide remote access to meetings, the Board's virtual procedures are not subject to OMA regulation.","plain_summary":"A citizen complained that the Cook County Board of Review made it too difficult to attend meetings online or provide public comments. The Attorney General's office explained that the Open Meetings Act does not actually require public bodies to offer remote attendance options at all. Because the law doesn't require virtual meetings, the Board's rules for them do not violate the Act.","holding":"The PAC determined that no further action is warranted because the Open Meetings Act does not govern a public body's procedures for virtual attendance.","legal_question":"Does the Open Meetings Act govern the procedures a public body establishes for virtual meeting attendance and public comment?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Cook County Board of Review","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The requester challenged the Board's requirements for virtual meeting registration and advance public comment submission.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/7/77875, issued September 11, 2023.pdf","sha256":"a261b54083dd07a5028eefee30881cd2893593c7d45269ff9474723cd448f52b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["remote meeting","virtual attendance","public comment","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 11, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77875\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/3.5(b) (West 2022)). For the reasons explained below, this office has\ndetermined that no further action is warranted in this matter.\nOn August 24, 2023, you submitted a Request for Review to the Public Access\n\nBureau asking this office to review whether the Cook County Board of Review's ( Board) rules\nfor virtual attendance and public comment complied with OMA. Your Request for Review\n\nstates that your complaint \"concerns the August 24, 2023, meeting.\" 1 You assert that the Board's\nvirtual attendance policy requires members of the public to register in order to attend a Board\n\nmeeting remotely, which you appear to allege violates OMA. Additionally, you allege that the\nBoard requires individuals to submit a public comment form two business days before the\n\nBoard's meeting at which the person wishes to speak, and requests that speakers indicate an\nagenda item that they wish to address at the meeting.\nSection 3.5(a) of OMA2 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General[.] * * *\n\nThe request for review * * *\n\nmust include a summary of the facts supporting the allegation.\" (Emphasis added).\n1E- mail from\n\nto PAC Bartelt (August 24, 2023).\n\n25 ILCS 120/3.5(a) ( West 2022).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fSeptember 11, 2023\nPage 2\n\nAs an initial matter, the Public Access Bureau previously addressed your concerns\n\nregarding the Board's public comment rules in Request for Review 2023 PAC 75707,3 and\ntherefore, this office has determined that no further action is warranted with respect to those\n\nallegations.\nFurther, you have not alleged a specific instance in which you, or any other\nmember of the public, wished to attend a meeting virtually but was unable to do so because of\n\nthe Board's rules. This office has consistently determined that it will not undertake a review of a\npublic body' s rules without an allegation that those rules were applied in a manner that violated\n\nOMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 50917, issued January 3, 2018, at 2\nallegation concerning the reasonableness of a county board' s rules governing the right of the\npublic to record open meetings did not warrant further action because there was no indication\n\nthat anyone was prohibited from exercising their right to record a meeting); Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 75707, issued April 3, 2023, at 2 (allegation that public comment rules violated\n\nOMA insufficient to merit further action absent facts indicating that any member of the public\nwas improperly restricted from addressing public officials).\nEven if you had alleged a specific instance in which the Board enforced its\n\nprocedures to prevent a member of the public from attending a meeting virtually, it would not\nsupport an allegation that the Board violated OMA. The provision of OMA that requires a\n\npublic body to provide the public with contemporaneous audio or video access4 applies when a\npublic body meets without a quorum of their members physically present. Section 7(e) of OMA5\n\npermits a public body to conduct meetings remotely without the physical presence of a quorum\nonly when the Governor or the Director of the Illinois Department of Public Health has issued a\n\ndisaster declaration related to public health concerns. No such disaster declaration was in place\nat the time of the August 24, 2023, meeting. According to the posted meeting notice, the Board' s\n\nAugust 24, 2023, meeting appears to have been conducted in-person with the physical presence\nof a quorum of Board members, and members of the public had the option of attending in-\n\nperson.6 Therefore, the Board was not required to allow members of the public to attend the\nmeeting remotely, but providing a remote attendance option enhanced the accessibility and\n\nopenness of the meeting.\n\n3For ease of reference, this office has attached a copy of that determination.\n45 ILCS 120/7(e)( 4) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n55 ILCS 120/7(e)( 1) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n6Cook County Board of Review, Notice of Meeting (August 24, 2023).\n\n\fSeptember 11, 2023\nPage 3\n\nBecause OMA does not require the Board to permit members of the public to\n\nattend its meetings remotely, its virtual attendance procedures are not governed by OMA.\nTherefore, this office has determined that no further action is warranted in this matter. This file\n\nis closed. If you have any questions, my e-mail is Shannon.Barnaby@ilag.gov.\nVery truly yours,\n\nSHANNON BARNABY\n\nSenior Assistant Attorney General\nPublic Access Bureau\n77875 o no fi war co\ncc:\n\nVia electronic mail\n\nMs. Cristin Duffy\nGeneral Counsel and Chief Ethics Officer\n\nCook County Board of Review\n69 West Washington Street, Suite 1110\n\nChicago, Illinois 60602\nCristin. Duffy@cookcountyil. gov\nVia electronic mail\n\nMs. Liliana Escarpita\nSecretary of the Board\n\nCook County Board of Review\n118 North Clark Street, Suite 608\n\nChicago, Illinois 60602\nLiliana. Escarpita@cookcountyil. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Virtual meeting registration and public comment rules","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77875/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 11, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 77875\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings\n\nAct (OMA) (5 ILCS 120/3.5(b) (West 2022)). For the reasons explained below, this office has\ndetermined that no further action is warranted in this matter.\nOn August 24, 2023, you submitted a Request for Review to the Public Access\n\nBureau asking this office to review whether the Cook County Board of Review's (Board) rules\nfor virtual attendance and public comment complied with OMA. Your Request for Review\n\nstates that your complaint \"concerns the August 24, 2023, meeting.\" 1 You assert that the Board's\nvirtual attendance policy requires members of the public to register in order to attend a Board\n\nmeeting remotely, which you appear to allege violates OMA. Additionally, you allege that the\nBoard requires individuals to submit a public comment form two business days before the\n\nBoard's meeting at which the person wishes to speak, and requests that speakers indicate an\nagenda item that they wish to address at the meeting.\nSection 3.5(a) of OMA2 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor established in the Office of the Attorney General[.] * * *\n\nThe request for review * * *\n\nmust include a summary of the facts supporting the allegation.\" (Emphasis added).\n1E- mail from\n\nto PAC Bartelt (August 24, 2023).\n\n25 ILCS 120/3.5(a) (West 2022).\n\nAs an initial matter, the Public Access Bureau previously addressed your concerns\n\nregarding the Board's public comment rules in Request for Review 2023 PAC 75707,3 and\ntherefore, this office has determined that no further action is warranted with respect to those\n\nallegations.\nFurther, you have not alleged a specific instance in which you, or any other\nmember of the public, wished to attend a meeting virtually but was unable to do so because of\n\nthe Board's rules. This office has consistently determined that it will not undertake a review of a\npublic body's rules without an allegation that those rules were applied in a manner that violated\n\nOMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 50917, issued January 3, 2018, at 2\nallegation concerning the reasonableness of a county board's rules governing the right of the\npublic to record open meetings did not warrant further action because there was no indication\n\nthat anyone was prohibited from exercising their right to record a meeting); Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 75707, issued April 3, 2023, at 2 (allegation that public comment rules violated\n\nOMA insufficient to merit further action absent facts indicating that any member of the public\nwas improperly restricted from addressing public officials).\nEven if you had alleged a specific instance in which the Board enforced its\n\nprocedures to prevent a member of the public from attending a meeting virtually, it would not\nsupport an allegation that the Board violated OMA. The provision of OMA that requires a\n\npublic body to provide the public with contemporaneous audio or video access4 applies when a\npublic body meets without a quorum of their members physically present. Section 7(e) of OMA5\n\npermits a public body to conduct meetings remotely without the physical presence of a quorum\nonly when the Governor or the Director of the Illinois Department of Public Health has issued a\n\ndisaster declaration related to public health concerns. No such disaster declaration was in place\nat the time of the August 24, 2023, meeting. According to the posted meeting notice, the Board's\n\nAugust 24, 2023, meeting appears to have been conducted in-person with the physical presence\nof a quorum of Board members, and members of the public had the option of attending in-\n\nperson.6 Therefore, the Board was not required to allow members of the public to attend the\nmeeting remotely, but providing a remote attendance option enhanced the accessibility and\n\nopenness of the meeting.\n\n3 For ease of reference, this office has attached a copy of that determination.\n45 ILCS 120/7(e)(4) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n55 ILCS 120/7(e)(1) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\nBecause OMA does not require the Board to permit members of the public to\n\nattend its meetings remotely, its virtual attendance procedures are not governed by OMA.\nTherefore, this office has determined that no further action is warranted in this matter. This file\n\nis closed. If you have any questions, my e-mail is Shannon.Barnaby@ilag.gov.\nVery truly yours,\n\nSHANNON BARNABY\n\nSenior Assistant Attorney General\nPublic Access Bureau\n77875 o no fi war co\ncc:\n\nVia electronic mail\n\nMs. Cristin Duffy\nGeneral Counsel and Chief Ethics Officer\n\nCook County Board of Review\n69 West Washington Street, Suite 1110\n\nChicago, Illinois 60602\nCristin. Duffy@cookcountyil. gov\nVia electronic mail\n\nMs. Liliana Escarpita\nSecretary of the Board\n\nCook County Board of Review\n118 North Clark Street, Suite 608\n\nChicago, Illinois 60602\nLiliana. Escarpita@cookcountyil. gov"}
{"id":1437,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-04-09","case_number":null,"request_numbers":["78082"],"title":"Schaumburg DEI subcommittees are public bodies, violated Open Meetings Act by failing to give notice","filename":"78082, issued April 9, 2024.pdf","rel_path":null,"word_count":2303,"summary":"The PAC investigated whether subcommittees of the Township of Schaumburg's DEI Committee were required to comply with the Open Meetings Act. The PAC determined that these subcommittees are public bodies and held improper, unnoticed meetings.","plain_summary":"A citizen complained that subcommittees of a Township committee were meeting in private without public notice. The Attorney General's office agreed, ruling that these subcommittees are 'public bodies' and must follow state transparency laws. This means they are now required to post meeting notices, keep minutes, and allow public participation in the future.","holding":"The Township of Schaumburg's Demographic and Mission Statement subcommittees are public bodies subject to the Open Meetings Act and violated the Act by failing to provide public notice of their meetings.","legal_question":"Whether subcommittees of a Township DEI Committee constitute 'public bodies' subject to the notice and transparency requirements of the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/1.02","5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Township of Schaumburg DEI Committee","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The failure of Township DEI subcommittees to provide public notice for their meetings.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/committees-and-subcommittees/78082, issued April 9, 2024.pdf","sha256":"d3a973f2a4d52b69118376501b249cad2656d461d96819712b9a4a3c94898711","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","subcommittee","public body","meeting notice","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nApril 9, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Thomas J. Halleran\nStorino, Ramello &\n\nDurkin\n\n9501 West Devon Avenue, Suite 800\nRosemont, Illinois 60018\nthomas@srd- law. com\nRE: OMA Request for Review — 2023 PAC 78082\n\nOlson and Mr. Halleran:\n\nDear\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that two subcommittees of the Township of Schaumburg ( Township) DEI\nCommittee ( Committee) have held improper unnoticed meetings because they are public bodies\nsubject to the requirements\n\nof the Act.\n\nIn a Request for Review submitted\n\nSeptember 8, 2023,\n\nalleged that during the September 6, 2023, Committee meeting, the chairperson stated that\nworking groups that report to the Committee\nprovided for those meetings as required.\n\nhad met; _\nalso alleged: \"\n\nalleged that no notice had been\n\nA current trustee to the Township,\n\nGibson, asserted several weeks ago that there was a subcommittee\n\nof the DEI committee\n\nwhich\n\nnot public - facing.'\"\nIndeed, during the Committee' s May 3, 2023, meeting, under the\nDemographic Subcommittee Report\" item, the minutes state: \" Subcommittees are not public\n\nwas '\n\nfacing body [ sic]. Public is not free to make inquiries during this time.\" 2 The \" Reports\" section\nE- mail from\n\nto Public Servant ( September 8, 2023).\n\n2Township of Schaumburg DEI Committee, Meeting, May 3, 2023, Minutes 1.\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: ( 312) 814. 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\nwww. IllinoisAttomeyGeneral.\n\ngov\n\nFax: ( 618) 529- 6416\n\n\fMr. Thomas J. Halleran\nApril 9, 2024\nPage 2\n\nof the minutes also contains a summary of the \" Mission Statement Subcommittee Report\"\nprovided during the meeting. 3 The Request for Review alleged \" that meetings of working groups\nwhich report to the DEI committee constitute meetings of public bodies, and that a failure to\nsupply proper notice of such meetings is a violation of the OMA.\" 4\nOn September 13, 2023, this office sent a copy of the Request for Review to the\nCommittee and asked it to provide, for this office' s confidential review, copies of any records\nfrom the working group or subcommittee gatherings that occurred in the 60 days prior to the\nsubmission of this Request for Review, such as agendas, minutes, notes, proposals, presentations,\n\nThis office also requested a detailed written answer to the allegation that these working\ngroups/ subcommittees had violated OMA during this time period by holding meetings without\nfollowing the procedures set out in OMA. On September 25, 2023, the Township' s outside\ncounsel responded on behalf of the Committee, providing a draft copy of a mission statement for\netc.\n\nthis office' s confidential\n\nreview\n\nbut no other records because \"[ t] he Township\n\nagendas or minutes from the gatherings\n\ndoes not maintain\n\nof the workinggroups[.]\" 5\n\nany\nThe Township' s attorney\nasserted that the \"' Demographic Team\"' and \"' Mission Statement Team\" are working groups that\n\nare not subject to the requirements of OMA because neither group is comprised of a majority of\na quorum of the Committee.\nGiven that the Request for Review did not allege that the Demographic\n\nand\n\nMission Statement groups were subject to OMA because they constituted meetings of the\nCommittee, but instead alleged that each group is itself a public body, an Assistant Attorney\nGeneral (AAG) in the Public Access Bureau followed up with the Township' s attorney by e- mail.\nNoting that the Committee' s May 3, 2023, minutes refer to the entities at issue as\nsubcommittees,\"\nand that subcommittees constitute public bodies subjcct to OMA, the AAG\nasked the Township' s counsel to \" supplement the Committee' s answer by explaining how these\nsubcommittees'\n\nwere formulated, how the members were appointed, and the nature of the\n\nfunctions performed by these entities.\" 6 On September 29, 2023, the Township' s attorney\n\nprovided a supplemental response. On October 2, 2023,11M submitted a reply addressing both\nresponses by maintaining that the entities are public bodies which must comply with the Act.\n\n3Township of Schaumburg DEI Committee, Meeting, May 3, 2023, Minutes 1.\n4E- mail\n\nto Public Servant ( September 8, 2023).\n\nfrom\n\nSLetterfrom Thomas J.\nHal eran, Storino, Ramello & Durkin,\nPublic Access Bureau (September\n\n25,\n2023), at\n\nto Joshua Jones, Deputy Bureau Chief,\n\n2. 6E-\n\nmail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney\nGeneral, to Thomas]\n[ Halleran ( September\n\n27,2023). Office\n\nof the Illinois Attorney General\n\n\fMr. Thomas J. Halleran\nApril 9, 2024\nPage 3\nDETERMINATION\n\nIn order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations\n\nbe conducted openly.\"\n\n5 ILCS 120/ 1 ( West 2022).\n\nSection 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2022))\n\ndefines a \" public body\" as:\n\nA] 11 legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations,\n\nboards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies ofany ofthe foregoing including but not limited\nto committees and subcommittees which are supported in whole or\n\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nEmphasis\n\nadded.)\n\nThus, OMA expressly includes \" subsidiary bodies * * *\n\nincluding but not limited to * * *\n\nsubcommittees which are supported in whole or in part by tax revenue, or which expend tax\nin the definition of \"public body.\" Illinois courts consider the following factors in\ndetermining whether an entity could be a \" subsidiary body\": ( 1) the extent to which the entity\nhas a legal existence independent of govemment resolution, (2) the degree of government control\nexerted over the entity, ( 3) the extent to which the entity is publicly funded, and (4) the nature of\nthe functions performed by the entity. Better Government Ass' n v. Illinois High School Assn,\nrevenue,\"\n\n2017 IL 121124, 411 26.\ndeterminative\ncontrol.\"\n\nIn that case, the Illinois Supreme Court explained that \" no single factor is\n\nor conclusive, but * * *\n\nthe key distinguishing factors are government creation and\n\nBetter Government Assn, 2017 IL 121124, ¶\n\n26.\n\nIn its answer to this office, the Township \"assert[ ed] that the Demographic Team\nand Mission Statement Team created to support the DEI Committee are not subsidiary bodies of\n\nthe DEI, even though such teams were initially listed as the Demographic Subcommittee Team\nand Mission Statement Subcommittee Team on the May 3, 2023 Meeting Agenda of the DEI\nCommittee.\" 7 The Township described the formation of the \" teams\" as follows:\nThe DEI Committee was established by ordinance on\nSeptember 28, 2022 and the first meeting of the DEI Committee\ntook place on January 4, 2023. As a new committee, the DEI\nsought to formulate a clear and concise mission statement.\n\nLetter from ThomasJ. Halleran, Storino, Ramello &\nChief, Public Access Bureau ( September\n\nDurkin, to Joshua Jones, Deputy Bureau\n\n29, 2023), at [ 1].\n\nOffice of the Illinois Attorney General\n\n\fMr. Thomas J. Halleran\nApril 9, 2024\nPage 4\n\nAdditionally, the DEI Committee determined that in order [ to] best\nserve the residents of the Township, it required an analysis of the\ndemographic data of such persons residing within the Township.\nIn order to accomplish these aforementioned goals, the DEI asked\n\nfor volunteers from among its committee members and also from\nnon -committee members. Thereafter, the Mission Statement Team\nand Demographic\n\nTeam was formed through such volunteers. The\n\nDEI Committee did not vote for or appoint such members of the\nMission Statement Team or the Demographic Team. Each team, or\nworking groups\", is comprised of four ( 4) members, which\ninclude committee members and non -committee volunteers.\n\nCertain individuals joined these teams based upon their area of\nexpertise in their occupation.\n\nFor example, a member of the\n\nDemographic Team is a data analyst that is proficient in analyzing\ndemographic data. [81\n\nThis office reviewed the minutes posted on the Committee' s webpage9 in search\nof information about the formulation of the \" teams\" at issue, and found that during the\nCommittee' s April 5, 2023, meeting, the following actions occurred during new business as the\nCommittee was discussing demographic data:\nb.\n\nMotion to create a subcommittee to work together to work on\n\nrecommendations to share out with the big team based on the\ndata reviewed this evening\ni.\n\nMotion\n\nii.\n\nFelipe, Larin, Kevin, Sophie. Larin will be the point\n\napproved\n\n6 aye' s 0 nays\n\nperson.\nc.\n\nMotion to create a subcommittee to work on developing\ncommittee\n\nmission\n\nstatement\n\ni.\n\nMotion approves 6 aye' s 0 nays\n\nii.\n\nSohal, Gennie, Felipe, Ayaanito]\n\n8LetterfromThomasJ.\n\nHalleran,\n\nStorino, Ramcllo &\n\nDurkin, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau ( September 29, 2023), at [ 1- 2].\n\n9Township of Schaumburg, Agendas &\n\nMinutes,\n\nhttps:// schaumburgtownship. org/ transparency/ agenda - minutes/.\n\n10Township of Schaumburg DEI Committee, Meeting, April 5, 2023, Minutes [ 2].\n\nOffice of the Illinois Attorney General\n\n\fMr. Thomas J. Halleran\nApril 9, 2024\nPage 5\n\nTherefore, despite the Township' s assertions that the \" teams\" were established informally, the\nCommittee did in fact formally create Demographic and Mission Statement subcommittees and\nappears to have accepted if not appointed their members too. Further, the \" teams\" have no legal\nexistence independent\n\nof the Committee.\n\nAs to the functions\n\nand roles of the \" teams,\"\n\nthe Township asserted:\n\nThe Mission Statement Team is a project -based team that\nwas formed in order to formulate a clear and concise mission\n\nstatement for the DEI Committee by brain storming ideas in an\ninformal setting and providing such ideas or suggestions to the DEI\nCommittee. Once this project is complete, the Mission Statement\nTeam will no longer gather. The Demographic Team' s function is\nto compile and analyze demographic data, in order to provide such\ninformation to the DEI Committee so that it may best serve the\nTownship' s residents. This type of information compilation and\nanalysis is best completed outside of a formal DEI Committee\n\nmeeting setting due to the time required to compile and analyze\nsuch data. Both teams gather in an informal manner at a time and\nlocation that is determined by the team members not the DEI\nCommittee. These team gatherings do not take place at a regular\ndate or time and are not funded by the DEI Committee or the\nTownship. The purpose of both teams is to gather information and\nformulate ideas to support the DEI Committee, which can be more\n\neffectively done through a smaller informal team, or working\ngroup, such as the Mission Statement Team and Demographic\n\nTeam. Such information gathered or ideas presented to the DEI\nCommittee are reflected on the DEI Committee' s agenda and in the\n\nDEI Committee' s meeting minutes. lttl\nThe Township has acknowledged that the \" teams\" were created solely to support the public\nbusiness of the Committee and thereby serve the Township. The Township' s attorney did not\ncite any case law or other legal authority supporting the claim that the \" teams\" are not public\nbodies. Although the Township' s attorney stated that the Committee does not choose meeting\ntimes or locations\n\nfor the \" teams,\"\n\nthese entities report to the Committee, are expected to provide\n\nwork product to the Committee to advance its objectives, and serve at the pleasure of the\nCommittee. Additionally, although the Township' s attorney asserted that the \" team gatherings\"\nare not funded by the Committee or the Township, the Township acknowledged that the\nCommittee is part of the Township government by ordinance. Moreover, the \" teams\" perform\nLetter from Thomas J. Halleran, Storino, Ramello &\nChief, Public Access Bureau ( September\n\nDurkin, to Joshua Jones, Deputy Bureau\n\n29, 2023), at [ 2].\n\nOffice of the Illinois Attorney General\n\n\fMr. Thomas J. Halleran\nApril 9, 2024\nPage 6\n\nthe quintessential subcommittee role of studying and reporting back on specific issues within the\nCommittee' s purview.\nAccordingly, regardless of whether the Township wishes to refer to them as\nworking groups\"\nsubcommittees\n\nor \" teams,\"\n\nare\n\nthis office concludes that the Demographic and Mission Statement\n\npublic bodies subject to the requirements\n\nof OMA.\n\nThis office requests that\n\nthe subcommittees conduct all future meetings in accordance with the provisions of OMA.\nAmong other things, the subcommittees should provide advance notice of their meetings ( 5 ILCS\n120/ 2. 02 ( West 2022)), keep written minutes ( 5 ILCS 120/ 2, 06( a) ( West 2022)), and provide\nmembers of the public with an opportunity to address subcommittee members ( 5 ILCS\n120/ 2. 06( g) ( West 2022)). This office also requests that any subcommittee members who have\nnot already done so complete the OMA electronic training curriculum developed and\nadministered by the Public Access Counselor. See 5 ILCS 120/ 1. 05 ( West 2022).\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Burcau\n\n78082 o vio mun\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A DEI subcommittee's failure to provide meeting notice","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78082/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nApril 9, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Thomas J. Halleran\nStorino, Ramello &\n\nDurkin\n\n9501 West Devon Avenue, Suite 800\nRosemont, Illinois 60018\nthomas@srd- law. com\nRE: OMA Request for Review — 2023 PAC 78082\n\nOlson and Mr. Halleran:\n\nDear\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2022)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that two subcommittees of the Township of Schaumburg (Township) DEI\nCommittee (Committee) have held improper unnoticed meetings because they are public bodies\nsubject to the requirements\n\nof the Act.\n\nIn a Request for Review submitted\n\nSeptember 8, 2023,\n\nalleged that during the September 6, 2023, Committee meeting, the chairperson stated that\nworking groups that report to the Committee\nprovided for those meetings as required.\n\nhad met; _\nalso alleged: \"\n\nalleged that no notice had been\n\nA current trustee to the Township,\n\nGibson, asserted several weeks ago that there was a subcommittee\n\nof the DEI committee\n\nwhich\n\nnot public - facing.'\"\nIndeed, during the Committee's May 3, 2023, meeting, under the\nDemographic Subcommittee Report\" item, the minutes state: \" Subcommittees are not public\n\nwas '\n\nfacing body [ sic]. Public is not free to make inquiries during this time.\" 2 The \" Reports\" section\nE- mail from\n\nto Public Servant (September 8, 2023).\n\n2 Township of Schaumburg DEI Committee, Meeting, May 3, 2023, Minutes 1.\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: (312) 814. 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\n\nof the minutes also contains a summary of the \" Mission Statement Subcommittee Report\"\nprovided during the meeting. 3 The Request for Review alleged \" that meetings of working groups\nwhich report to the DEI committee constitute meetings of public bodies, and that a failure to\nsupply proper notice of such meetings is a violation of the OMA.\" 4\nOn September 13, 2023, this office sent a copy of the Request for Review to the\nCommittee and asked it to provide, for this office's confidential review, copies of any records\nfrom the working group or subcommittee gatherings that occurred in the 60 days prior to the\nsubmission of this Request for Review, such as agendas, minutes, notes, proposals, presentations,\n\nThis office also requested a detailed written answer to the allegation that these working\ngroups/ subcommittees had violated OMA during this time period by holding meetings without\nfollowing the procedures set out in OMA. On September 25, 2023, the Township's outside\ncounsel responded on behalf of the Committee, providing a draft copy of a mission statement for\netc.\n\nthis office's confidential\n\nreview\n\nbut no other records because \"[ t] he Township\n\nagendas or minutes from the gatherings\n\ndoes not maintain\n\nof the workinggroups[.]\" 5\n\nany\nThe Township's attorney\nasserted that the \"' Demographic Team\"' and \"' Mission Statement Team\" are working groups that\n\nare not subject to the requirements of OMA because neither group is comprised of a majority of\na quorum of the Committee.\nGiven that the Request for Review did not allege that the Demographic\n\nand\n\nMission Statement groups were subject to OMA because they constituted meetings of the\nCommittee, but instead alleged that each group is itself a public body, an Assistant Attorney\nGeneral (AAG) in the Public Access Bureau followed up with the Township's attorney by e- mail.\nNoting that the Committee's May 3, 2023, minutes refer to the entities at issue as\nsubcommittees,\"\nand that subcommittees constitute public bodies subjcct to OMA, the AAG\nasked the Township's counsel to \" supplement the Committee's answer by explaining how these\nsubcommittees'\n\nwere formulated, how the members were appointed, and the nature of the\n\nfunctions performed by these entities.\" 6 On September 29, 2023, the Township's attorney\n\nprovided a supplemental response. On October 2, 2023,11M submitted a reply addressing both\nresponses by maintaining that the entities are public bodies which must comply with the Act.\n\n3 Township of Schaumburg DEI Committee, Meeting, May 3, 2023, Minutes 1.\n4E- mail\n\nto Public Servant (September 8, 2023).\n\nfrom\n\nSLetterfrom Thomas J.\nHal eran, Storino, Ramello & Durkin,\nPublic Access Bureau (September\n\n25,\n2023), at\n\nto Joshua Jones, Deputy Bureau Chief,\n\n2. 6E-\n\nmail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney\n\nDETERMINATION\n\nIn order that the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly\nand that their deliberations\n\nbe conducted openly.\"\n\n5 ILCS 120/ 1 (West 2022).\n\nSection 1. 02 of OMA (5 ILCS 120/ 1. 02 (West 2022))\n\ndefines a \" public body\" as:\n\nA] 11 legislative, executive, administrative or advisory bodies of\nthe State, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations,\n\nboards,\n\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies ofany ofthe foregoing including but not limited\nto committees and subcommittees which are supported in whole or\n\nin part by tax revenue, or which expend tax revenue, except the\nGeneral Assembly and committees or commissions thereof.\nEmphasis\n\nadded.)\n\nThus, OMA expressly includes \" subsidiary bodies * * *\n\nincluding but not limited to * * *\n\nsubcommittees which are supported in whole or in part by tax revenue, or which expend tax\nin the definition of \"public body.\" Illinois courts consider the following factors in\ndetermining whether an entity could be a \" subsidiary body\": (1) the extent to which the entity\nhas a legal existence independent of govemment resolution, (2) the degree of government control\nexerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of\nthe functions performed by the entity. Better Government Ass' n v. Illinois High School Assn,\nrevenue,\"\n\n2017 IL 121124, 411 26.\ndeterminative\ncontrol.\"\n\nIn that case, the Illinois Supreme Court explained that \" no single factor is\n\nor conclusive, but * * *\n\nthe key distinguishing factors are government creation and\n\nBetter Government Assn, 2017 IL 121124, ¶\n\n26.\n\nIn its answer to this office, the Township \"assert[ ed] that the Demographic Team\nand Mission Statement Team created to support the DEI Committee are not subsidiary bodies of\n\nthe DEI, even though such teams were initially listed as the Demographic Subcommittee Team\nand Mission Statement Subcommittee Team on the May 3, 2023 Meeting Agenda of the DEI\nCommittee.\" 7 The Township described the formation of the \" teams\" as follows:\nThe DEI Committee was established by ordinance on\nSeptember 28, 2022 and the first meeting of the DEI Committee\ntook place on January 4, 2023. As a new committee, the DEI\nsought to formulate a clear and concise mission statement.\n\nAdditionally, the DEI Committee determined that in order [ to] best\nserve the residents of the Township, it required an analysis of the\ndemographic data of such persons residing within the Township.\nIn order to accomplish these aforementioned goals, the DEI asked\n\nfor volunteers from among its committee members and also from\nnon -committee members. Thereafter, the Mission Statement Team\nand Demographic\n\nTeam was formed through such volunteers. The\n\nDEI Committee did not vote for or appoint such members of the\nMission Statement Team or the Demographic Team. Each team, or\nworking groups\", is comprised of four (4) members, which\ninclude committee members and non -committee volunteers.\n\nCertain individuals joined these teams based upon their area of\nexpertise in their occupation.\n\nFor example, a member of the\n\nDemographic Team is a data analyst that is proficient in analyzing\ndemographic data. [81\n\nThis office reviewed the minutes posted on the Committee's webpage9 in search\nof information about the formulation of the \" teams\" at issue, and found that during the\nCommittee's April 5, 2023, meeting, the following actions occurred during new business as the\nCommittee was discussing demographic data:\nb.\n\nMotion to create a subcommittee to work together to work on\n\nrecommendations to share out with the big team based on the\ndata reviewed this evening\ni.\n\nMotion\n\nii.\n\nFelipe, Larin, Kevin, Sophie. Larin will be the point\n\napproved\n\n6 aye's 0 nays\n\nperson.\nc.\n\nMotion to create a subcommittee to work on developing\ncommittee\n\nmission\n\nstatement\n\ni.\n\nMotion approves 6 aye's 0 nays\n\nii.\n\nSohal, Gennie, Felipe, Ayaanito]\n\n8 LetterfromThomasJ.\n\nHalleran,\n\nStorino, Ramcllo &\n\nDurkin, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau (September 29, 2023), at [ 1- 2].\n\nTherefore, despite the Township's assertions that the \" teams\" were established informally, the\nCommittee did in fact formally create Demographic and Mission Statement subcommittees and\nappears to have accepted if not appointed their members too. Further, the \" teams\" have no legal\nexistence independent\n\nof the Committee.\n\nAs to the functions\n\nand roles of the \" teams,\"\n\nthe Township asserted:\n\nThe Mission Statement Team is a project -based team that\nwas formed in order to formulate a clear and concise mission\n\nstatement for the DEI Committee by brain storming ideas in an\ninformal setting and providing such ideas or suggestions to the DEI\nCommittee. Once this project is complete, the Mission Statement\nTeam will no longer gather. The Demographic Team's function is\nto compile and analyze demographic data, in order to provide such\ninformation to the DEI Committee so that it may best serve the\nTownship's residents. This type of information compilation and\nanalysis is best completed outside of a formal DEI Committee\n\nmeeting setting due to the time required to compile and analyze\nsuch data. Both teams gather in an informal manner at a time and\nlocation that is determined by the team members not the DEI\nCommittee. These team gatherings do not take place at a regular\ndate or time and are not funded by the DEI Committee or the\nTownship. The purpose of both teams is to gather information and\nformulate ideas to support the DEI Committee, which can be more\n\neffectively done through a smaller informal team, or working\ngroup, such as the Mission Statement Team and Demographic\n\nTeam. Such information gathered or ideas presented to the DEI\nCommittee are reflected on the DEI Committee's agenda and in the\n\nDEI Committee's meeting minutes. lttl\nThe Township has acknowledged that the \" teams\" were created solely to support the public\nbusiness of the Committee and thereby serve the Township. The Township's attorney did not\ncite any case law or other legal authority supporting the claim that the \" teams\" are not public\nbodies. Although the Township's attorney stated that the Committee does not choose meeting\ntimes or locations\n\nfor the \" teams,\"\n\nthese entities report to the Committee, are expected to provide\n\nwork product to the Committee to advance its objectives, and serve at the pleasure of the\nCommittee. Additionally, although the Township's attorney asserted that the \" team gatherings\"\nare not funded by the Committee or the Township, the Township acknowledged that the\nCommittee is part of the Township government by ordinance. Moreover, the \" teams\" perform\n\nthe quintessential subcommittee role of studying and reporting back on specific issues within the\nCommittee's purview.\nAccordingly, regardless of whether the Township wishes to refer to them as\nworking groups\"\nsubcommittees\n\nor \" teams,\"\n\nare\n\nthis office concludes that the Demographic and Mission Statement\n\npublic bodies subject to the requirements\n\nof OMA.\n\nThis office requests that\n\nthe subcommittees conduct all future meetings in accordance with the provisions of OMA.\nAmong other things, the subcommittees should provide advance notice of their meetings (5 ILCS\n120/ 2. 02 (West 2022)), keep written minutes (5 ILCS 120/ 2, 06(a) (West 2022)), and provide\nmembers of the public with an opportunity to address subcommittee members (5 ILCS\n120/ 2. 06(g) (West 2022)). This office also requests that any subcommittee members who have\nnot already done so complete the OMA electronic training curriculum developed and\nadministered by the Public Access Counselor. See 5 ILCS 120/ 1. 05 (West 2022).\nThe Public Access Counselor\n\nhas determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Burcau\n\n78082 o vio mun\n\nOffice of the Illinois Attorney General"}
{"id":1438,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-03-15","case_number":null,"request_numbers":["78085","78204"],"title":"City of Harvey violated OMA by requiring proof of residency to attend public meeting","filename":"78085 78204, issued March 15, 2024.pdf","rel_path":null,"word_count":2764,"summary":"The PAC investigated allegations that the City of Harvey and the Metropolitan Water Reclamation District required proof of residency to attend a public meeting. The PAC determined the City of Harvey violated the Open Meetings Act by restricting access, while the District did not.","plain_summary":"A citizen complained that they were required to show ID and prove they lived in Harvey to attend a public meeting about a stormwater project. The Attorney General's office found that the City of Harvey acted improperly by restricting public access to the meeting. The Metropolitan Water Reclamation District, which was also involved in the meeting, was found not to have violated the law.","holding":"The City of Harvey violated the Open Meetings Act by requiring proof of residency to attend a public gathering, while the Metropolitan Water Reclamation District did not violate the Act.","legal_question":"Whether a public body violates the Open Meetings Act by requiring members of the public to provide proof of residency and identification to attend a public meeting.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Harvey City Council and Metropolitan Water Reclamation District of Greater Chicago","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting access","subject_description":"A public gathering regarding a stormwater management project where attendees were allegedly required to show proof of residency.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/78085 78204, issued March 15, 2024.pdf","sha256":"4c728e4d043eaa1f60b7c187af62703e3bc442b4dd6123f5dc7af94155ceca41","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public meeting","right to attend","Open Meetings Act","meeting access"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"March 15, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Molly A. Krebs\n\nAttorney for City of Harvey\nAncel Glink\n\n140 South Dearborn Street, Suite 600\nChicago, Illinois 60603\n\nmkrebs@ancelglink.com\nVia electronic mail\nMs. Susan T. Morakalis\n\nGeneral Counsel\nMetropolitan Water Reclamation District of Greater Chicago\n\n100 East Erie Street\nChicago, Illinois 60611\n\nmorakaliss@mwrd.org\nRE: OMA Request for Review – 2023 PAC 78085; 78204\nDear ,\n\nMs. Krebs, and Ms. Morakalis:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons explained below, the Public Access\n\nBureau concludes that the City of Harvey (City) City Council (Council) violated OMA in\nconnection with a gathering at Harvey City Hall on September 7, 2023. This office further\n\nconcludes that the Metropolitan Water Reclamation District of Greater Chicago (District) Board\nof Commissioners ( Board) did not violate OMA in connection with the same gathering.\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 2\nBACKGROUND\nOn September 8, 2023, this office received\n\nRequest for\n\nReview alleging that the Council and Board required members of the public to show proof of\nHarvey residency, including showing identification to armed officers, in order to attend a\n\ngathering held on September 7, 2023, to discuss an upcoming stormwater management project in\nthe City of Harvey ( City).\n\nRequest for Review included a partial video\n\nrecording of the gathering.\nOn September 19, 2023, this office forwarded copies of the Request for Review to\nthe Council and Board and asked each of them to provide this office with a written response\n\naddressing any requirements imposed on members of the public to attend the gathering, the\nreasons for any such requirements, whether any individuals were prohibited from attending, and\n\nwhether the Council and Board believed the September 7, 2023, gathering constituted a\nmeeting\" as defined in section 1.02 of OMA. 1 On October 3, 2023, and October 16, 2023, this\n\noffice received responses from the Council. On October 4, 2023, and October 20, 2023, this\noffice forwarded copies of the Council' s responses to .\n\nOn October 18, 2023, this\n\noffice received the Board's response. On October 20, 2023, this office forwarded a copy of the\nBoard' s response to .\n\nOn October 23, 2023,\n\nreplied to the responses\n\nby the Council and Board.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989). Section 2(a) of OMA2 provides that \"[ a] ll meetings of public bodies shall be\nopen to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nSection 2.01 of OMA3 further provides, in pertinent part: \" All meetings required by this Act to\nbe public shall be held at specified times and places which are convenient and open to the\npublic.\" Among other things, OMA also requires public bodies to provide advance notice of\n\nmeetings, permit an opportunity for public comment, and approve and maintain minutes.4\n\n15 ILCS 120/1.02 (West 2022).\n25 ILCS 120/2(a) ( West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n35 ILCS 120/2.01 (West 2022).\n45 ILCS 120/2.02, 2.06(a), 2.06(g) ( West 2022).\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 3\nBy way of background, in a letter addressed to City residents, the Mayor invited\n\nresidents to attend a \" Community Meeting\" on September 7, 2023, that would \"ensure that you\nhave all the necessary information and an opportunity to actively participate in this endeavor[.]\"\n\n5\n\nThe letter also provided information about the stormwater management project, noting that the\nDistrict would install a water basin in the City.\nIn their responses to\n\ndid not dispute\n\nRequest for Review, the Board and Council\n\ncontention that access to the September 7, 2023, gathering was\n\nlimited to individuals with identification demonstrating that they were Harvey residents. Instead,\n\nboth public bodies argued that the gathering was not a meeting subject to OMA.\nSection 1.02 of OMA defines a \" meeting\" as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means ( such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.] ( Emphasis added.)\nIf a gathering of public body members constitutes a \" meeting,\" then all the procedural safeguards\n\nand requirements of OMA apply, including providing access to members of the public regardless\nof where they reside.\nNeither the Council nor the Board disputed that a majority of a quorum of its\n\nmembers attended the September 7, 2023, gathering at Harvey City Hall. However, in their\nresponses to this office, they each contended that their members did not discuss among\n\nthemselves the public business of the City or the District, characterizing the event as intended to\nprovide information to residents affected by the imminent stormwater management project. In\n\nhis reply,\n\nexplained that residents and some members of the Harvey City Council\n\ndid not know what information was included in the ordinance the Council previously passed\n\nauthorizing the project, and that members of the Council were prohibited from sharing certain\ninformation with the public. Due to this lack of information,\n\nargued that the\n\nSeptember 7, 2023, gathering was a meeting subject to OMA, as it was \"the only time residents\n\n5Letter from Christopher J. Clark, Mayor, City of Harvey, to Residents of Harvey (September 1,\n2023).\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 4\nAND politicians could debate, discuss, and deliberate about the proposal to handle flooding and\n\nthe possibility of forcing residents from their homes.\" 6\nThe Office of the Attorney General has stated, \" whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\n\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 126. \"In theory, there\nis no absolute prohibition against the members of a public body attending an ' informational\n\nmeeting' without triggering the application of\" OMA, as long as the members do not make\nd] eliberational statements\" or engage in \" unrecorded discussions\" amongst themselves.\n\nIll.\n\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \" mere fact that a majority of a quorum of the members of a public body attend\n\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\n\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. ( Emphasis in original.) Ill. Att'y Gen. Op. No. 95- 004, at 10- 11; see also Nabhani v.\n\nCoglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for\npurposes of OMA when there is \" no examining or weighing of reasons for or against a course of\n\naction, no exchange of facts preliminary to a decision, [and] no attempt to reach accord on a\nspecific matter of public business.\").\nDiscussion by Members of the Board\nIn its response to this office, the Board noted that Commissioner Yumeka Brown\n\nprovided \"introductory remarks regarding the MWRD's role in the Project and stormwater\nmanagement in Cook County.\" 7 This office' s review of the recording provided by\n\nconfirmed that the remarks were limited in scope to providing the basis for MWRD staff to\nanswer questions from members of the public, including the background on both the Board and\n\nthe Council's actions leading to the project. Therefore, the remarks were merely informational\nrather than deliberational statements, and no other commissioner commented or weighed in right\n\nafter this introduction. The Board stated that the District's Engineer and Head Assistant Attorney\nalso made statements regarding the process underlying the project and the roles that both the\n\nCouncil and the Board played in approving the project.\n\n6E- mail from\nBureau] ( October 23, 2023).\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\n7Letter from Susan T. Morakalis, General Counsel, Metropolitan Water Reclamation District of\nGreater Chicago, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau ( October 18, 2023), at 4.\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 5\nAlthough not mentioned in the Board' s response, another member, the Board\n\nPresident, spoke about twenty minutes after Commissioner Brown made her introductory\nremarks. In addition to reassuring the audience that the Board and its staff were at the meeting to\n\nhear public concerns, she stated \" we are totally open to your suggestions and to hear what other\noptions are available.\" 8 She also suggested that if the public or City did not want this project, it\n\nwas a conversation that the Board could have. Although the Board argued to this office that it\nhad already undertaken its official actions relating to the project prior to the September 7, 2023,\n\ngathering, the President's remarks could be characterized as inviting a discussion on a future\ncourse of action for the Board. However, despite the Board President' s comments, there is no\n\nindication that the Board was actually considering reversing any of the official actions it had\npreviously taken with respect to the project, that an intent of the September 7, 2023, gathering\n\nwas for the Board members to collect or exchange facts for a potential future course of action, or\nthat any members of the Board responded to the Board President' s remarks or otherwise engaged\n\nin an interactive discussion of other options.\nUnder these circumstances, this office cannot conclude that this gathering, in\nwhich only two commissioners made limited remarks, constituted a \" meeting\" of the Board\n\nunder the definition in section 1.02 of OMA. However, this office urges the members of the\nBoard to use caution in future gatherings of a majority of a quorum to avoid potential violations.\nDiscussion by Members of the Council\nIn its first response to this office, the Council acknowledged that three aldermen\n\nmade comments, but argued that its members \" did not engage in the collective inquiry of\ndeliberations and exchange information in anticipation of possibly taking further action[,]\" 9\n\nciting Ill. Att’y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. The Council\ndescribed the members' participation as follows:\nCorean Davis, the City Administrator, attended the\n\nSeptember 7, 2023, gathering. Davis recalls the following City\nAldermen make comments: Alderwoman Shirley Drewenski,\n\nAlderwoman Colby Chapman, Alderman Tracy Key. Each\nAlderman expressed their familiarity with location subject to\n\nMWRD's water basin project and their hope that MWRD’ s project\nwill benefit the subject households from future flooding.\n\nAlderwoman Chapman made a comment regarding the location of\n8Video recording of September 7, 2023, gathering provided by ,\n\nat 31:55.\n\n9Letter from Molly A. Krebs, Ancel Glink, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau ( October 3, 2023), at 2.\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 6\nthe water basin project, and asked whether there are alternative\n\nlocation sites for the water basin.[10]\nIn the cited binding opinion, the Attorney General concluded that a gathering in\nwhich a majority of a quorum of a library board held a \" Meet and Greet\" where \" staff members\n\npresented questions and concerns about substantive library issues\" met the definition of a\nmeeting under OMA. 11 In that matter, the board contended that the gathering was an informal\n\ngathering intended to allow staff employees to get to know the trustees and to ask questions or\npresent concerns to the board. 12 Although there was no indication that the board attempted to\n\nreach an accord on any matters, the Attorney General noted that \"[ t]he requirements of OMA\napply not only to those gatherings in which public bodies take formal actions, but also to\n\ndiscussions of public business for the purpose of collecting information.\" 13 Because the trustees\nhad engaged in the collective inquiry phase of deliberations by gathering and exchanging\n\ninformation on issues of library business, the Attorney General determined that the board\nimproperly held a \" meeting\" without following OMA' s requirements. 14\nThis office' s review of the September 7, 2023, video recording found that at least\n\nfour members of the Council, including the Mayor,15 spoke during the meeting, discussing the\nhistory of the project and decades of flooding in the City. Because the Council had already voted\n\nto initiate the project, much of the discussion pertained to issues within the purview of only the\nMetropolitan Water Reclamation District staff about how to proceed with the project. Some of\n\nthis discussion also concerned whether alternative sites for the project had been explored.\nAdditionally, several comments from members referenced the continuing concerns of residents\n\nthroughout the City and the need for additional future projects. The members also briefly\ninteracted with each other at times, including the Mayor asking a member for confirmation\n\nregarding the history of the project.\n\n10Letter from Molly A. Krebs, Ancel Glink, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau ( October 16, 2023), at 1.\n11Ill. Att’ y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 6-7.\n12\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n\n13\n\nIll. Att’ y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7.\n\n14Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6-7.\n15Section 3.1-40-5 of the Illinois Municipal Code ( 65 ILCS 5/3.1-40-5 (West 2022)) stipulates that\nt]he city council shall consist of the mayor and alderpersons.\"\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 7\nAlthough the Council had already approved the stormwater project and the\n\nsubstantive work on the project was now in the hands of the District, the acquisition of properties\nand construction of a retention basin within the City under an agreement entered into by the\n\nCouncil still pertained to the public business of the Council. While the additional discussion of\nprospective projects did not implicate the immediate business of the Council, the definition of a\n\nmeeting under OMA does not include merely immediate business. Rather, the requirements of\nOMA extend to \" discussions of public business for the purpose of collecting information.\" 16 In\n\ncontrast to the two Board commissioners' limited remarks, the Mayor and alderpersons held an\ninteractive discussion in which the members commented on various project issues, questioned\n\nthe exploration of alternative sites, and contemplated future projects. When a public body\nengages in discussion to collect information concerning a current or even far distant project that\n\nis within its authority, it has engaged in the collective inquiry phase of deliberations regarding\npublic business. Therefore, this office concludes that the Council violated OMA by holding a\n\nmeeting on September 7, 2023, without following the procedural safeguards and requirements of\nOMA.\nIn accordance with the conclusions set forth above, this office requests that the\n\nCouncil, to the best of its ability, create and approve minutes for the meeting and make them\navailable for public inspection. Because the Council did not take any action at this meeting, no\n\nfurther remedial action is required. The Council should be mindful of the potential for\ngatherings of a majority of a quorum its members to constitute a meeting even if the gathering is\n\nnot for the purpose of taking final action.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me at benjamin.silver@ilag.gov or (773) 590-7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n78085 78204 o 102 proper improper mun spd\n\n16See Ill. Att’ y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7.\n\n\fMs. Molly A. Krebs\nMs. Susan T. Morakalis\n\nMarch 15, 2024\nPage 8\ncc:\n\nVia electronic mail\n\nThe Honorable Christopher J. Clark\nMayor\n\nCity of Harvey\n15320 Broadway Avenue\n\nHarvey, Illinois 60426\ncclark@cityofharveyil. gov\nVia electronic mail\n\nThe Honorable Kari K. Steele\nPresident\n\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\n\nChicago, Illinois 60611\nkari. steele@mwrd. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Proof-of-residency requirement for a public meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78085/","full_text":"March 15, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Molly A. Krebs\n\nAttorney for City of Harvey\nAncel Glink\n\n140 South Dearborn Street, Suite 600\nChicago, Illinois 60603\n\nmkrebs@ancelglink.com\nVia electronic mail\nMs. Susan T. Morakalis\n\nGeneral Counsel\nMetropolitan Water Reclamation District of Greater Chicago\n\n100 East Erie Street\nChicago, Illinois 60611\n\nmorakaliss@mwrd.org\nRE: OMA Request for Review – 2023 PAC 78085; 78204\nDear,\n\nMs. Krebs, and Ms. Morakalis:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons explained below, the Public Access\n\nBureau concludes that the City of Harvey (City) City Council (Council) violated OMA in\nconnection with a gathering at Harvey City Hall on September 7, 2023. This office further\n\nconcludes that the Metropolitan Water Reclamation District of Greater Chicago (District) Board\n\nBACKGROUND\nOn September 8, 2023, this office received\n\nRequest for\n\nReview alleging that the Council and Board required members of the public to show proof of\nHarvey residency, including showing identification to armed officers, in order to attend a\n\ngathering held on September 7, 2023, to discuss an upcoming stormwater management project in\nthe City of Harvey (City).\n\nRequest for Review included a partial video\n\nrecording of the gathering.\nOn September 19, 2023, this office forwarded copies of the Request for Review to\nthe Council and Board and asked each of them to provide this office with a written response\n\naddressing any requirements imposed on members of the public to attend the gathering, the\nreasons for any such requirements, whether any individuals were prohibited from attending, and\n\nwhether the Council and Board believed the September 7, 2023, gathering constituted a\nmeeting\" as defined in section 1.02 of OMA. 1 On October 3, 2023, and October 16, 2023, this\n\noffice received responses from the Council. On October 4, 2023, and October 20, 2023, this\noffice forwarded copies of the Council's responses to.\n\nOn October 18, 2023, this\n\noffice received the Board's response. On October 20, 2023, this office forwarded a copy of the\nBoard's response to.\n\nOn October 23, 2023,\n\nreplied to the responses\n\nby the Council and Board.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 2(a) of OMA2 provides that \"[ a] ll meetings of public bodies shall be\nopen to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nSection 2.01 of OMA3 further provides, in pertinent part: \" All meetings required by this Act to\nbe public shall be held at specified times and places which are convenient and open to the\npublic.\" Among other things, OMA also requires public bodies to provide advance notice of\n\nmeetings, permit an opportunity for public comment, and approve and maintain minutes.4\n\nBy way of background, in a letter addressed to City residents, the Mayor invited\n\nresidents to attend a \" Community Meeting\" on September 7, 2023, that would \"ensure that you\nhave all the necessary information and an opportunity to actively participate in this endeavor[.]\"\n\n5\n\nThe letter also provided information about the stormwater management project, noting that the\nDistrict would install a water basin in the City.\nIn their responses to\n\ndid not dispute\n\nRequest for Review, the Board and Council\n\ncontention that access to the September 7, 2023, gathering was\n\nlimited to individuals with identification demonstrating that they were Harvey residents. Instead,\n\nboth public bodies argued that the gathering was not a meeting subject to OMA.\nSection 1.02 of OMA defines a \" meeting\" as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\n\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\n\na majority of a quorum of the members of a public body held for\nthe purpose of discussing public business[.] (Emphasis added.)\nIf a gathering of public body members constitutes a \" meeting,\" then all the procedural safeguards\n\nand requirements of OMA apply, including providing access to members of the public regardless\nof where they reside.\nNeither the Council nor the Board disputed that a majority of a quorum of its\n\nmembers attended the September 7, 2023, gathering at Harvey City Hall. However, in their\nresponses to this office, they each contended that their members did not discuss among\n\nthemselves the public business of the City or the District, characterizing the event as intended to\nprovide information to residents affected by the imminent stormwater management project. In\n\nhis reply,\n\nexplained that residents and some members of the Harvey City Council\n\ndid not know what information was included in the ordinance the Council previously passed\n\nauthorizing the project, and that members of the Council were prohibited from sharing certain\ninformation with the public. Due to this lack of information,\n\nargued that the\n\nSeptember 7, 2023, gathering was a meeting subject to OMA, as it was \"the only time residents\n\n5 Letter from Christopher J. Clark, Mayor, City of Harvey, to Residents of Harvey (September 1,\n\nAND politicians could debate, discuss, and deliberate about the proposal to handle flooding and\n\nthe possibility of forcing residents from their homes.\" 6\nThe Office of the Attorney General has stated, \" whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\n\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 126. \"In theory, there\nis no absolute prohibition against the members of a public body attending an ' informational\n\nmeeting' without triggering the application of\" OMA, as long as the members do not make\nd] eliberational statements\" or engage in \" unrecorded discussions\" amongst themselves.\n\nIll.\n\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \" mere fact that a majority of a quorum of the members of a public body attend\n\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\n\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95- 004, at 10- 11; see also Nabhani v.\n\nCoglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for\npurposes of OMA when there is \" no examining or weighing of reasons for or against a course of\n\naction, no exchange of facts preliminary to a decision, [and] no attempt to reach accord on a\nspecific matter of public business.\").\nDiscussion by Members of the Board\nIn its response to this office, the Board noted that Commissioner Yumeka Brown\n\nprovided \"introductory remarks regarding the MWRD's role in the Project and stormwater\nmanagement in Cook County.\" 7 This office's review of the recording provided by\n\nconfirmed that the remarks were limited in scope to providing the basis for MWRD staff to\nanswer questions from members of the public, including the background on both the Board and\n\nthe Council's actions leading to the project. Therefore, the remarks were merely informational\nrather than deliberational statements, and no other commissioner commented or weighed in right\n\nafter this introduction. The Board stated that the District's Engineer and Head Assistant Attorney\nalso made statements regarding the process underlying the project and the roles that both the\n\nCouncil and the Board played in approving the project.\n\n6E- mail from\nBureau] (October 23, 2023).\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\n7 Letter from Susan T. Morakalis, General Counsel, Metropolitan Water Reclamation District of\nGreater Chicago, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (October 18, 2023), at 4.\n\nAlthough not mentioned in the Board's response, another member, the Board\n\nPresident, spoke about twenty minutes after Commissioner Brown made her introductory\nremarks. In addition to reassuring the audience that the Board and its staff were at the meeting to\n\nhear public concerns, she stated \" we are totally open to your suggestions and to hear what other\noptions are available.\" 8 She also suggested that if the public or City did not want this project, it\n\nwas a conversation that the Board could have. Although the Board argued to this office that it\nhad already undertaken its official actions relating to the project prior to the September 7, 2023,\n\ngathering, the President's remarks could be characterized as inviting a discussion on a future\ncourse of action for the Board. However, despite the Board President's comments, there is no\n\nindication that the Board was actually considering reversing any of the official actions it had\npreviously taken with respect to the project, that an intent of the September 7, 2023, gathering\n\nwas for the Board members to collect or exchange facts for a potential future course of action, or\nthat any members of the Board responded to the Board President's remarks or otherwise engaged\n\nin an interactive discussion of other options.\nUnder these circumstances, this office cannot conclude that this gathering, in\nwhich only two commissioners made limited remarks, constituted a \" meeting\" of the Board\n\nunder the definition in section 1.02 of OMA. However, this office urges the members of the\nBoard to use caution in future gatherings of a majority of a quorum to avoid potential violations.\nDiscussion by Members of the Council\nIn its first response to this office, the Council acknowledged that three aldermen\n\nmade comments, but argued that its members \" did not engage in the collective inquiry of\ndeliberations and exchange information in anticipation of possibly taking further action[,]\" 9\n\nciting Ill. Att’y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. The Council\ndescribed the members' participation as follows:\nCorean Davis, the City Administrator, attended the\n\nSeptember 7, 2023, gathering. Davis recalls the following City\nAldermen make comments: Alderwoman Shirley Drewenski,\n\nAlderwoman Colby Chapman, Alderman Tracy Key. Each\nAlderman expressed their familiarity with location subject to\n\nMWRD's water basin project and their hope that MWRD’ s project\nwill benefit the subject households from future flooding.\n\nAlderwoman Chapman made a comment regarding the location of\n8 Video recording of September 7, 2023, gathering provided by,\n\nat 31:55.\n\n9 Letter from Molly A. Krebs, Ancel Glink, to Benjamin J. Silver, Assistant Attorney General,\n\nthe water basin project, and asked whether there are alternative\n\nlocation sites for the water basin.[10]\nIn the cited binding opinion, the Attorney General concluded that a gathering in\nwhich a majority of a quorum of a library board held a \" Meet and Greet\" where \" staff members\n\npresented questions and concerns about substantive library issues\" met the definition of a\nmeeting under OMA. 11 In that matter, the board contended that the gathering was an informal\n\ngathering intended to allow staff employees to get to know the trustees and to ask questions or\npresent concerns to the board. 12 Although there was no indication that the board attempted to\n\nreach an accord on any matters, the Attorney General noted that \"[ t]he requirements of OMA\napply not only to those gatherings in which public bodies take formal actions, but also to\n\ndiscussions of public business for the purpose of collecting information.\" 13 Because the trustees\nhad engaged in the collective inquiry phase of deliberations by gathering and exchanging\n\ninformation on issues of library business, the Attorney General determined that the board\nimproperly held a \" meeting\" without following OMA's requirements. 14\nThis office's review of the September 7, 2023, video recording found that at least\n\nfour members of the Council, including the Mayor,15 spoke during the meeting, discussing the\nhistory of the project and decades of flooding in the City. Because the Council had already voted\n\nto initiate the project, much of the discussion pertained to issues within the purview of only the\nMetropolitan Water Reclamation District staff about how to proceed with the project. Some of\n\nthis discussion also concerned whether alternative sites for the project had been explored.\nAdditionally, several comments from members referenced the continuing concerns of residents\n\nthroughout the City and the need for additional future projects. The members also briefly\ninteracted with each other at times, including the Mayor asking a member for confirmation\n\nregarding the history of the project.\n\n10 Letter from Molly A. Krebs, Ancel Glink, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau (October 16, 2023), at 1.\n11 Ill. Att’ y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 6-7.\n12\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n\n13\n\nIll. Att’ y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7.\n\n14 Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6-7.\n15 Section 3.1-40-5 of the Illinois Municipal Code (65 ILCS 5/3.1-40-5 (West 2022)) stipulates that\n\nAlthough the Council had already approved the stormwater project and the\n\nsubstantive work on the project was now in the hands of the District, the acquisition of properties\nand construction of a retention basin within the City under an agreement entered into by the\n\nCouncil still pertained to the public business of the Council. While the additional discussion of\nprospective projects did not implicate the immediate business of the Council, the definition of a\n\nmeeting under OMA does not include merely immediate business. Rather, the requirements of\nOMA extend to \" discussions of public business for the purpose of collecting information.\" 16 In\n\ncontrast to the two Board commissioners' limited remarks, the Mayor and alderpersons held an\ninteractive discussion in which the members commented on various project issues, questioned\n\nthe exploration of alternative sites, and contemplated future projects. When a public body\nengages in discussion to collect information concerning a current or even far distant project that\n\nis within its authority, it has engaged in the collective inquiry phase of deliberations regarding\npublic business. Therefore, this office concludes that the Council violated OMA by holding a\n\nmeeting on September 7, 2023, without following the procedural safeguards and requirements of\nOMA.\nIn accordance with the conclusions set forth above, this office requests that the\n\nCouncil, to the best of its ability, create and approve minutes for the meeting and make them\navailable for public inspection. Because the Council did not take any action at this meeting, no\n\nfurther remedial action is required. The Council should be mindful of the potential for\ngatherings of a majority of a quorum its members to constitute a meeting even if the gathering is\n\nnot for the purpose of taking final action.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me at benjamin.silver@ilag.gov or (773) 590-7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\ncc:\n\nVia electronic mail\n\nThe Honorable Christopher J. Clark\nMayor\n\nCity of Harvey\n15320 Broadway Avenue\n\nHarvey, Illinois 60426\ncclark@cityofharveyil. gov\nVia electronic mail\n\nThe Honorable Kari K. Steele\nPresident\n\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\n\nChicago, Illinois 60611\nkari. steele@mwrd. org"}
{"id":1439,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-10-03","case_number":null,"request_numbers":["78138"],"title":"Morton SD 709 Board of Education did not violate OMA over crowded meeting and comments","filename":"78138, issued October 3, 2023.pdf","rel_path":null,"word_count":1503,"summary":"A requester alleged that the Morton Community Unit School District No. 709 Board of Education violated the Open Meetings Act by failing to address anti-LGBTQ+ comments during public comment and by holding a meeting in an overcrowded, standing-room-only space. The PAC determined that the allegations did not demonstrate a violation of OMA and closed the matter.","plain_summary":"A citizen complained that a school board meeting was overcrowded and that the board failed to stop offensive comments made by members of the public. The Attorney General's office reviewed the complaint and concluded that the board did not violate the Open Meetings Act. This means the PAC will not take any further action on this specific complaint.","holding":"The PAC determined that no further action is warranted because the allegations did not establish a violation of the Open Meetings Act.","legal_question":"Whether a public body violates the Open Meetings Act by failing to admonish speakers for offensive public comments or by holding a meeting in a crowded venue.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.01"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Morton Community Unit School District No. 709 Board of Education","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting conduct","subject_description":"The complaint concerned the conduct of public comment and the adequacy of the meeting venue for a school board meeting.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/78138, issued October 3, 2023.pdf","sha256":"c84f71536af1d8841ef8db70b96abe897c7e8b33888d6a04f528614d461692a0","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting location","school board","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 3, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 78138\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted with respect to your Request for\nReview alleging that the Morton Community Unit School District No. 709 ( District) Board of\nEducation ( Board) violated OMA on September 5, 2023.\nIn your Request for Review, you alleged that the Board violated OMA at its\nSeptember 5, 2023, meeting by allowing speakers to make anti- LGBTQ+ statements \" with no\napparent corrective action nor even admonishment by the school board[,]\" and by holding its\nmeeting in a standing room- only space. 1 Specifically, you alleged that you and other members\nof the LGBTQ+ were targeted with ad hominem attacks, which made you feel unsafe and caused\na child to experience a panic attack. You also alleged that \"[ t]his 'school administration' building\nis a 'converted' CHURCH, and we were crammed into [ its] basement with standing- room only.\"\nEmphasis in original.) 2 The Request for Review provided a link to a recording of the meeting.\nSection 2.01 of OMA: Meeting Location\nSection 1 of OMA (5 ILCS 120/ 1 et seq. ( West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\n1E- mail from\n\nto Public Access Counselor ( September 14, 2023).\n\n2E- mail from\n\nto Public Access Counselor ( September 14, 2023).\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fOctober 3, 2023\nPage 2\n\nor acted upon in any way.\" Section 2.01 of OMA ( 5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" \" By its plain terms, section 2.01 requires a venue that is\nnot only 'open,' but 'convenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill.\nApp. 3d 352, 359 ( 2003). Section 2.01 requires \" not 'absolute accessibility' but 'reasonable\naccessibility.'\" Gerwin, 345 Ill. App. 3d at 362 ( quoting State ex rel. Badke v. Village Board of\nVillage of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408, 418 ( Wis. 1993). In addressing\nthe meaning of \"convenient\" for purposes of section 2.01 of OMA, the Gerwin court stated that\na] meeting can be open in the sense that no one is prohibited from attending it, but it can be\nheld in such an ill-suited, unaccommodating, unadvantageous place that members of the public,\nas a practical matter, would be deterred from attending it.\" Gerwin, 345 Ill. App. 3d at 361.\nYou did not allege that the lack of seating or that the building being a converted\nchurch deterred you or any other individuals from attending the September 5, 2023, Board\nmeeting. Section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) West 2022)) provides that \"[ a] person who\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith the Public Access Counselor[,]\" and that the submission \" must include a summary of the\nfacts supporting the allegation.\" This office' s review of the video of the meeting at issue\nconfirmed that you attended and provided public comment. This office also observed that\nseveral seats in the front row remained open throughout the public comment portion of the\nmeeting. Without receiving facts suggesting that anyone who wished to attend the meeting was\nunreasonably restricted from doing so because of the meeting location and the lack of seating,\nthis office has no basis to conclude that the location of the September 5, 2023, Board meeting\nwas not sufficiently open and convenient as required by section 2.01 of OMA. Nevertheless,\nwhen preparing its meeting room environments, the Board may wish to consider additional\nseating to accommodate members of the public, particularly when the Board expects an increase\nin attendance due to the nature of the agenda items being considered.\nSection 2.06( g) of OMA: Public Comment\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" \" The primary purpose of adopting rules governing public\ncomment pursuant to section 2.06(g) of OMA is to accommodate the speaker' s statutory right to\naddress the public body, while ensuring that the public body can maintain order and decorum at\npublic meetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 6.\nAlthough OMA does not specifically address the types of public comment rules that a public\nbody may adopt, courts have clarified that, under the First Amendment to the U.S. Constitution,\npublic bodies may promulgate reasonable, content- neutral \" time, place, and manner\" restrictions\nthat are narrowly- tailored and serve a significant governmental interest. See I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 923 ( N.D. Ill. 2009). \" For example, a\n\n\fOctober 3, 2023\nPage 3\n\npublic body may legitimately prescribe reasonable time limits for public comment.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. In contrast, content- based\nrestrictions, which are \" those that target speech based on its communicative content[,]\" are\ngenerally prohibited. Reed v. Town of Gilbert, 576 U.S. 155, 163, 135 S. Ct. 2218, 2226 ( 2015).\nMoreover, courts have explained:\nThe government bears a particularly heavy burden in\njustifying viewpoint- based restrictions in designated public\nforums. Viewpoint discrimination is an egregious form of content\ndiscrimination. Content- based restrictions are subject to strict\nscrutiny. Viewpoint- based restrictions receive even more critical\njudicial treatment. Mesa v. White, 197 F.3d 1041, 1047 ( 10th Cir.\n1999) ( quoting Church on the Rock v. City of Albuquerque, 84\nF.3d 1273, 1279 ( 10th Cir. 1996)).\nIn other words, while a public body may put a stop to disruptive conduct— such as screaming\nobscenities— that interferes with the ability to proceed with a meeting in an orderly manner,\npublic bodies must be careful not to silence speakers based on their perspectives.\nYou expressed concern that \"[ i]t was emotionally traumatic to be subjected to\nhate speech [ a] nd targeted for anti- LGBTQ+ sentiments without any apparent attempt to remind\nthe audience as to their responsibility to uphold a safe space for public discourse.\" 3 There is no\nindication that the Board deliberately fostered an overly hostile environment or that any public\ncomment actually caused a disturbance that impeded Board business. Instead, this office' s\nreview of the video indicated that the Board attempted to preserve decorum when it reminded the\nmembers of the public in attendance to respect all speakers' comments and refrain from\ninterrupting them while they addressed the Board. 4 Further, there is no indication that any\nmember of the public was denied an opportunity to address the Board. While aspects of certain\ncomments may have been perceived as offensive to certain individuals attending the meeting, the\ncomments were not profane, threatening, or otherwise disruptive such that they interfered with\nthe proceedings or the ability of other individuals to exercise their statutory right to participate in\npublic comment. Because your submission does not provide facts suggesting that the Board\nviolated OMA on September 5, 2023, this office has determined that no further action is\nwarranted in this matter.\n3E- mail from\n\nto Public Access [ Counselor] ( September 14, 2023).\n\n4Morton Potter TV, Morton School Board Meeting ... September 5, 2023, YouTube at 36:26-36:36\nSeptember 26, 2023),\nhttps:// www. youtube. com/ watch? app= desktop& feature= shared& fbclid= IwAR0ZbJhVmHod_ OqT3bNCF3Y3_ clnB\nMOzpOBow04qQdXicZY0HhHM98QX4aemAdl4kkbhTxWY7W1mGdqGLtqVToC091XcAFdpORlppEfVjtKpN\nOUbGjfOvz1PZCbDKio& v=8NNyjv4ZMs4& mibextid= Zxz2cZ\n\n\fOctober 3, 2023\nPage 4\n\nThis letter serves to close this matter. If you have any questions, please contact\nme at matthew. goodman@ilag. gov or the Chicago address on the bottom of the first page of this\nletter.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n78138 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Tim Braker\nPresident, Board of Education\nMorton Community Unit School District No. 709\n1050 South Fourth Avenue\nMorton, Illinois 61550\ntimothy. braker@mcusd709. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's conduct of public comment and meeting venue","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78138/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 3, 2023\n\nVia electronic mail\n\nRE: OMA Request for Review – 2023 PAC 78138\nDear\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted with respect to your Request for\nReview alleging that the Morton Community Unit School District No. 709 (District) Board of\nEducation (Board) violated OMA on September 5, 2023.\nIn your Request for Review, you alleged that the Board violated OMA at its\nSeptember 5, 2023, meeting by allowing speakers to make anti- LGBTQ+ statements \" with no\napparent corrective action nor even admonishment by the school board[,]\" and by holding its\nmeeting in a standing room- only space. 1 Specifically, you alleged that you and other members\nof the LGBTQ+ were targeted with ad hominem attacks, which made you feel unsafe and caused\na child to experience a panic attack. You also alleged that \"[ t]his 'school administration' building\nis a 'converted' CHURCH, and we were crammed into [ its] basement with standing- room only.\"\nEmphasis in original.) 2 The Request for Review provided a link to a recording of the meeting.\nSection 2.01 of OMA: Meeting Location\nSection 1 of OMA (5 ILCS 120/ 1 et seq. (West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\n1E- mail from\n\nto Public Access Counselor (September 14, 2023).\n\n2E- mail from\n\nto Public Access Counselor (September 14, 2023).\n\nor acted upon in any way.\" Section 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\" \" By its plain terms, section 2.01 requires a venue that is\nnot only 'open,' but 'convenient,' to the public.\" Gerwin v. Livingston County Board, 345 Ill.\nApp. 3d 352, 359 (2003). Section 2.01 requires \" not 'absolute accessibility' but 'reasonable\naccessibility.'\" Gerwin, 345 Ill. App. 3d at 362 (quoting State ex rel. Badke v. Village Board of\nVillage of Greendale, 173 Wis. 2d 553, 579, 494 N.W.2d 408, 418 (Wis. 1993). In addressing\nthe meaning of \"convenient\" for purposes of section 2.01 of OMA, the Gerwin court stated that\na] meeting can be open in the sense that no one is prohibited from attending it, but it can be\nheld in such an ill-suited, unaccommodating, unadvantageous place that members of the public,\nas a practical matter, would be deterred from attending it.\" Gerwin, 345 Ill. App. 3d at 361.\nYou did not allege that the lack of seating or that the building being a converted\nchurch deterred you or any other individuals from attending the September 5, 2023, Board\nmeeting. Section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) West 2022)) provides that \"[ a] person who\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith the Public Access Counselor[,]\" and that the submission \" must include a summary of the\nfacts supporting the allegation.\" This office's review of the video of the meeting at issue\nconfirmed that you attended and provided public comment. This office also observed that\nseveral seats in the front row remained open throughout the public comment portion of the\nmeeting. Without receiving facts suggesting that anyone who wished to attend the meeting was\nunreasonably restricted from doing so because of the meeting location and the lack of seating,\nthis office has no basis to conclude that the location of the September 5, 2023, Board meeting\nwas not sufficiently open and convenient as required by section 2.01 of OMA. Nevertheless,\nwhen preparing its meeting room environments, the Board may wish to consider additional\nseating to accommodate members of the public, particularly when the Board expects an increase\nin attendance due to the nature of the agenda items being considered.\nSection 2.06(g) of OMA: Public Comment\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" \" The primary purpose of adopting rules governing public\ncomment pursuant to section 2.06(g) of OMA is to accommodate the speaker's statutory right to\naddress the public body, while ensuring that the public body can maintain order and decorum at\npublic meetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 6.\nAlthough OMA does not specifically address the types of public comment rules that a public\nbody may adopt, courts have clarified that, under the First Amendment to the U.S. Constitution,\npublic bodies may promulgate reasonable, content- neutral \" time, place, and manner\" restrictions\nthat are narrowly- tailored and serve a significant governmental interest. See I.A. Rana\nEnterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 923 (N.D. Ill. 2009). \" For example, a\n\npublic body may legitimately prescribe reasonable time limits for public comment.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. In contrast, content- based\nrestrictions, which are \" those that target speech based on its communicative content[,]\" are\ngenerally prohibited. Reed v. Town of Gilbert, 576 U.S. 155, 163, 135 S. Ct. 2218, 2226 (2015).\nMoreover, courts have explained:\nThe government bears a particularly heavy burden in\njustifying viewpoint- based restrictions in designated public\nforums. Viewpoint discrimination is an egregious form of content\ndiscrimination. Content- based restrictions are subject to strict\nscrutiny. Viewpoint- based restrictions receive even more critical\njudicial treatment. Mesa v. White, 197 F.3d 1041, 1047 (10th Cir.\n1999) (quoting Church on the Rock v. City of Albuquerque, 84\nF.3d 1273, 1279 (10th Cir. 1996)).\nIn other words, while a public body may put a stop to disruptive conduct— such as screaming\nobscenities— that interferes with the ability to proceed with a meeting in an orderly manner,\npublic bodies must be careful not to silence speakers based on their perspectives.\nYou expressed concern that \"[ i]t was emotionally traumatic to be subjected to\nhate speech [ a] nd targeted for anti- LGBTQ+ sentiments without any apparent attempt to remind\nthe audience as to their responsibility to uphold a safe space for public discourse.\" 3 There is no\nindication that the Board deliberately fostered an overly hostile environment or that any public\ncomment actually caused a disturbance that impeded Board business. Instead, this office's\nreview of the video indicated that the Board attempted to preserve decorum when it reminded the\nmembers of the public in attendance to respect all speakers' comments and refrain from\ninterrupting them while they addressed the Board. 4 Further, there is no indication that any\nmember of the public was denied an opportunity to address the Board. While aspects of certain\ncomments may have been perceived as offensive to certain individuals attending the meeting, the\ncomments were not profane, threatening, or otherwise disruptive such that they interfered with\nthe proceedings or the ability of other individuals to exercise their statutory right to participate in\npublic comment. Because your submission does not provide facts suggesting that the Board\nviolated OMA on September 5, 2023, this office has determined that no further action is\nwarranted in this matter.\n3E- mail from\n\nto Public Access [ Counselor] (September 14, 2023).\n\n4 Morton Potter TV, Morton School Board Meeting... September 5, 2023, YouTube at 36:26-36:36\nSeptember 26, 2023),\nhttps:// www. youtube. com/ watch? app= desktop& feature= shared& fbclid= IwAR0ZbJhVmHod_ OqT3bNCF3Y3_ clnB\n\nThis letter serves to close this matter. If you have any questions, please contact\nme at matthew. goodman@ilag. gov or the Chicago address on the bottom of the first page of this\nletter.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n78138 o no fi war sd\ncc:\n\nVia electronic mail\nThe Honorable Tim Braker\nPresident, Board of Education\nMorton Community Unit School District No. 709\n1050 South Fourth Avenue\nMorton, Illinois 61550\ntimothy. braker@mcusd709. org"}
{"id":1441,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-11-21","case_number":null,"request_numbers":["78458"],"title":"City of Chicago City Council did not violate OMA by amending meeting agenda less than 24 hours before meeting","filename":"78458, issued November 21, 2023.pdf","rel_path":null,"word_count":2781,"summary":"Alderman Raymond Lopez alleged that the Chicago City Council violated the Open Meetings Act by amending its meeting agenda less than 24 hours before the meeting to add an ordinance. The PAC determined that the City Council did not violate the Act.","plain_summary":"Alderman Lopez complained that the Chicago City Council improperly added an item to a meeting agenda less than 24 hours before the meeting took place. The Attorney General's office reviewed the complaint and found that the City Council's actions were consistent with the Open Meetings Act. This means the City Council was permitted to proceed with the agenda item as handled.","holding":"The PAC concluded that the City of Chicago City Council did not violate the Open Meetings Act in connection with its October 4, 2023, meeting.","legal_question":"Whether the Chicago City Council violated the Open Meetings Act by amending its meeting agenda less than 24 hours prior to the meeting to include an item that was inadvertently omitted from the original posting.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Chicago City Council","requesting_party":"Alderman Raymond Lopez","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerned the legality of adding an agenda item to a City Council meeting less than 24 hours before the meeting occurred.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/78458, issued November 21, 2023.pdf","sha256":"295bfed3f3a0cb2a8e0ec95f6fc4583aebe14051c795e53c82df6e16b8b38ad2","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","city council","notice requirements","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\nThe Honorable Raymond Lopez\nAlderman – 15th Ward\nmailto:Raymond.lop\nRaymond. lopez@cityofchicago. org\nez@city\nVia electronic mail\nMr. Jeff Levine\nDeputy Corporation Counsel\nDepartment of Law\nCity of Chicago\n[street address redacted for site publication -- see original PDF]\njeffrey. levine@cityofchicago. org\nRE: OMA Request for Review – 2023 PAC 78458\nDear Alderman Lopez and Mr. Levine:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2020)). For the reasons stated below, this office concludes\nthat the City of Chicago City Council ( City Council) did not violate OMA in connection with its\nOctober 4, 2023, meeting.\nOn October 5, 2023, Alderman Raymond Lopez submitted a Request for Review\non behalf of himself and ten other members of the City Council alleging that the City Council\nviolated OMA. Specifically, the Request for Review alleged that the City Council changed the\nagenda of its October 4, 2023, meeting less than 24 hours before the meeting commenced to add\nan agenda item concerning the One Fair Wage ordinance which had been inadvertently omitted\nfrom the original agenda that was posted 48 hours before the meeting. The Request for Review\nalso alleged that the City Council improperly took action on that agenda item by moving ahead\nwith a motion to defer and publish the ordinance and scheduling an October 6, 2023, meeting to\napprove the ordinance.\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fAlderman Raymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 2\n\nOn October 13, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the City's Department of Law and requested copies of the original agenda of the\nOctober 4, 2023, meeting and any amended or altered version of the agenda along with any\nminutes and recording of the open session portion of the meeting. This office also requested a\nwritten response specifying when and where the original agenda and any amended or altered\nversion of the agenda were posted. In addition, we requested a description of any discussions,\ndeliberations, votes, or motions concerning the One Fair Wage ordinance and an explanation of\nwhether any actions that were taken on the ordinance at the October 4, 2023, meeting constituted\nfinal action\" for purposes of OMA. On October 20, 2023, the Department of Law provided the\nrequested materials on behalf of the City Council. On October 23, 2023, this office forwarded\nthe written response to the members of the City Council who filed the Request for Review; we\ndid not receive replies.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 1989).\nSection 2.02(a) of OMA (5 ILCS 120/ 2.02(a) ( West 2022)) provides, in pertinent\npart:\nAn agenda for each regular meeting shall be posted at the\nprincipal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding of\nthe meeting. A public body that has a website that the full-time\nstaff of the public body maintains shall also post on its website the\nagenda of any regular meetings of the governing body of that\npublic body. Any agenda of a regular meeting that is posted on a\npublic body's website shall remain posted on the website until the\nregular meeting is concluded. The requirement of a regular\nmeeting agenda shall not preclude the consideration of items not\nspecifically set forth in the agenda. ( Emphasis added.)\nSection 2.02(c) of OMA ( 5 ILCS 120/ 2.02(c) (West 2022)) further provides:\n\n\fAlderman Raymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 3\n\nThe public body conducting a public meeting shall ensure\nthat at least one copy of any requested notice and agenda for the\nmeeting is continuously available for public review during the\nentire 48-hour period preceding the meeting. Any agenda required\nunder this Section shall set forth the general subject matter of\nany resolution or ordinance that will be the subject of final\naction at the meeting. The public body conducting a public\nmeeting shall ensure that at least one copy of any requested notice\nand agenda for the meeting is continuously available for public\nreview during the entire 48-hour period preceding the meeting. \"\nEmphasis added.)\nThe plain language of section 2.02(a) of OMA does \" not preclude the consideration of items not\nspecifically set forth in the agenda[ ]\" for a regular meeting. In other words, a public body may\ndiscuss–– but not take final action–– on topics that are not listed on a regular meeting agenda. 1\nRice v. Board of Trustees of Adams County, 326 Ill. App. 3d 1120, 1123 ( 2002) (\" We find 'the\nconsideration of' items not specifically set forth in the agenda to be in the nature of deliberations\nand discussion and not actions taken.\"). Because OMA permits discussion of topics that do not\nappear on regular meeting agendas, the Attorney General has issued a binding opinion\nconcluding that a public body may revise a regular meeting agenda less than 48 hours before a\nmeeting so long as the public body does not take final action on any matter that had not been\nproperly noticed on the agenda for at least 48 hours. Ill. Att'y Gen. Pub. Acc. Op. No. 14-003,\nissued May 5, 2014, at 4-5 (public body did not violate OMA by deleting items and re-posting\nagenda less than 48 hours before meeting because it did not take final action on the deleted\nitems).\nThe City Council attached to its October 4, 2023, meeting agenda various\ncommittee agendas and reports and incorporated them by reference by stating on the agenda that\nt]he committee agendas/ reports posted on the Chicago City Council Calendar list the items that\nmay be called for a vote at the City Council meeting and are considered to be part of the City\nCouncil meeting agenda.\" 2 The City Council' s response to this office stated that the October 4,\n2023, meeting agenda was posted more than 48 hours before the meeting, but staff subsequently\ndetermined that the Committee on Workforce Development report that listed the One Fair Wage\n\n1Because the plain language of section 2.02(a) of OMA only authorizes consideration of items not\nset forth on a regular meeting agenda, a public body violates OMA by discussing matters during a special meeting\nwhich are not listed on the agenda. E.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 30368, issued December 17, 2014, at 4.\n2Chicago City Council, Regular Meeting Agenda ( October 4, 2023).\n\n\fAlderman Raymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 4\n\nordinance \" had been inadvertently omitted from the agenda[.]\" 3 The response also stated that\nthis report was posted on October 3, 2023, \" as a separate document entitled ' Amendment to\nAgenda.' The Department of Law acknowledges that this amendment to the agenda was not\ntimely posted for purposes of enabling final action on the ordinance pursuant to section 2.02(c)\nof OMA.\" 4 In order to allow time to provide sufficient advance notice before the City Council\nacted on the ordinance at its October 6, 2023, meeting, the City Council' s response stated, the\nchairman of the Workforce Development Committee along with two other members of the City\ndeferred action on the ordinance pursuant to a provision of the Municipal Code5 that provides:\nUpon the request of any 2 alderpersons present, any report of a committee of the council shall\nbe deferred for final action to the next regular meeting of the council after the report is made.\"\nAccording to the City Council, \" what occurred at the Oct 4 City Council meeting, far from\nviolating OMA, was a textbook example of compliance with OMA, in that an item which had not\nbeen publicly posted for the full 48 hours was simply deferred to a subsequent meeting.\" 6\nThis office' s review of a video of the meeting 7 is consistent with the description in\nthe City Council' s response. The Mayor agreed to allow an alderman to present the Workforce\nDevelopment Committee' s report concerning the One Fair Wage ordinance, with the intent that it\nbe deferred and published for action at the next meeting. Another alderman objected because the\nitem was added to the agenda less than 48 hours before the meeting. The Mayor stated that a\nCity Council rule authorized him to exercise discretion to permit the report to be presented,\nsubject to appeal. After the City Council voted to deny the appeal and uphold the Mayor' s\ndecision, the report was presented and deferred and published. Following that vote, a member of\nthe City Council made a motion to hold an October 6, 2023, meeting to consider the One Fair\nWage ordinance. Aldermen again argued that action concerning the One Fair Ordinance was not\npermitted pursuant to OMA, as well as City Council rules, because it did not appear on the\nagenda posted more than 48 hours before the October 4, 2023, meeting. An alderman stated:\nParliamentary procedure is sacred. * * *. My concern here is that using parliamentary\n3Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General ( October 20, 2023), at 1.\n4Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General ( October 20, 2023), at 1.\n565 ILCS 5/3.1-40-35 (West 2022).\n6Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General ( October 20, 2023), at 2.\n7City of Chicago City Council, October 4, 2023, Regular Meeting, Vimeo ( October 4, 2023)\nhttps:// vimeo. com/ 870787030 ( 23:25- 49: 48).\n\n\fAlderman Raymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 5\n\nprocedure to contort our rules to serve the pleasure of the day is a dangerous precedent for us.\" 8\nAfter a motion to table the motion failed, the City Council approved scheduling a meeting for\nOctober 6, 2023; the City Council voted to approve the ordinance at that meeting. 9\nIt is undisputed that the City Council altered the agenda of its October 4, 2023,\nmeeting less than 48 hours before the meeting commenced by posting an amendment to the\nagenda containing the general subject matter of the One Fair Wage ordinance. Therefore, our\ndetermination in this matter hinges on whether the City Council violated section 2.02 of OMA by\ntaking \" final action\" on the One Fair Wage ordinance at its October 4, 2023, meeting without\nproviding advance notice on the original agenda that was continuously posted more than 48\nhours before the meeting.\nIn Gosnell, 179 Ill. App. 3d at 176, the plaintiff alleged that a school board\nimpermissibly took final action in closed session by making a request for mediation as an\nalternative to the negotiations it had been conducting with the secretaries' union. The Illinois\nAppellate Court rejected that allegation, holding that the school board took only an intermediate\nstep toward resolving the dispute:\nT]he request for mediation was part of the process of reaching a\nfinal action with the secretaries union. Mediation, similar to\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \" unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\nIn accordance with that reasoning, this office has consistently determined that a component of a\npublic body's process of reaching final action generally does not, itself, constitute final action for\npurposes of OMA. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 52804, issued July 31, 2018, at 5\nby reaching a consensus on jurisdictional issues concerning the scope of public body's review of\na complaint, public body took an intermediate step in the process of resolving the complaint,\nrather than final action on the complaint); Ill. Att'y Gen. PAC Req. Rev. Ltr. 43111, issued\nAugust 4, 2016, at 3 (vote to reconsider whether to award a contract to the low qualified bidder\n8City of Chicago City Council, October 4, 2023, Regular Meeting, Vimeo ( October 4, 2023)\nhttps:// vimeo. com/870787030 ( 41:40-41:56).\n9Alice Yin, Chicago becomes largest US city to independently abolish subminimum wage for\ntipped workers, CHICAGO TRIBUNE ( Oct. 6, 2023, 1:46 p.m.), https:// www. chicagotribune. com/ politics/ ctchicago- council- votes- eliminate- lower- tipped- minimum- wage- 20231006- xg5vpkqcxnfqhe5fqogxrpbcua- story. html\n\n\fRaymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 6\n\nwas not final action because it \"did not resolve the matter–– final action on whether to in fact\naward the contract was held over until the next meeting.\").\nThe City Council took two votes related to the One Fair Wage Ordinance at its\nOctober 4, 2023, meeting: ( 1) Upholding the Mayor' s exercise of discretion, pursuant to a City\nCouncil rule, to permit the presentation of the Workforce Development Committee' s report\nconcerning the ordinance; and ( 2) approving a motion to hold a special meeting on October 6,\n2023, to take action on the ordinance. These were intermediate steps in a process that\nculminated with the approval of the One Fair Wage ordinance at the October 6, 2023, meeting.\nThe votes taken at the October 4, 2023, meeting did not bring the proposed ordinance to a\nresolution and, therefore, they were not forms of \"final action\" for purposes of OMA. Because\nthe City Council was required to include only final action items on the agenda that was\ncontinuously posted at least 48 hours before the meeting commenced, this office concludes that\nthe City Council did not violate section 2.02 of OMA.\nWith respect to parliamentary procedure and City Council rules, the Public\nAccess Counselor' s authority is limited to reviewing alleged violations of OMA and the Freedom\nof Information Act. 10 15 ILCS 205/ 7 (West 2022). This office does not have jurisdiction to\nreview whether the Council complied with its own rules and parliamentary procedure.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814-6756 or mailto:steven.silverman\nsteven. silverman@ilag. gov. This file is closed.\n@ilag.gov\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n78458 o 202 notice proper mun\n\n105 ILCS 140/1 et seq. ( West 2020).\n\n\fAlderman Raymond Lopez\nMr. Jeffrey Levine\nNovember 21, 2023\nPage 7\n\ncc:\n\nVia electronic mail\nThe Honorable Brian Hopkins\nAlderman – 2nd Ward\nBrian. hopkins@cityofchicago. org\n\ncc:\n\nVia electronic mail\nThe Honorable Scott Waguespack\nAlderman – 33rd Ward\nmailto:scott.waguesp\nscott. waguespack@cityofchicago. org\nack@city\nVia electronic mail\nThe Honorable Anthony Napolitano\nAlderman – 41st Ward\nmailto:anthony.napolita\nanthony. napolitano@cityofchicago. org\nno@city\nVia electronic mail\nThe Honorable Silvana Tabares\nAlderman – 23rd Ward\nmailto:silvana.tabar\nsilvana. tabares@cityofchicago. org\nes@city\n\nVia electronic mail\nThe Honorable Peter Chico\nAlderman – 10th Ward\nmailto:peter.chico@cityofchi\npeter. chico@cityofchicago. org\ncago.org\nVia electronic mail\nThe Honorable Nicholas Sposato\nAlderman – 38th Ward\nmailto:nicholas.sposato@cityofch\nnicholas. sposato@cityofchicago. org\nicago.org\nVia electronic mail\nThe Honorable Derrick Curtis\nAlderman – 18th Ward\nmailto:derrick.curtis@cityofchi\nderrick. curtis@cityofchicago. org\ncago.org\nVia electronic mail\nThe Honorable Marty Quinn\nAlderman – 13th Ward\nmailto:marty.quinn@cityofchi\nmarty. quinn@cityofchicago. org\ncago.org\n\nVia electronic mail\nThe Honorable Brendan Reilly\nAlderman – 42nd Ward\nmailto:brendan.reilly@cityofchi\nbrendan. reilly@cityofchicago. org\ncago.org\n\nVia electronic mail\nThe Honorable Anthony Beale\nAlderman – 9th Ward\nmailto:anthony.be\nanthony. beale@cityofchicago. org\nale@city\n\ncc:\n\ncc:\n\ncc:\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Adding an agenda item less than 24 hours before a meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78458/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\nThe Honorable Raymond Lopez\nAlderman – 15th Ward\nmailto:Raymond.lop\nRaymond. lopez@cityofchicago. org\nez@city\nVia electronic mail\nMr. Jeff Levine\nDeputy Corporation Counsel\nDepartment of Law\nCity of Chicago\n[street address redacted for site publication -- see original PDF]\njeffrey. levine@cityofchicago. org\nRE: OMA Request for Review – 2023 PAC 78458\nDear Alderman Lopez and Mr. Levine:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2020)). For the reasons stated below, this office concludes\nthat the City of Chicago City Council (City Council) did not violate OMA in connection with its\nOctober 4, 2023, meeting.\nOn October 5, 2023, Alderman Raymond Lopez submitted a Request for Review\non behalf of himself and ten other members of the City Council alleging that the City Council\nviolated OMA. Specifically, the Request for Review alleged that the City Council changed the\nagenda of its October 4, 2023, meeting less than 24 hours before the meeting commenced to add\nan agenda item concerning the One Fair Wage ordinance which had been inadvertently omitted\nfrom the original agenda that was posted 48 hours before the meeting. The Request for Review\nalso alleged that the City Council improperly took action on that agenda item by moving ahead\nwith a motion to defer and publish the ordinance and scheduling an October 6, 2023, meeting to\napprove the ordinance.\n\nOn October 13, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the City's Department of Law and requested copies of the original agenda of the\nOctober 4, 2023, meeting and any amended or altered version of the agenda along with any\nminutes and recording of the open session portion of the meeting. This office also requested a\nwritten response specifying when and where the original agenda and any amended or altered\nversion of the agenda were posted. In addition, we requested a description of any discussions,\ndeliberations, votes, or motions concerning the One Fair Wage ordinance and an explanation of\nwhether any actions that were taken on the ordinance at the October 4, 2023, meeting constituted\nfinal action\" for purposes of OMA. On October 20, 2023, the Department of Law provided the\nrequested materials on behalf of the City Council. On October 23, 2023, this office forwarded\nthe written response to the members of the City Council who filed the Request for Review; we\ndid not receive replies.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2020). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSection 2.02(a) of OMA (5 ILCS 120/ 2.02(a) (West 2022)) provides, in pertinent\npart:\nAn agenda for each regular meeting shall be posted at the\nprincipal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding of\nthe meeting. A public body that has a website that the full-time\nstaff of the public body maintains shall also post on its website the\nagenda of any regular meetings of the governing body of that\npublic body. Any agenda of a regular meeting that is posted on a\npublic body's website shall remain posted on the website until the\n\nThe public body conducting a public meeting shall ensure\nthat at least one copy of any requested notice and agenda for the\nmeeting is continuously available for public review during the\nentire 48-hour period preceding the meeting. Any agenda required\nunder this Section shall set forth the general subject matter of\nany resolution or ordinance that will be the subject of final\naction at the meeting. The public body conducting a public\nmeeting shall ensure that at least one copy of any requested notice\nand agenda for the meeting is continuously available for public\nreview during the entire 48-hour period preceding the meeting. \"\nEmphasis added.)\nThe plain language of section 2.02(a) of OMA does \" not preclude the consideration of items not\nspecifically set forth in the agenda[ ]\" for a regular meeting. In other words, a public body may\ndiscuss–– but not take final action–– on topics that are not listed on a regular meeting agenda. 1\nRice v. Board of Trustees of Adams County, 326 Ill. App. 3d 1120, 1123 (2002) (\" We find 'the\nconsideration of' items not specifically set forth in the agenda to be in the nature of deliberations\nand discussion and not actions taken.\"). Because OMA permits discussion of topics that do not\nappear on regular meeting agendas, the Attorney General has issued a binding opinion\nconcluding that a public body may revise a regular meeting agenda less than 48 hours before a\nmeeting so long as the public body does not take final action on any matter that had not been\nproperly noticed on the agenda for at least 48 hours. Ill. Att'y Gen. Pub. Acc. Op. No. 14-003,\nissued May 5, 2014, at 4-5 (public body did not violate OMA by deleting items and re-posting\nagenda less than 48 hours before meeting because it did not take final action on the deleted\nitems).\nThe City Council attached to its October 4, 2023, meeting agenda various\ncommittee agendas and reports and incorporated them by reference by stating on the agenda that\nt]he committee agendas/ reports posted on the Chicago City Council Calendar list the items that\nmay be called for a vote at the City Council meeting and are considered to be part of the City\nCouncil meeting agenda.\" 2 The City Council's response to this office stated that the October 4,\n2023, meeting agenda was posted more than 48 hours before the meeting, but staff subsequently\ndetermined that the Committee on Workforce Development report that listed the One Fair Wage\n\n1 Because the plain language of section 2.02(a) of OMA only authorizes consideration of items not\nset forth on a regular meeting agenda, a public body violates OMA by discussing matters during a special meeting\nwhich are not listed on the agenda. E.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 30368, issued December 17, 2014, at 4.\n\nordinance \" had been inadvertently omitted from the agenda[.]\" 3 The response also stated that\nthis report was posted on October 3, 2023, \" as a separate document entitled ' Amendment to\nAgenda.' The Department of Law acknowledges that this amendment to the agenda was not\ntimely posted for purposes of enabling final action on the ordinance pursuant to section 2.02(c)\nof OMA.\" 4 In order to allow time to provide sufficient advance notice before the City Council\nacted on the ordinance at its October 6, 2023, meeting, the City Council's response stated, the\nchairman of the Workforce Development Committee along with two other members of the City\ndeferred action on the ordinance pursuant to a provision of the Municipal Code5 that provides:\nUpon the request of any 2 alderpersons present, any report of a committee of the council shall\nbe deferred for final action to the next regular meeting of the council after the report is made.\"\nAccording to the City Council, \" what occurred at the Oct 4 City Council meeting, far from\nviolating OMA, was a textbook example of compliance with OMA, in that an item which had not\nbeen publicly posted for the full 48 hours was simply deferred to a subsequent meeting.\" 6\nThis office's review of a video of the meeting 7 is consistent with the description in\nthe City Council's response. The Mayor agreed to allow an alderman to present the Workforce\nDevelopment Committee's report concerning the One Fair Wage ordinance, with the intent that it\nbe deferred and published for action at the next meeting. Another alderman objected because the\nitem was added to the agenda less than 48 hours before the meeting. The Mayor stated that a\nCity Council rule authorized him to exercise discretion to permit the report to be presented,\nsubject to appeal. After the City Council voted to deny the appeal and uphold the Mayor's\ndecision, the report was presented and deferred and published. Following that vote, a member of\nthe City Council made a motion to hold an October 6, 2023, meeting to consider the One Fair\nWage ordinance. Aldermen again argued that action concerning the One Fair Ordinance was not\npermitted pursuant to OMA, as well as City Council rules, because it did not appear on the\nagenda posted more than 48 hours before the October 4, 2023, meeting. An alderman stated:\nParliamentary procedure is sacred. * * *. My concern here is that using parliamentary\n3 Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (October 20, 2023), at 1.\n4 Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (October 20, 2023), at 1.\n565 ILCS 5/3.1-40-35 (West 2022).\n6 Letter from Jeff Levine, Deputy Corporation Counsel, Department of Law, City of Chicago, to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (October 20, 2023), at 2.\n\nprocedure to contort our rules to serve the pleasure of the day is a dangerous precedent for us.\" 8\nAfter a motion to table the motion failed, the City Council approved scheduling a meeting for\nOctober 6, 2023; the City Council voted to approve the ordinance at that meeting. 9\nIt is undisputed that the City Council altered the agenda of its October 4, 2023,\nmeeting less than 48 hours before the meeting commenced by posting an amendment to the\nagenda containing the general subject matter of the One Fair Wage ordinance. Therefore, our\ndetermination in this matter hinges on whether the City Council violated section 2.02 of OMA by\ntaking \" final action\" on the One Fair Wage ordinance at its October 4, 2023, meeting without\nproviding advance notice on the original agenda that was continuously posted more than 48\nhours before the meeting.\nIn Gosnell, 179 Ill. App. 3d at 176, the plaintiff alleged that a school board\nimpermissibly took final action in closed session by making a request for mediation as an\nalternative to the negotiations it had been conducting with the secretaries' union. The Illinois\nAppellate Court rejected that allegation, holding that the school board took only an intermediate\nstep toward resolving the dispute:\nT]he request for mediation was part of the process of reaching a\nfinal action with the secretaries union. Mediation, similar to\nnegotiating, is not an end in itself, but rather, a means to an end.\nNegotiations and mediations are made up of many \" unilateral\"\ndecisions, such as what to offer or counteroffer, and to hold that\neach of the unilateral strategical decisions that make up the\nconstituent parts of a negotiation is in and of itself a final action is\nunreasonable. Gosnell, 179 Ill. App. 3d at 176.\nIn accordance with that reasoning, this office has consistently determined that a component of a\npublic body's process of reaching final action generally does not, itself, constitute final action for\npurposes of OMA. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 52804, issued July 31, 2018, at 5\nby reaching a consensus on jurisdictional issues concerning the scope of public body's review of\na complaint, public body took an intermediate step in the process of resolving the complaint,\nrather than final action on the complaint); Ill. Att'y Gen. PAC Req. Rev. Ltr. 43111, issued\nAugust 4, 2016, at 3 (vote to reconsider whether to award a contract to the low qualified bidder\n8 City of Chicago City Council, October 4, 2023, Regular Meeting, Vimeo (October 4, 2023)\nhttps:// vimeo. com/870787030 (41:40-41:56).\n9 Alice Yin, Chicago becomes largest US city to independently abolish subminimum wage for\ntipped workers, CHICAGO TRIBUNE (Oct. 6, 2023, 1:46 p.m.), https:// www. chicagotribune. com/ politics/ ctchicago- council- votes- eliminate- lower- tipped- minimum- wage- 20231006- xg5vpkqcxnfqhe5fqogxrpbcua- story. html\n\nwas not final action because it \"did not resolve the matter–– final action on whether to in fact\naward the contract was held over until the next meeting.\").\nThe City Council took two votes related to the One Fair Wage Ordinance at its\nOctober 4, 2023, meeting: (1) Upholding the Mayor's exercise of discretion, pursuant to a City\nCouncil rule, to permit the presentation of the Workforce Development Committee's report\nconcerning the ordinance; and (2) approving a motion to hold a special meeting on October 6,\n2023, to take action on the ordinance. These were intermediate steps in a process that\nculminated with the approval of the One Fair Wage ordinance at the October 6, 2023, meeting.\nThe votes taken at the October 4, 2023, meeting did not bring the proposed ordinance to a\nresolution and, therefore, they were not forms of \"final action\" for purposes of OMA. Because\nthe City Council was required to include only final action items on the agenda that was\ncontinuously posted at least 48 hours before the meeting commenced, this office concludes that\nthe City Council did not violate section 2.02 of OMA.\nWith respect to parliamentary procedure and City Council rules, the Public\nAccess Counselor's authority is limited to reviewing alleged violations of OMA and the Freedom\nof Information Act. 10 15 ILCS 205/ 7 (West 2022). This office does not have jurisdiction to\nreview whether the Council complied with its own rules and parliamentary procedure.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814-6756 or mailto:steven.silverman\nsteven. silverman@ilag. gov. This file is closed.\n@ilag.gov\nVery truly yours,\n\nSTEVE SILVERMAN\n\ncc:\n\nVia electronic mail\nThe Honorable Brian Hopkins\nAlderman – 2nd Ward\nBrian. hopkins@cityofchicago. org\n\ncc:\n\nVia electronic mail\nThe Honorable Scott Waguespack\nAlderman – 33rd Ward\nmailto:scott.waguesp\nscott. waguespack@cityofchicago. org\nack@city\nVia electronic mail\nThe Honorable Anthony Napolitano\nAlderman – 41st Ward\nmailto:anthony.napolita\nanthony. napolitano@cityofchicago. org\nno@city\nVia electronic mail\nThe Honorable Silvana Tabares\nAlderman – 23rd Ward\nmailto:silvana.tabar\nsilvana. tabares@cityofchicago. org\nes@city\n\nVia electronic mail\nThe Honorable Peter Chico\nAlderman – 10th Ward\nmailto:peter.chico@cityofchi\npeter. chico@cityofchicago. org\ncago.org\nVia electronic mail\nThe Honorable Nicholas Sposato\nAlderman – 38th Ward\nmailto:nicholas.sposato@cityofch\nnicholas. sposato@cityofchicago. org\nicago.org\nVia electronic mail\nThe Honorable Derrick Curtis\nAlderman – 18th Ward\nmailto:derrick.curtis@cityofchi\nderrick. curtis@cityofchicago. org\ncago.org\nVia electronic mail\nThe Honorable Marty Quinn\nAlderman – 13th Ward\nmailto:marty.quinn@cityofchi\nmarty. quinn@cityofchicago. org\ncago.org\n\nVia electronic mail\nThe Honorable Brendan Reilly\nAlderman – 42nd Ward\nmailto:brendan.reilly@cityofchi\nbrendan. reilly@cityofchicago. org\ncago.org\n\nVia electronic mail\nThe Honorable Anthony Beale\nAlderman – 9th Ward\nmailto:anthony.be\nanthony. beale@cityofchicago. org\nale@city\n\ncc:\n\ncc:\n\ncc:"}
{"id":1443,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-05-24","case_number":null,"request_numbers":["78515","79224"],"title":"City of Blue Island Zoning Board did not violate OMA by requiring oath for public comment","filename":"78515 79224, issued May 24, 2024.pdf","rel_path":null,"word_count":2323,"summary":"The PAC reviewed allegations that the City of Blue Island Planning and Zoning Board of Appeals violated the Open Meetings Act by requiring members of the public to be sworn in before providing public comment. The PAC determined that OMA does not permit public bodies to require members of the public to be sworn in as a condition of providing public comment.","plain_summary":"A resident complained that a local zoning board required people to be sworn in before speaking during public hearings at two meetings in 2023. The Illinois Attorney General's Public Access Bureau issued a binding determination finding that the board did not violate the Open Meetings Act at the November 2, 2023 meeting, and was unable to determine whether the board's actions at the October 5, 2023 meeting prevented or deterred public participation. The determination noted that the board held separate public comment sessions where swearing-in was not required, and that individuals who declined to be sworn in were given other opportunities to speak.","holding":"The Board did not violate section 2.06(g) of the Open Meetings Act at the November 2, 2023 meeting, and the available information was insufficient to conclude that the Board violated section 2.06(g) at the October 5, 2023 meeting either.","legal_question":"Whether a public body may require members of the public to be sworn in as a condition of providing public comment during an open meeting pursuant to section 2.06(g) of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Blue Island Planning and Zoning Board of Appeals","requesting_party":"Anonymous/Redacted","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The board required members of the public to be sworn in before offering public comment at zoning meetings.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/78515 79224, issued May 24, 2024.pdf","sha256":"ac9f4aa532f4e22e57319f9f63f9f383bf6846944bf5c8b5f0bbc412f9d1123a","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","zoning board","public participation"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"May 24, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable David Johnson\n\nChair, Planning and Zoning Board of Appeals\nCity of Blue Island\n\n13051 Greenwood Avenue\nBlue Island, Illinois 60406\n\nc/o fbilotto@cityofblueisland.org\nRE: OMA Request for Review – 2023 PAC 78515; 2023 PAC 79224\nDear\n\nand Mr. Johnson:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)).\nBACKGROUND\nOn October 11, 2023,\n\nsubmitted a Request for Review\n\n2023 PAC 78515) to the Public Access Bureau alleging that the City of Blue Island ( City)\n\nPlanning and Zoning Board of Appeals (Board) violated OMA at its October 5, 2023, meeting by\nrequiring members of the public to be sworn in before providing public comment on a\n\nredevelopment plan for a property that formerly housed a hospital. She asserted that the Board's\nattorney \" told the crowd that under the law in public hearing, people who made public comments\n\nwere considered to be witnesses who were giving testimony in a courtroom and therefore were\nrequired to be sworn in.\" 1\n1Letter from\nundated).\n\ncontended that this announcement deterred members of\nto Public Access Counselor, Office of the Attorney General\n\n\fThe Honorable David Johnson\nMay 24, 2024\n\nPage 2\nthe public from participating in public comment, asserting that \"a group of people simply got up\nand left. Others were sworn in and decided not to speak and a group of people were sworn in by\n\nthe attorney and were allowed to speak, with [the Board's attorney] asking for their names and\naddresses before they could speak.\" 2\nOn December 5, 2023,\n\nsubmitted a Request for Review ( 2023 PAC\n\n79224) alleging that the Board also violated OMA at its November 2, 2023, meeting by similarly\nrequiring a member of the public to be sworn in before providing public comment on a proposed\n\namendment to the City's zoning code:\nWhen public comment was called, a citizen came forward to speak,\nthe Board attorney told the citizen that he had to be sworn in * * *\n\nas he was giving legal testimony to the Board. The citizen said he\nwas not testifying nor wanted to be sworn in, but only to give\n\ncomment on an issue to the board. The Board Attorney told the\ncitizen that he was not allowed to give any comment of any kind at\n\nthe hearing without being sworn in.[3]\nOn October 27, 2023, this office forwarded a copy of 2023 PAC 78515 to the\nBoard and asked it to provide this office with copies of the October 5, 2023, meeting agenda and\n\nminutes, together with a written response to\n\nOMA allegation. On November 21,\n\n2023, this office received the requested materials. On November 28, 2023, this office forwarded\n\na copy of the Board's response to\n\nshe replied on December 5, 2023.\n\nOn December 14, 2023, this office forwarded a copy of 2023 PAC 79224 to the\nBoard and asked it to provide the same materials with respect to the November 2, 2023, meeting.\n\nOn January 18, 2024, this office received those materials. On January 22, 2024, this office\nforwarded a copy of the Board' s response to\n\nshe replied on January 30, 2024.\n\nDETERMINATION\n\nSection 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2022)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\n\nand recorded by the public body.\" This provision \"requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\n\nmeetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. A public\n2Letter from\n\nto Public Access Counselor, Office of the Attorney General\n\n3Letter from\n\nto Public Access Counselor, Office of the Attorney General\n\nundated).\n\nundated).\n\n\fThe Honorable David Johnson\nMay 24, 2024\n\nPage 3\nbody may restrict public comment only pursuant to its established and recorded rules, which\nmust tend to accommodate, rather than unreasonably restrict, the right to address public officials.\n\nIll. Att'y Gen. Pub. Acc. Op. No. 14-012, at 6.\nIn response to 2023 PAC 78515, the Board did not dispute that its counsel made a\nstatement at the October 5, 2023, meeting concerning the swearing in of witnesses but asserted\n\nthat this statement was legally correct as related to public hearings. The Board explained:\nA public hearing on a zoning matter is a quasi-judicial proceeding\nduring which the Board of Appeals collects evidence on the\n\napplication before it. Such hearings are commonly done during\nproperly noticed public meetings pursuant to OMA.\nContrary to those who speak during the public- comment\n\nportion of the meeting itself, citizens who address the Board of\nAppeals after a public hearing has been opened are sworn in as\n\nwitnesses prior to speaking. This is so the applicant and any other\ninterested parties have a chance to respond to and/ or rebut any\n\ncitizen testimony and build an official record for appeal.[4]\nAccording to the Board, public hearings are conducted in accordance with the zoning provisions\nof the Municipal Code ( 65 ILCS 5/11- 13- 1.1 (West 2022)) and the City' s code of ordinances,\n\nwhich provide that \"[ c]itizens who wish to speak during such hearings must testify under oath as\nwitnesses and are sworn in prior to giving testimony.\" 5 The Board stated that it started the\n\nOctober 5, 2023, meeting at 7:06 p.m. and \" opened the floor to public comment pursuant to its\nadopted Rules for Public Comment[.]\"\n\n6\n\nThe Board asserted that members of the public could\n\nspeak on any items in the agenda, including special-use applications, during this session. At 7:18\np.m., within the meeting, the Board opened the public hearing on the application involving the\n\nformer hospital and heard sworn testimony from the applicant and members of the public. The\nBoard contended that every person \" who wanted to speak during the public hearing had the\n\n4Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (November 21, 2023), at 1.\n5Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (November 21, 2023), at 2.\n6Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General ( November 21, 2023), at 2.\n\n\fThe Honorable David Johnson\nMay 24, 2024\n\nPage 4\nopportunity to do so, and ultimately, 10 citizens were individually sworn in to submit\ntestimony.\" 7\nIn response to 2023 PAC 79224, the Board presented the same argument,\n\nasserting that it provided an opportunity for public comment at the start of the November 2,\n2023, meeting and later conducted the hearing in question in accordance with provisions of the\n\nMunicipal Code and City ordinances governing public hearings. The Board acknowledged that\none individual declined to be sworn in, but contended that it \"closed the Public Hearing\" and\n\ngave the individual \"another opportunity to address the Board[,]\" aside from the designated\npublic comment session that preceded the opening of the public hearing. 8\nIn reply to the Board' s answers,\n\nargued that section 11- 13- 3(e) of the\n\nMunicipal Code (65 ILCS 5/11-13-3(e) ( West 2022)) \" clearly states that all meetings of the\nPZBA are public meetings[,]\"\n\nand that OMA and the City' s public comment ordinance \" do not\n\nrequire speech to be sworn testimony[.]\" 9 She further argued that the Municipal Code provisions\ncited by the Board \" apply to witnesses that have been called or subpoenaed by the property\n\nowners affected by the special use permit. None of the members of the public wishing to speak\nhad been called or subpoenaed as witnesses.\" 10\nIt is undisputed that the Board asked individuals to be sworn in before speaking\n\nduring the public hearing portions of the October 5, 2023, and November 2, 2023, meetings, but\nthis office' s review of the meetings' minutes confirmed that the Board held a designated public\n\ncomment session after roll call at the two meetings. The minutes document that during the two\nmeetings, members of the public either spoke during the designated public comment session or\n\nprovided testimony during the public hearings. Neither OMA nor the Board's public comment\nrules require members of the public to be sworn in before addressing the members of the Board.\n\nThere is no indication, however, that the Board required individuals to be sworn in before\nspeaking during the designated public comment sessions.\nWith respect to the November 2, 2023, meeting, the minutes reflect that five\n\nmembers of the public spoke on various topics during the designated public comment session.\nThe Board asserted that the individual at issue was provided opportunities to speak during this\n\n7Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (November 21, 2023), at 3.\n8Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (January 18, 2024), at 3.\n9Letter from\n\nto [Public Access Bureau] ( undated).\n\n10Letter from\n\nto [Public Access Bureau] ( undated).\n\n\fThe Honorable David Johnson\nMay 24, 2024\n\nPage 5\nsession and after the conclusion of the public hearing.11 The available information indicates that\nthe individual who declined to be sworn in was afforded other opportunities, aside from the\n\npublic hearing, to exercise his statutory right to address public officials. Accordingly, this office\nconcludes that the Board did not violate section 2.06( g) of OMA at the November 2, 2023,\n\nmeeting.\nWith respect to the October 5, 2023, meeting,\n\nasserted in her reply\n\nthat the Board held a separate public comment session, but \"they also told the public not to\naddress the issue of the old Metro South Hospital at that time. They said the Hospital\n\ndevelopment would be discussed later in the meeting at a public hearing. That discouraged\ndozens of people from making comments at that time.\" 12 This office recognizes\n\nconcern that such statements could have misled or deterred members of the public from speaking\nduring the designated public comment session. However, the draft October 5, 2023, meeting\n\nminutes provided for this office's confidential review indicate that more than ten individuals\nnonetheless spoke during the hearing, and the individuals freely expressed their opinions–– some\n\nexpressed their support for the proposed redevelopment plan, while others were critical of it.\nOne individual declined to take an oath but did not have comments on the application; instead,\n\nthis individual commented on the swearing-in requirement. Many of the individuals also asked\nquestions about the redevelopment plan, and the applicants and their representatives provided a\n\nresponse. Members of the public then provided additional public testimony.\nBased on the available information, this office is unable to determine that\nmembers of the public were prevented or deterred from addressing the Board concerning the\n\nredevelopment plan. Although\n\nobserved some individuals leaving after the Board\nattorney' s announcement concerning the swearing in of witnesses, it is not clear13 that those\nindividuals left because they had been asked or encouraged to wait until the public hearing to\nspeak and were unwilling to do so under oath. It appears that a number of individuals stayed for\n\nthe public hearing and had questions regarding the proposed redevelopment plan. The available\ninformation suggests that the public hearing provided a chance for the applicant to respond\n\nspecifically to questions and comments from the public, which would not have been provided\n\n11The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2022). 15 ILCS 205/7(c)(3) (West 2022).\nTherefore, this office cannot address whether other state laws or municipal ordinances required sworn testimony\nduring the public hearing portions of the meetings.\n12Letter from\n\nto [Public Access Bureau] ( undated).\n\n13The minutes reflect that the hearing at issue took place after another public hearing on a separate\nmatter had concluded.\n\n\fThe Honorable David Johnson\nMay 24, 2024\n\nPage 6\nduring the designated public comment session.14 Under these circumstances, this office is unable\nto conclude that Board improperly restricted members of the public from addressing the Board at\n\nthe October 5, 2023, meeting in violation of section 2.06(g) of OMA.\nAlthough the Municipal Code authorizes municipalities to adopt \"rules relative to\nthe time and manner in which hearing officers are designated to conduct public hearings and\n\nrules governing the manner in which such hearings are conducted[,]\" 15 those rules are distinct\nfrom established and recorded rules governing public comment under OMA. The Board should\n\nbe mindful that a rule requiring individuals to be sworn in to testify during public hearings is not\napplicable to the separate portion of Board hearings in which members of the public have an\n\nopportunity to comment under section 2.06(g) of OMA, even if the speaker wishes to comment\non the topic of the public hearing.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n78515 79224 o consol 206g proper mun\n\ncc:\n\nVia electronic mail\n\nMs. Sara M. Gallagher\nAttorney for Blue Island Planning and Zoning Board of Appeals\n\nMontana & Welch, LLC\n192 North York Street\n\nElmhurst, Illinois 60123\nsgallagher@montanawelch. com\n\n14The Public Access Bureau has previously determined that the right to comment during an open\nmeeting includes the right to ask questions of public officials, notwithstanding that OMA does not require public\nofficials to respond to questions or comments. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35858, issued\nOctober 20, 2015, at 2.\n1565 ILCS 5/11-14.1(D) (West 2022).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Swearing in public commenters at zoning meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78515/","full_text":"May 24, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable David Johnson\n\nChair, Planning and Zoning Board of Appeals\nCity of Blue Island\n\n13051 Greenwood Avenue\nBlue Island, Illinois 60406\n\nc/o fbilotto@cityofblueisland.org\nRE: OMA Request for Review – 2023 PAC 78515; 2023 PAC 79224\nDear\n\nand Mr. Johnson:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)).\nBACKGROUND\nOn October 11, 2023,\n\nsubmitted a Request for Review\n\n2023 PAC 78515) to the Public Access Bureau alleging that the City of Blue Island (City)\n\nPlanning and Zoning Board of Appeals (Board) violated OMA at its October 5, 2023, meeting by\nrequiring members of the public to be sworn in before providing public comment on a\n\nredevelopment plan for a property that formerly housed a hospital. She asserted that the Board's\nattorney \" told the crowd that under the law in public hearing, people who made public comments\n\nwere considered to be witnesses who were giving testimony in a courtroom and therefore were\n\nthe public from participating in public comment, asserting that \"a group of people simply got up\nand left. Others were sworn in and decided not to speak and a group of people were sworn in by\n\nthe attorney and were allowed to speak, with [the Board's attorney] asking for their names and\naddresses before they could speak.\" 2\nOn December 5, 2023,\n\nsubmitted a Request for Review (2023 PAC\n\n79224) alleging that the Board also violated OMA at its November 2, 2023, meeting by similarly\nrequiring a member of the public to be sworn in before providing public comment on a proposed\n\namendment to the City's zoning code:\nWhen public comment was called, a citizen came forward to speak,\nthe Board attorney told the citizen that he had to be sworn in * * *\n\nas he was giving legal testimony to the Board. The citizen said he\nwas not testifying nor wanted to be sworn in, but only to give\n\ncomment on an issue to the board. The Board Attorney told the\ncitizen that he was not allowed to give any comment of any kind at\n\nthe hearing without being sworn in.[3]\nOn October 27, 2023, this office forwarded a copy of 2023 PAC 78515 to the\nBoard and asked it to provide this office with copies of the October 5, 2023, meeting agenda and\n\nminutes, together with a written response to\n\nOMA allegation. On November 21,\n\n2023, this office received the requested materials. On November 28, 2023, this office forwarded\n\na copy of the Board's response to\n\nshe replied on December 5, 2023.\n\nOn December 14, 2023, this office forwarded a copy of 2023 PAC 79224 to the\nBoard and asked it to provide the same materials with respect to the November 2, 2023, meeting.\n\nOn January 18, 2024, this office received those materials. On January 22, 2024, this office\nforwarded a copy of the Board's response to\n\nshe replied on January 30, 2024.\n\nDETERMINATION\n\nSection 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2022)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\n\nand recorded by the public body.\" This provision \"requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\n\nmeetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. A public\n2 Letter from\n\nbody may restrict public comment only pursuant to its established and recorded rules, which\nmust tend to accommodate, rather than unreasonably restrict, the right to address public officials.\n\nIll. Att'y Gen. Pub. Acc. Op. No. 14-012, at 6.\nIn response to 2023 PAC 78515, the Board did not dispute that its counsel made a\nstatement at the October 5, 2023, meeting concerning the swearing in of witnesses but asserted\n\nthat this statement was legally correct as related to public hearings. The Board explained:\nA public hearing on a zoning matter is a quasi-judicial proceeding\nduring which the Board of Appeals collects evidence on the\n\napplication before it. Such hearings are commonly done during\nproperly noticed public meetings pursuant to OMA.\nContrary to those who speak during the public- comment\n\nportion of the meeting itself, citizens who address the Board of\nAppeals after a public hearing has been opened are sworn in as\n\nwitnesses prior to speaking. This is so the applicant and any other\ninterested parties have a chance to respond to and/ or rebut any\n\ncitizen testimony and build an official record for appeal.[4]\nAccording to the Board, public hearings are conducted in accordance with the zoning provisions\nof the Municipal Code (65 ILCS 5/11- 13- 1.1 (West 2022)) and the City's code of ordinances,\n\nwhich provide that \"[ c]itizens who wish to speak during such hearings must testify under oath as\nwitnesses and are sworn in prior to giving testimony.\" 5 The Board stated that it started the\n\nOctober 5, 2023, meeting at 7:06 p.m. and \" opened the floor to public comment pursuant to its\nadopted Rules for Public Comment[.]\"\n\n6\n\nThe Board asserted that members of the public could\n\nspeak on any items in the agenda, including special-use applications, during this session. At 7:18\np.m., within the meeting, the Board opened the public hearing on the application involving the\n\nformer hospital and heard sworn testimony from the applicant and members of the public. The\nBoard contended that every person \" who wanted to speak during the public hearing had the\n\n4 Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\n\nopportunity to do so, and ultimately, 10 citizens were individually sworn in to submit\ntestimony.\" 7\nIn response to 2023 PAC 79224, the Board presented the same argument,\n\nasserting that it provided an opportunity for public comment at the start of the November 2,\n2023, meeting and later conducted the hearing in question in accordance with provisions of the\n\nMunicipal Code and City ordinances governing public hearings. The Board acknowledged that\none individual declined to be sworn in, but contended that it \"closed the Public Hearing\" and\n\ngave the individual \"another opportunity to address the Board[,]\" aside from the designated\npublic comment session that preceded the opening of the public hearing. 8\nIn reply to the Board's answers,\n\nargued that section 11- 13- 3(e) of the\n\nMunicipal Code (65 ILCS 5/11-13-3(e) (West 2022)) \" clearly states that all meetings of the\nPZBA are public meetings[,]\"\n\nand that OMA and the City's public comment ordinance \" do not\n\nrequire speech to be sworn testimony[.]\" 9 She further argued that the Municipal Code provisions\ncited by the Board \" apply to witnesses that have been called or subpoenaed by the property\n\nowners affected by the special use permit. None of the members of the public wishing to speak\nhad been called or subpoenaed as witnesses.\" 10\nIt is undisputed that the Board asked individuals to be sworn in before speaking\n\nduring the public hearing portions of the October 5, 2023, and November 2, 2023, meetings, but\nthis office's review of the meetings' minutes confirmed that the Board held a designated public\n\ncomment session after roll call at the two meetings. The minutes document that during the two\nmeetings, members of the public either spoke during the designated public comment session or\n\nprovided testimony during the public hearings. Neither OMA nor the Board's public comment\nrules require members of the public to be sworn in before addressing the members of the Board.\n\nThere is no indication, however, that the Board required individuals to be sworn in before\nspeaking during the designated public comment sessions.\nWith respect to the November 2, 2023, meeting, the minutes reflect that five\n\nmembers of the public spoke on various topics during the designated public comment session.\nThe Board asserted that the individual at issue was provided opportunities to speak during this\n\n7 Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (November 21, 2023), at 3.\n8 Letter from Sara M. Gallagher, Montana Welch LLC, to Teresa Lim, Supervising Attorney,\n\nsession and after the conclusion of the public hearing.11 The available information indicates that\nthe individual who declined to be sworn in was afforded other opportunities, aside from the\n\npublic hearing, to exercise his statutory right to address public officials. Accordingly, this office\nconcludes that the Board did not violate section 2.06(g) of OMA at the November 2, 2023,\n\nmeeting.\nWith respect to the October 5, 2023, meeting,\n\nasserted in her reply\n\nthat the Board held a separate public comment session, but \"they also told the public not to\naddress the issue of the old Metro South Hospital at that time. They said the Hospital\n\ndevelopment would be discussed later in the meeting at a public hearing. That discouraged\ndozens of people from making comments at that time.\" 12 This office recognizes\n\nconcern that such statements could have misled or deterred members of the public from speaking\nduring the designated public comment session. However, the draft October 5, 2023, meeting\n\nminutes provided for this office's confidential review indicate that more than ten individuals\nnonetheless spoke during the hearing, and the individuals freely expressed their opinions–– some\n\nexpressed their support for the proposed redevelopment plan, while others were critical of it.\nOne individual declined to take an oath but did not have comments on the application; instead,\n\nthis individual commented on the swearing-in requirement. Many of the individuals also asked\nquestions about the redevelopment plan, and the applicants and their representatives provided a\n\nresponse. Members of the public then provided additional public testimony.\nBased on the available information, this office is unable to determine that\nmembers of the public were prevented or deterred from addressing the Board concerning the\n\nredevelopment plan. Although\n\nobserved some individuals leaving after the Board\nattorney's announcement concerning the swearing in of witnesses, it is not clear13 that those\nindividuals left because they had been asked or encouraged to wait until the public hearing to\nspeak and were unwilling to do so under oath. It appears that a number of individuals stayed for\n\nthe public hearing and had questions regarding the proposed redevelopment plan. The available\ninformation suggests that the public hearing provided a chance for the applicant to respond\n\nspecifically to questions and comments from the public, which would not have been provided\n\n11 The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2022). 15 ILCS 205/7(c)(3) (West 2022).\nTherefore, this office cannot address whether other state laws or municipal ordinances required sworn testimony\nduring the public hearing portions of the meetings.\n12 Letter from\n\nto [Public Access Bureau] (undated).\n\n13 The minutes reflect that the hearing at issue took place after another public hearing on a separate\n\nduring the designated public comment session.14 Under these circumstances, this office is unable\nto conclude that Board improperly restricted members of the public from addressing the Board at\n\nthe October 5, 2023, meeting in violation of section 2.06(g) of OMA.\nAlthough the Municipal Code authorizes municipalities to adopt \"rules relative to\nthe time and manner in which hearing officers are designated to conduct public hearings and\n\nrules governing the manner in which such hearings are conducted[,]\" 15 those rules are distinct\nfrom established and recorded rules governing public comment under OMA. The Board should\n\nbe mindful that a rule requiring individuals to be sworn in to testify during public hearings is not\napplicable to the separate portion of Board hearings in which members of the public have an\n\nopportunity to comment under section 2.06(g) of OMA, even if the speaker wishes to comment\non the topic of the public hearing.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n78515 79224 o consol 206g proper mun\n\ncc:\n\nVia electronic mail\n\nMs. Sara M. Gallagher\nAttorney for Blue Island Planning and Zoning Board of Appeals\n\nMontana & Welch, LLC\n192 North York Street\n\nElmhurst, Illinois 60123\nsgallagher@montanawelch. com\n\n14 The Public Access Bureau has previously determined that the right to comment during an open\nmeeting includes the right to ask questions of public officials, notwithstanding that OMA does not require public\nofficials to respond to questions or comments. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35858, issued\nOctober 20, 2015, at 2.\n1565 ILCS 5/11-14.1(D) (West 2022)."}
{"id":1444,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-01-17","case_number":null,"request_numbers":["78964"],"title":"McLean County Board Executive Committee violated OMA with 24-hour sign-up rule for public comment","filename":"78964 issued January 17, 2024.pdf","rel_path":null,"word_count":2479,"summary":"The PAC investigated a complaint that the McLean County Board's Executive Committee improperly restricted public comment by requiring 24-hour advance registration. The PAC determined that this requirement violated section 2.06(g) of the Open Meetings Act.","plain_summary":"A citizen complained that the McLean County Board's Executive Committee required people to sign up to speak at least 24 hours before a meeting. The Illinois Attorney General's office found this rule violated the Open Meetings Act because it unreasonably restricted the public's right to address the committee. The committee was advised to revise its rules to ensure public comment procedures are reasonable and do not unnecessarily block participation.","holding":"The Executive Committee of the McLean County Board violated section 2.06(g) of the Open Meetings Act by imposing an unreasonable 24-hour advance sign-up requirement for public comment.","legal_question":"Does a requirement that members of the public sign up to speak at a public meeting at least 24 hours in advance violate the Open Meetings Act's provisions regarding public comment?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Executive Committee of the McLean County Board","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The committee required members of the public to register for public comment at least 24 hours before the meeting.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/unreasonable-rules/78964 issued January 17, 2024.pdf","sha256":"0468054ceced1a9643d88cefed801392b32b8c16e6210dd7551a0d2c09336dac","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","Open Meetings Act","meeting rules","citizen participation"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nJanuary 17, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Catherine Metsker\nChair, Executive Committee\n\nMcLean County Board\n115 East Washington\nBloomington,\n\nStreet\n\nIllinois 61701\n\ncatherine. metsker@mcleancountyil. gov\nRE: OMA Request for Review — 2023 PAC 78964\n\nDear and Ms. Metsker:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Executive Committee ( Committee) of the McLean County Board (Board)\nviolated the requirements of section 2. 06( g) of OMA' in connection with its November 13, 2023,\nmeeting.\nBACKGROUND\n\nOn November 13, 2023,\n\nsubmitted a Request for Review to\n\nthe Public Access Bureau alleging that the Committee improperly restricted the public's right to\naddress its members at its November 13, 2023, meeting by requiring members of the public to\n15 ILCS 120/ 2.06(g) (West 2022).\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: ( 312) 814. 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\nwww. IllinoisAttomeyGeneral.\n\ngov\n\nFax: ( 618) 529- 6416\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 2\n\nsign up to speak at\n\nleast 24 hours in advance of holding the meeting. -\n\nexplained that\n\non the County website, an online form is available to register for public comment at a Board or\ncommittee\nmeeting and on this form, it states: \" Must be Received 24 Hours Prior to Meeting\n2\nTime.\" 1.\nstated she completed the online form the morning of the meeting and\nindicated\n\nthat she\n\nwished\n\nto\n\nspeak on certain items in the agenda.\n\nShe asserted: \"\n\nI received my\n\nSubmission Receipt which stated that ' If eligible for public comment, you will be contacted with\nfurther information about how to participate in the meeting.' I was never contacted regarding this\n\nsubmission, meaning I was being denied for public comment. i3\nOn November 20, 2023, this office forwarded a copy of the Request for Review to\n\nthe Committee and asked it to provide this office with copies of is November 13, 2023, meeting\nagenda, minutes, and any rules or policies governing public comment, together with a written\nresponse te\n\nOMA allegations.\n\nOn December\n\n1, 2023, this office received the\n\nrequested materials from the McLean County State' s Attorney's Office on behalf of the\nCommittee. On December 4, 2023, this office forwarded a copy of the Committee' s response to\nshe replied that same day.\nDETERMINATION\n\nSection 2. 06( g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address\n\nIll. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14public\n\nofficials\n\nat open meetings.\"\n\n012, at 6.\n\nAn advance sign up rule that is enforced to prevent a member of the public from\naddressing a public body violates OMA if it is not reasonably necessary to promote a significant\ngovernmental interest. Compare I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, at 6 ( rule requiring\nmembers of the public to sign up to comment five days in advance of meetings, before the board\nwas required to post its agenda, imposed an unreasonable restriction on public comment) and I11.\nAtt' y Gen. PAC Req. Rev. Ltr. 54487, issued November 10, 2021, at 2 ( rule requiring members\nof the public to sign up to comment 53 hours in advance of meetings unreasonably restricted the\nright to public comment where the public body did not demonstrate that imposing its advance\nsign up requirement was reasonably necessary to maintain order or to conduct an efficient\n\n2E- mail from\n\nto [ Public Access Bureau] ( November 13. 2023).\n\n3E- mail from\n\nto [ Public Access Bureau] ( November 13, 2023).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 3\n\nand no such justification was\n\nwith Ill. Att'y Gen. PAC Req. Rev. Ltr. 39640,\nissued June 22, 2016, at 3 ( rule requiring prospective commenters to sign up by start of meeting\ndid not unreasonably restrict the right to public comment).\nmeeting,\n\napparent),\n\nIn its response to this office, the Committee acknowledged\ndid enforce a 24- hour registration requirement with regard to that it failed to provide an opportunity\n\nmeeting. 4\n\nfor\n\nthat it\nrequest,\"\n\nbut denied\n\nto speak at the November 13, 2023,\n\nThe Committee referred this office to section 20- 13G of the McLean County Code, 5\n\nwhich provides, in relevant part:\nG. Appearance by non- members. With the acknowledgement that\nthe most appropriate forum for the general public to address\nCounty Board members is the committee charged with\noverseeing the subject matter of the address, those wishing to\naddress the Board shall adhere to the following:\n1)\n\nSubject to provisions\n\nof Subsection G( 3), any member may\n\nrequest that a County officer or employee, or other\npersons, be permitted to appear before the County Board\non matters directly related to a topic on the agenda for a\nCounty Board meeting, and such request shall be granted\nby the Chair unless there is objection by any member, in\n\nwhich event Board action, by general vote as provided in\nSubsection A( 2) above, will be required to overrule the\n\nChair. The provisions of Subsection G(2) shall not apply to\nrequests made by members pursuant to this Subsection\nG( 1).\n\n2) The County Board shallpermit non-members to appear\nbefore and address members of the County Board during\n\nCounty Board meetings in accordance with thefollowing\nrules:\n\na) There shall be a total maximum\n\nof 15 minutes allotted\n\nin accordance with § 20- 12E and 15 minutes allotted in\naccordance\n\nwith § 20- 12I during each County Board\n\nLetter from Trevor Sierra, First Assistant State' s Attorney, Civil Division, McLean County State' s\nAttorney. to Teresa Lim, Assistant Attorney General. Office of the Attorney General ( December 1, 2023).\nMcLean County Code of Ordinances § 20- 13G ( amended December 16, 2021).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 4\n\nmeeting for appearances by all non- members. Any\nmember may request an extension of this time limit by\nmaking a request to allow the non- member to continue\npursuant\n\nto\n\nSubsection G( 1). [\n\nAmended 12- 16- 2021 ]\n\nb) All requests by non- members for appearance before the\nBoard shall be made prior to the meeting at which the\nnon- member wishes to appear within the time periods\nset\n\nforth in Subsection G( 2)( c). Such requests shall be\n\nsubmitted to the County Administrator, in writing or by\ne- mail identifying the subject matter or agenda item to\nbe addressed.\n\nc) Requests to appear that are directly related to an item\non an agenda for a County Board meeting shall be\nsubmitted not less than 24 hours prior to the published\n\nstart time of the Board meeting at which the nonmember wishes to appear. Requests to appear that are\n\nnot directly related to an item on an agenda for the\nCounty Board meeting shall be submitted not less than\ntwo business days prior to the published start time of\nthe Board meeting at which the non- member wishes to\nappear. [\n\nThe Committee argued\n\nthat\n\nAmended 4- 21- 2020] (\n\nit did not unreasonably\n\nof the Committee \" because\n\nEmphasis added.)\n\nrestrict\n\nright\n\nto address\n\nmembers\n\nfailed to avail herself of the opportunity to address the\n\nCommittee as provided for under § 20- 13G( 1)\n\nof the Code. i6 In particular, the Committee\n\nasserted that the Board and its committees \" routinely grant nonmembers an opportunity to\nprovision, and that\nThe Committee contended that\n\nprovide public comment\"\n\npursuant\n\nto that\n\npursue that option.\nspeak at the meeting, \" there is every reason\nIn reply to that answer, -\n\nto\n\nbelieve\n\nshe\n\ndid not attempt to\nhad attended and requested to\n\nwould have been granted permission.\"\n\nargued that \"[ i] t is unreasonable\n\n7\n\nto expect a\n\nmember of the public to know of any other pathways to participate, given the information\n\n6Letter from Trevor Sierra, First Assistant State' s Attorney, Civil Division, McLean County State' s\nAttorney, to Teresa Lim, Assistant Attorney General, Office of the Attorney General ( December\n\n1, 2023).\n\nLetter from Trevor Sierra. First Assistant State's Attorney, Civil Division. McLean County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Office of the Attorney General ( December 1, 2023).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 5\n\nprovided.\" 8 She asserted that on the County website, a link titled \" How do I request to speak a\nCounty Board or Committee\n\nmeeting?\"\n\ndirects the public to the online\n\nregistration\n\nform.\n\nShe\n\nfurther asserted that the form only advises that requests to speak must be submitted 24 hours in\nadvance, and she did not receive any communications after submitting her request notifying her\nof any alternative\n\nalso highlighted that some other public bodies permit\nmembers of the public to submit a request as late as five minutes before a meeting whereas she\nsubmitted her request more than 7 hours prior to the meeting, but was denied based on the 24hour registration\n\noptions. -\n\nrule.\n\nIn this matter, it is undisputed that the Committee enforced a 24- hour registration\n\ncompleted online form to speak at the November 13, 2023, meeting,\nwhich was submitted the morning of the meeting. The Committee did not explain how this rule\nwas necessary to maintain order and decorum and to conduct an efficient meeting, and no such\njustification is apparent. Although it may be convenient for the Committee to have advance\nnotice of who intends to participate in public comment, the enforcement of the rule unreasonably\nrequirement\n\nrestricted -\n\non\n\nstatutory right to address the Committee.\n\nThe Committee' s claim that did not exhaust her options for requesting\nto speak requires a strained interpretation of the Board' s rules goveming public comment. As the\nCommittee highlighted, section 20- 13G( 1) of the McLean County Code ( Code) provides that\nany member may request that a County officer or employee, or other persons, be permitted to\nappear\n\nbefore the County Board[.]\"\n\nThus, section 20- 13G( 1) governs requests made by Board\n\nmembers concerning the appearance of non- members. Under this provision, a Board member\nmay select a county employee or other individual to appear before the Board and speak on an\nissue directly related to an agenda item, so long as there are no objections and votes to overrule\nthe Chair's granting of the appearance. Given its express applicability to requests made by\nmembers, it is not obvious that the general public can solicit members, either before or at a\nmeeting, to make requests on its behalf.\nIn contrast, section 20- 13G(2) of the Code specifically provides that the Board\nshall permit non- members to appear before and address members of the County Board during\nCounty Board meetings in accordance with the following rules\" and enumerates them. Among\nthose rules, the Code states that \"[ r]equests to appear that are directly related to an item on an\nagenda for a County Board meeting shall be submitted not less than 24 hours prior to the\npublished start time of the Board meeting at which the non- member wishes to appear.\" Reading\nthe two provisions together, a member of the public could have reasonably understood section\n20- 13G( 2) of the Code, rather than both provisions, to apply to requests made by the general\npublic to speak at a meeting because that provision directly concerns requests made by nonmembers. Even if the Committee routinely allows non- members to speak pursuant to section 208E- mail fro\n\nto Teresa Lim ( December 4, 2023).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 6\n\n13G( 1) of the Code, the Committee did not illustrate that members of the public reasonably knew\nthat they could present themselves at a meeting and request again to speak after having already\nbeen denied via the online registration form. Additionally,\nasserted that neither the\n\nCounty website nor the submission receipt provided information regarding other possible ways\nto request to speak if an online submission was denied.\n\nFinally, section 2. 06( g) of OMA more broadly guarantees members of the public\nthe opportunity to address public bodies, without arbitrary restrictions. If the ability to address a\npublic body was contingent on a member of the public body making such a request on behalf of\nthe speaker, and could be thwarted by the public body voting against the speaker's appearance,\nthe\n\nright to\n\npublic comment\n\nunder\n\nsection\n\n2. 06( g) of OMA would be no right at all.\n\nUnder these\n\ncircumstances, the Public Access Bureau concludes that the Committee improperly restricted\nright to address the Committee at its August 13, 2023, meeting in violation of\nsection 2. 06( g) of OMA when it enforced a 24- hour registration rule to deny the request she\nsubmitted online to speak at the meeting.\nThis office requests that the Board and its committees review and consider\n\nrevising its current ordinance regulating public comment to ensure that any advanced sign up\n\nrequirement is reasonably necessary to maintain order and to conduct an efficient meeting. To\nthe extent that members of the public may attend a meeting and request in person to speak, the\n\nBoard may wish to update the public comment information on the County website, including the\nonline submission form.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n\n78964 o 206g pub comment improper co\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Catherine Metsker\n\nJanuary 17, 2024\nPage 7\n\ncc:\n\nVia electronic mail\nMr. Trevor J. Sierra\n\nFirst Assistant State' s Attorney\nMcLean County State' s Attorney' s Office\n115 East Washington Street, Room 401\nBloomington,\n\nIllinois 61701\n\nTrevor. Sierra@mcleancountyil. gov\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Advance sign-up rule for public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-78964/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nJanuary 17, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Catherine Metsker\nChair, Executive Committee\n\nMcLean County Board\n115 East Washington\nBloomington,\n\nStreet\n\nIllinois 61701\n\ncatherine. metsker@mcleancountyil. gov\nRE: OMA Request for Review — 2023 PAC 78964\n\nDear and Ms. Metsker:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2022)).\n\nFor the reasons that follow, the Public Access Bureau\n\nconcludes that the Executive Committee (Committee) of the McLean County Board (Board)\nviolated the requirements of section 2. 06(g) of OMA' in connection with its November 13, 2023,\nmeeting.\nBACKGROUND\n\nOn November 13, 2023,\n\nsubmitted a Request for Review to\n\nthe Public Access Bureau alleging that the Committee improperly restricted the public's right to\naddress its members at its November 13, 2023, meeting by requiring members of the public to\n15 ILCS 120/ 2.06(g) (West 2022).\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: (312) 814. 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\n\nsign up to speak at\n\nleast 24 hours in advance of holding the meeting. -\n\nexplained that\n\non the County website, an online form is available to register for public comment at a Board or\ncommittee\nmeeting and on this form, it states: \" Must be Received 24 Hours Prior to Meeting\n2\nTime.\" 1.\nstated she completed the online form the morning of the meeting and\nindicated\n\nthat she\n\nwished\n\nto\n\nspeak on certain items in the agenda.\n\nShe asserted: \"\n\nI received my\n\nSubmission Receipt which stated that ' If eligible for public comment, you will be contacted with\nfurther information about how to participate in the meeting.' I was never contacted regarding this\n\nsubmission, meaning I was being denied for public comment. i3\nOn November 20, 2023, this office forwarded a copy of the Request for Review to\n\nthe Committee and asked it to provide this office with copies of is November 13, 2023, meeting\nagenda, minutes, and any rules or policies governing public comment, together with a written\nresponse te\n\nOMA allegations.\n\nOn December\n\n1, 2023, this office received the\n\nrequested materials from the McLean County State's Attorney's Office on behalf of the\nCommittee. On December 4, 2023, this office forwarded a copy of the Committee's response to\nshe replied that same day.\nDETERMINATION\n\nSection 2. 06(g) of OMA provides that \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address\n\nIll. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14public\n\nofficials\n\nat open meetings.\"\n\n012, at 6.\n\nAn advance sign up rule that is enforced to prevent a member of the public from\naddressing a public body violates OMA if it is not reasonably necessary to promote a significant\ngovernmental interest. Compare I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, at 6 (rule requiring\nmembers of the public to sign up to comment five days in advance of meetings, before the board\nwas required to post its agenda, imposed an unreasonable restriction on public comment) and I11.\nAtt' y Gen. PAC Req. Rev. Ltr. 54487, issued November 10, 2021, at 2 (rule requiring members\nof the public to sign up to comment 53 hours in advance of meetings unreasonably restricted the\nright to public comment where the public body did not demonstrate that imposing its advance\nsign up requirement was reasonably necessary to maintain order or to conduct an efficient\n\nand no such justification was\n\nwith Ill. Att'y Gen. PAC Req. Rev. Ltr. 39640,\nissued June 22, 2016, at 3 (rule requiring prospective commenters to sign up by start of meeting\ndid not unreasonably restrict the right to public comment).\nmeeting,\n\napparent),\n\nIn its response to this office, the Committee acknowledged\ndid enforce a 24- hour registration requirement with regard to that it failed to provide an opportunity\n\nmeeting. 4\n\nfor\n\nthat it\nrequest,\"\n\nbut denied\n\nto speak at the November 13, 2023,\n\nThe Committee referred this office to section 20- 13G of the McLean County Code, 5\n\nwhich provides, in relevant part:\nG. Appearance by non- members. With the acknowledgement that\nthe most appropriate forum for the general public to address\nCounty Board members is the committee charged with\noverseeing the subject matter of the address, those wishing to\naddress the Board shall adhere to the following:\n1)\n\nSubject to provisions\n\nof Subsection G(3), any member may\n\nrequest that a County officer or employee, or other\npersons, be permitted to appear before the County Board\non matters directly related to a topic on the agenda for a\nCounty Board meeting, and such request shall be granted\nby the Chair unless there is objection by any member, in\n\nwhich event Board action, by general vote as provided in\nSubsection A(2) above, will be required to overrule the\n\nChair. The provisions of Subsection G(2) shall not apply to\nrequests made by members pursuant to this Subsection\nG(1).\n\n2) The County Board shallpermit non-members to appear\nbefore and address members of the County Board during\n\nCounty Board meetings in accordance with thefollowing\nrules:\n\na) There shall be a total maximum\n\nof 15 minutes allotted\n\nin accordance with § 20- 12E and 15 minutes allotted in\naccordance\n\nwith § 20- 12I during each County Board\n\nLetter from Trevor Sierra, First Assistant State's Attorney, Civil Division, McLean County State's\nAttorney. to Teresa Lim, Assistant Attorney General. Office of the Attorney General (December 1, 2023).\n\nmeeting for appearances by all non- members. Any\nmember may request an extension of this time limit by\nmaking a request to allow the non- member to continue\npursuant\n\nto\n\nSubsection G(1). [\n\nAmended 12- 16- 2021 ]\n\nb) All requests by non- members for appearance before the\nBoard shall be made prior to the meeting at which the\nnon- member wishes to appear within the time periods\nset\n\nforth in Subsection G(2)(c). Such requests shall be\n\nsubmitted to the County Administrator, in writing or by\ne- mail identifying the subject matter or agenda item to\nbe addressed.\n\nc) Requests to appear that are directly related to an item\non an agenda for a County Board meeting shall be\nsubmitted not less than 24 hours prior to the published\n\nstart time of the Board meeting at which the nonmember wishes to appear. Requests to appear that are\n\nnot directly related to an item on an agenda for the\nCounty Board meeting shall be submitted not less than\ntwo business days prior to the published start time of\nthe Board meeting at which the non- member wishes to\nappear. [\n\nThe Committee argued\n\nthat\n\nAmended 4- 21- 2020] (it did not unreasonably\n\nof the Committee \" because\n\nEmphasis added.)\n\nrestrict\n\nright\n\nto address\n\nmembers\n\nfailed to avail herself of the opportunity to address the\n\nCommittee as provided for under § 20- 13G(1)\n\nof the Code. i6 In particular, the Committee\n\nasserted that the Board and its committees \" routinely grant nonmembers an opportunity to\nprovision, and that\nThe Committee contended that\n\nprovide public comment\"\n\npursuant\n\nto that\n\npursue that option.\nspeak at the meeting, \" there is every reason\nIn reply to that answer, -\n\nto\n\nbelieve\n\nshe\n\ndid not attempt to\nhad attended and requested to\n\nwould have been granted permission.\"\n\nargued that \"[ i] t is unreasonable\n\n7\n\nto expect a\n\nmember of the public to know of any other pathways to participate, given the information\n\n6 Letter from Trevor Sierra, First Assistant State's Attorney, Civil Division, McLean County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Office of the Attorney General (December\n\n1, 2023).\n\nLetter from Trevor Sierra. First Assistant State's Attorney, Civil Division. McLean County State's\nAttorney, to Teresa Lim, Assistant Attorney General, Office of the Attorney General (December 1, 2023).\n\nprovided.\" 8 She asserted that on the County website, a link titled \" How do I request to speak a\nCounty Board or Committee\n\nmeeting?\"\n\ndirects the public to the online\n\nregistration\n\nform.\n\nShe\n\nfurther asserted that the form only advises that requests to speak must be submitted 24 hours in\nadvance, and she did not receive any communications after submitting her request notifying her\nof any alternative\n\nalso highlighted that some other public bodies permit\nmembers of the public to submit a request as late as five minutes before a meeting whereas she\nsubmitted her request more than 7 hours prior to the meeting, but was denied based on the 24hour registration\n\noptions. -\n\nrule.\n\nIn this matter, it is undisputed that the Committee enforced a 24- hour registration\n\ncompleted online form to speak at the November 13, 2023, meeting,\nwhich was submitted the morning of the meeting. The Committee did not explain how this rule\nwas necessary to maintain order and decorum and to conduct an efficient meeting, and no such\njustification is apparent. Although it may be convenient for the Committee to have advance\nnotice of who intends to participate in public comment, the enforcement of the rule unreasonably\nrequirement\n\nrestricted -\n\non\n\nstatutory right to address the Committee.\n\nThe Committee's claim that did not exhaust her options for requesting\nto speak requires a strained interpretation of the Board's rules goveming public comment. As the\nCommittee highlighted, section 20- 13G(1) of the McLean County Code (Code) provides that\nany member may request that a County officer or employee, or other persons, be permitted to\nappear\n\nbefore the County Board[.]\"\n\nThus, section 20- 13G(1) governs requests made by Board\n\nmembers concerning the appearance of non- members. Under this provision, a Board member\nmay select a county employee or other individual to appear before the Board and speak on an\nissue directly related to an agenda item, so long as there are no objections and votes to overrule\nthe Chair's granting of the appearance. Given its express applicability to requests made by\nmembers, it is not obvious that the general public can solicit members, either before or at a\nmeeting, to make requests on its behalf.\nIn contrast, section 20- 13G(2) of the Code specifically provides that the Board\nshall permit non- members to appear before and address members of the County Board during\nCounty Board meetings in accordance with the following rules\" and enumerates them. Among\nthose rules, the Code states that \"[ r]equests to appear that are directly related to an item on an\nagenda for a County Board meeting shall be submitted not less than 24 hours prior to the\npublished start time of the Board meeting at which the non- member wishes to appear.\" Reading\nthe two provisions together, a member of the public could have reasonably understood section\n20- 13G(2) of the Code, rather than both provisions, to apply to requests made by the general\npublic to speak at a meeting because that provision directly concerns requests made by nonmembers. Even if the Committee routinely allows non- members to speak pursuant to section 208E- mail fro\n\n13G(1) of the Code, the Committee did not illustrate that members of the public reasonably knew\nthat they could present themselves at a meeting and request again to speak after having already\nbeen denied via the online registration form. Additionally,\nasserted that neither the\n\nCounty website nor the submission receipt provided information regarding other possible ways\nto request to speak if an online submission was denied.\n\nFinally, section 2. 06(g) of OMA more broadly guarantees members of the public\nthe opportunity to address public bodies, without arbitrary restrictions. If the ability to address a\npublic body was contingent on a member of the public body making such a request on behalf of\nthe speaker, and could be thwarted by the public body voting against the speaker's appearance,\nthe\n\nright to\n\npublic comment\n\nunder\n\nsection\n\n2. 06(g) of OMA would be no right at all.\n\nUnder these\n\ncircumstances, the Public Access Bureau concludes that the Committee improperly restricted\nright to address the Committee at its August 13, 2023, meeting in violation of\nsection 2. 06(g) of OMA when it enforced a 24- hour registration rule to deny the request she\nsubmitted online to speak at the meeting.\nThis office requests that the Board and its committees review and consider\n\nrevising its current ordinance regulating public comment to ensure that any advanced sign up\n\nrequirement is reasonably necessary to maintain order and to conduct an efficient meeting. To\nthe extent that members of the public may attend a meeting and request in person to speak, the\n\nBoard may wish to update the public comment information on the County website, including the\nonline submission form.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\ncc:\n\nVia electronic mail\nMr. Trevor J. Sierra\n\nFirst Assistant State's Attorney\nMcLean County State's Attorney's Office\n115 East Washington Street, Room 401\nBloomington,\n\nIllinois 61701\n\nTrevor. Sierra@mcleancountyil. gov\n\nOffice of the Illinois Attorney General"}
{"id":1445,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-04-26","case_number":null,"request_numbers":["79291"],"title":"Village of Olympia Fields violated OMA by blocking meeting recording","filename":"79291, issued April 26, 2024.pdf","rel_path":null,"word_count":1199,"summary":"A citizen alleged that the Village of Olympia Fields violated the Open Meetings Act by allowing the police chief to order him to stop recording a public meeting. The PAC determined that the Village violated OMA by interfering with the individual's right to record the meeting.","plain_summary":"A resident complained that he was told by a police chief to stop recording a public village board meeting, and the board president did nothing to stop it. The Illinois Attorney General's office found that the village violated the Open Meetings Act, which guarantees the public's right to record open meetings. This means the village acted improperly by allowing the recording to be blocked.","holding":"The Village of Olympia Fields violated the Open Meetings Act by interfering with the requester's ability to record the Board's November 8, 2023, meeting.","legal_question":"Did the Village of Olympia Fields violate section 2.05 of the Open Meetings Act by interfering with a member of the public's right to record an open meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.05"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Olympia Fields Board of Trustees","requesting_party":"Mr. [Name Redacted]","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"recording meetings","subject_description":"The matter concerns the right of a member of the public to record an open meeting of a public body.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.05/79291, issued April 26, 2024.pdf","sha256":"d09406b522b6a3394fbac6314980cd8f4188424ceab14d73a10d702b64b598e0","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recording meetings","public comment","Open Meetings Act","right to record"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"April 26, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Drella C. Savage\nVillage Administrator\nVillage of Olympia Fields\n20040 Governors Highway\nOlympia Fields, Illinois 60461\n\ndsavage@olympia -fields.com\nRE: OMA Request for Review – 2023 PAC 79291\n\nDear\n\nand Ms. Savage:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(e) ( West 2022 )). For the reasons explained below, the Public Access\nBureau concludes that the Village of Olympia Fields Board of Trustees ( Board) violated OMA\n\nby interfering with\nregular meeting.\n\nability to record the Board's November 8, 2023,\n\nBACKGROUND\nOn December 10, 2023 ,this office received\nRequest for Review\nalleging that, at the Board's November 8, 2023, meeting, he \"was ordered by Police Chief Derek\nBlessingame to stop recording the meeting. Ordering me to stop recording the meeting was a\nviolation of the Open Meetings Act. President Burke did not intervene. I sat d own, stopped\n\n\fMs. Drella C. Savage\nApril 26, 2024\nPage 2\nrecording, and left the meeting.\" 1\n\nexplained that this interaction occurred during\n\nthe public comment portion of the meeting.\nOn December 13 ,2023 ,this office sent a copy of the Request for Review to the\nBoard and asked it to provide a written response to the allegation in\nRequest for\nReview, along with copies of its November 8, 2023, meeting minutes and any available\nrecordings. On January 9 , 202 4 , the Board responded . On January 10 , 202 4 , this office\n\nforwarded a copy of the Board's response to .\nOn January 9, 2024, and January\n10, 2024,\nreplied to the Board's response. He maintained that the Board failed to\nintervene when the police chief told him to stop recording.\nDETERMINATION\n\nSection 2.05 of OMA (5 ILCS 120/2.05 (West 2022)) provides:\nSubject to the provisions of Section 8 -701 of the Code of Civil\nProcedure, any person may record the proceedings at meetings\n\nrequired to be open by this Act by tape, film or other means. The\nauthority holding the meeting shall prescribe reasonable rules to\ngovern the right to make such recordings.\nIn its response to this office, the Board stated that it does not currently have a rule governing the\npublic' s right to record at its meetings and that it provides members of the public two minutes\n\neach to speak during the public comment portion of its meetings. The Board explained that\nduring the meeting in question, a heated exchange occurred when the Village Clerk informed\nthat he had 10 seconds remaining during his comments. The Board stated that Police\nChief Blasingame asked\nto stop record ing in \" an effort to de -escalate the\nsituation, in which\nbecame disruptive and unduly argumentative with the Village\n\nPresident\" over the time allotted for his public comment. 2\nThis office has reviewed an audio recording of the meeting in question. When the\nPolice Chief first told\n\nto stop recording,\n\nhe was \"done\" and that his \"time was up.\"\n\n1E- mail from\nDecember 10, 2023).\n\nasked why and was told\n\nstated he was not going to stop\n\nto Public Access Counselor, Office of the Attorney General\n\n2Letter from Drella C. Savage, Village Administrator/ Chief of Staff, Freedom of Information\nOfficer, Village of Olympia Fields, to Benjamin Silver, Assistant Attorney General, Office of the Attorney General,\nPublic Access Bureau ( January 9, 2024), at [ 2 ].\n\n\fMs. Drella C. Savage\nApril 26, 2024\nPage 3\nrecording, and the Police Chief re plied that he was \" done, take it out in the hallway.\"\n\nthen stated that he would not turn off his recording and apparently left the meeting. 3\n\nChief asked\n\nRegardless of the Board's public comment policy, it is undisputed that the Police\nto stop recording and that the Board has not prescribed any rules that\n\nwould limit\nright to record. Although there was a disagreement over the two minute time limit for public comment and\nbecame argumentative , the Board did\n\nnot demonstrate that he acted in an unruly manner or that his recording of the meeting actually\ninterfered with the orderly conduct of the proceedings. Indeed, it is unclear why the Board\nbelieves requiring\nto stop recording was necessary to \" de-escalate\" the\ndisagreement as the argument concerned\ndemand to continue speaking, not\nrecording.\n\nAbsent rules that could have restricted\nability to continue\nrecording, the police chief's instruction interfered with\nstatutory right to record\nthe meeting, even if the Board did not physically attempt to turn off his laptop device . By\nremaining silent during\n\ninteraction with the Police Chief, the Board effectively\n\nfacilitated the termination of his ability to record. Accordingly, this office concludes that the\nBoard violated section 2.05 of OMA. To remedy that violation ,the Public Access Bureau directs\nthe Board to permit members of the public to record its open meetings, subject only to the\nreasonable rules the Board may prescribe.\nAlthough the Board' s time limit on public comments was not the subject of review\n\nin this matter, the Office of the Public Access Counselor is charged with providing advice and\neducation to both public officials and the public. See 15 ILCS 205/7(a), (b), (c) (West 2022). To\nthat end, section 2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) (West 2022)) provides that \"[ a] ny person\nshall be permitted an opportunity to address public officials under the rules established and\nrecorded by the public body.\" The Attorney General has previously explained in a binding\n\nopinion that a public body may restrict public comment only pursuant to its established and\nrecorded rules, which must tend to accommodate, rather than unreasonably restrict, the right to\naddress public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14 -012, issued September 30, 2014, at\n6; see also Ill. Att' y Gen. Pub. Acc. Op. No. 19 -002, issued January 9, 2019 ( board improperly\n\nenforced a rule on public comment that was not established and recorded in violation of section\n2.06(g)). The Board stated that members of the public who wish to address the Board are given\nthe same two -minute directive, but it does not appear that the Board has established and recorded\nany rules regulating public comment.4 Indeed, the Board stated that its Village Code of\n3Village of Olympia Fields Board of Trustees, Meeting, November 8, 2023, Audio File, at\n2:33: 30 -2: 33: 50 (on file with Public Access Bureau).\n4See Code of Ordinances, Olympia Fields, IL, available at\nhttps:// library.municode. com/ il/olympia_ fields/ codes/ code_ of_ordinances , last accessed February 1, 2024.\n\n\fMs. Drella C. Savage\nApril 26, 2024\nPage 4\nOrdinance s is silent on the issue of a time limit. If the Board wishes to reasonably limit the\n\namount of time a member of the public may speak, it must establish and record such a rule.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin. silver@ilag. gov or ( 773) 590 -7878.\n\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n79291 o 205 improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Recording an open meeting of a village board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79291/","full_text":"April 26, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Drella C. Savage\nVillage Administrator\nVillage of Olympia Fields\n20040 Governors Highway\nOlympia Fields, Illinois 60461\n\ndsavage@olympia -fields.com\nRE: OMA Request for Review – 2023 PAC 79291\n\nDear\n\nand Ms. Savage:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Village of Olympia Fields Board of Trustees (Board) violated OMA\n\nby interfering with\nregular meeting.\n\nability to record the Board's November 8, 2023,\n\nBACKGROUND\nOn December 10, 2023,this office received\nRequest for Review\nalleging that, at the Board's November 8, 2023, meeting, he \"was ordered by Police Chief Derek\nBlessingame to stop recording the meeting. Ordering me to stop recording the meeting was a\nviolation of the Open Meetings Act. President Burke did not intervene. I sat d own, stopped\n\nrecording, and left the meeting.\" 1\n\nexplained that this interaction occurred during\n\nthe public comment portion of the meeting.\nOn December 13,2023,this office sent a copy of the Request for Review to the\nBoard and asked it to provide a written response to the allegation in\nRequest for\nReview, along with copies of its November 8, 2023, meeting minutes and any available\nrecordings. On January 9, 202 4, the Board responded. On January 10, 202 4, this office\n\nforwarded a copy of the Board's response to.\nOn January 9, 2024, and January\n10, 2024,\nreplied to the Board's response. He maintained that the Board failed to\nintervene when the police chief told him to stop recording.\nDETERMINATION\n\nSection 2.05 of OMA (5 ILCS 120/2.05 (West 2022)) provides:\nSubject to the provisions of Section 8 -701 of the Code of Civil\nProcedure, any person may record the proceedings at meetings\n\nrequired to be open by this Act by tape, film or other means. The\nauthority holding the meeting shall prescribe reasonable rules to\ngovern the right to make such recordings.\nIn its response to this office, the Board stated that it does not currently have a rule governing the\npublic's right to record at its meetings and that it provides members of the public two minutes\n\neach to speak during the public comment portion of its meetings. The Board explained that\nduring the meeting in question, a heated exchange occurred when the Village Clerk informed\nthat he had 10 seconds remaining during his comments. The Board stated that Police\nChief Blasingame asked\nto stop record ing in \" an effort to de -escalate the\nsituation, in which\nbecame disruptive and unduly argumentative with the Village\n\nPresident\" over the time allotted for his public comment. 2\nThis office has reviewed an audio recording of the meeting in question. When the\nPolice Chief first told\n\nto stop recording,\n\nhe was \"done\" and that his \"time was up.\"\n\n1E- mail from\nDecember 10, 2023).\n\nasked why and was told\n\nstated he was not going to stop\n\nto Public Access Counselor, Office of the Attorney General\n\n2 Letter from Drella C. Savage, Village Administrator/ Chief of Staff, Freedom of Information\nOfficer, Village of Olympia Fields, to Benjamin Silver, Assistant Attorney General, Office of the Attorney General,\n\nrecording, and the Police Chief re plied that he was \" done, take it out in the hallway.\"\n\nthen stated that he would not turn off his recording and apparently left the meeting. 3\n\nChief asked\n\nRegardless of the Board's public comment policy, it is undisputed that the Police\nto stop recording and that the Board has not prescribed any rules that\n\nwould limit\nright to record. Although there was a disagreement over the two minute time limit for public comment and\nbecame argumentative, the Board did\n\nnot demonstrate that he acted in an unruly manner or that his recording of the meeting actually\ninterfered with the orderly conduct of the proceedings. Indeed, it is unclear why the Board\nbelieves requiring\nto stop recording was necessary to \" de-escalate\" the\ndisagreement as the argument concerned\ndemand to continue speaking, not\nrecording.\n\nAbsent rules that could have restricted\nability to continue\nrecording, the police chief's instruction interfered with\nstatutory right to record\nthe meeting, even if the Board did not physically attempt to turn off his laptop device. By\nremaining silent during\n\ninteraction with the Police Chief, the Board effectively\n\nfacilitated the termination of his ability to record. Accordingly, this office concludes that the\nBoard violated section 2.05 of OMA. To remedy that violation,the Public Access Bureau directs\nthe Board to permit members of the public to record its open meetings, subject only to the\nreasonable rules the Board may prescribe.\nAlthough the Board's time limit on public comments was not the subject of review\n\nin this matter, the Office of the Public Access Counselor is charged with providing advice and\neducation to both public officials and the public. See 15 ILCS 205/7(a), (b), (c) (West 2022). To\nthat end, section 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)) provides that \"[ a] ny person\nshall be permitted an opportunity to address public officials under the rules established and\nrecorded by the public body.\" The Attorney General has previously explained in a binding\n\nopinion that a public body may restrict public comment only pursuant to its established and\nrecorded rules, which must tend to accommodate, rather than unreasonably restrict, the right to\naddress public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14 -012, issued September 30, 2014, at\n6; see also Ill. Att' y Gen. Pub. Acc. Op. No. 19 -002, issued January 9, 2019 (board improperly\n\nenforced a rule on public comment that was not established and recorded in violation of section\n2.06(g)). The Board stated that members of the public who wish to address the Board are given\nthe same two -minute directive, but it does not appear that the Board has established and recorded\nany rules regulating public comment.4 Indeed, the Board stated that its Village Code of\n3 Village of Olympia Fields Board of Trustees, Meeting, November 8, 2023, Audio File, at\n2:33: 30 -2: 33: 50 (on file with Public Access Bureau).\n4 See Code of Ordinances, Olympia Fields, IL, available at\nhttps:// library.municode. com/ il/olympia_ fields/ codes/ code_ of_ordinances, last accessed February 1, 2024.\n\nOrdinance s is silent on the issue of a time limit. If the Board wishes to reasonably limit the\n\namount of time a member of the public may speak, it must establish and record such a rule.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin. silver@ilag. gov or (773) 590 -7878.\n\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\nPublic Access Bureau\n79291 o 205 improper mun"}
{"id":1446,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-08-27","case_number":null,"request_numbers":["79396"],"title":"Oswego Library Board violated OMA by restricting unrecorded public comment","filename":"79396, issued August 27, 2024.pdf","rel_path":null,"word_count":2480,"summary":"A requester alleged that the Oswego Public Library District Board of Trustees violated the Open Meetings Act by restricting public comment at an October 2023 meeting without having established rules in place. The PAC determined that the Board violated OMA because it enforced a time limit on public comment despite lacking a formal, recorded policy at the time of the meeting.","plain_summary":"A library board limited a member of the public to three minutes of comment during a meeting, but the board's public comment policy, though adopted in 1998 and noted in meeting minutes, was not formally recorded in a way that satisfied the Open Meetings Act's requirement for established and recorded rules. The Attorney General's office ruled that this restriction violated the Act because the policy was not readily accessible to the public. The board later adopted a formal policy, but the determination did not order any specific further action.","holding":"The Oswego Public Library District Board of Trustees violated section 2.06(g) of the Open Meetings Act by restricting public comment without having established and recorded rules governing such comment.","legal_question":"Whether a public body violates section 2.06(g) of the Open Meetings Act by restricting public comment when it has not yet adopted established and recorded rules governing public comment.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Oswego Public Library District Board of Trustees","requesting_party":"Anonymous","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The restriction of public comment at a library board meeting in the absence of an established public comment policy.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/79396, issued August 27, 2024.pdf","sha256":"26d0d2e6c8589b5da74fc2eef0d3992d2a46d5313cdb4fb1d9f7b3b0a3c27407","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","library board","meeting rules"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"August 27, 2024\n\nVia electronic mail\n\nVia electronic mail\nMark A. Ritzman\nAttorney\nPeregrine, Stime, Newman, Ritzman & Bruckner, Ltd.\n221 East Illinois Street, P.O. Box 564\nWheaton, Illinois 60187- 0564\nmritzman@psnrb. com\nRE: OMA Request for Review – 2023 PAC 79396\nDear\n\nand Mr. Ritzman:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Oswego Public Library District ( District) Board of Trustees ( Board)\nimproperly restricted public comment at its October 25, 2023, meeting.\nOn December 18, 2023,\nsubmitted the above- referenced\nRequest for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS\n120/ 2.06(g) (West 2022)) by improperly restricting public comments at its October 25, 2023,\nmeeting. Specifically,\nalleged that a member of the public was prevented from\nproviding public comment beyond three minutes at a time when the Board did not have\nestablished and recorded rules governing public comment.\nenclosed a copy of a\nresponse from the District to a Freedom of Information Act (FOIA) request he submitted, in\nwhich the District stated that it had no public comment policy.\n\n\fMark A. Ritzman\nAugust 27, 2024\nPage 2\nOn January 3, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its established and recorded rules for\npublic comment, the meeting minutes and any recording of the open session of the October 25,\n2023, meeting, and a written response to the OMA allegation in\nRequest for\nReview. On January 11, 2024, this office received the Board' s written response together with\ncopies of the October 25, 2023, meeting agenda, 1 minutes, 2 and open session video recording. 3\nIn addition, the Board provided this office with a copy of the meeting minutes from an April 22,\n1998, Board meeting 4 and Public Comment Policy5 adopted by the Board after its receipt of\nRequest for Review on November 15, 2023. On January 12, 2024, this office\nforwarded a copy of the Board' s written response to\ncounsel for\nsubmitted a written reply on February 7, 2024. 6\nDETERMINATION\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14-012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, at 6. The plain language of section 2.06(g) requires that the rules governing public\ncomment not only be \" established\" but also \" recorded\" by the public body. \" Nothing in OMA\nsuggests that past practices which have not been formally incorporated into a public body' s rules\nare established and recorded by the public body within the meaning of section 2.06(g), and may\nbe enforced to limit public comment.\" Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January\n9, 2019, at 6 (policy restricting public comments to three minutes per person was established and\nrecorded because it was formally adopted and incorporated into board' s formal policy manual,\nbut policy restricting the total public comment time to 15 minutes in \"Welcome Handout\" set out\n\n1Oswego Public Library District Board of Trustees, Agenda ( October 25, 2023).\n2Oswego Public Library District Board of Trustees, Meeting, October 25, 2023, Minutes.\n3Oswego Public Library District, October 25, 2023, Board of Trustees Meeting, YouTube\nOctober 25, 2023), https:// www.youtube. com/ watch?v=C536VeJ22Gw.\n4Oswego Public Library District Board of Trustees, Meeting, April 22, 1998, Minutes.\n5Oswego Public Library District, Public Comment Policy ( adopted November 15, 2023).\nwritten reply is dated January 29, 2024, however, this office received the reply on\nFebruary 7, 2024, due to an e-mail address discrepancy.\n\n\fMark A. Ritzman\nAugust 27, 2024\nPage 3\nbefore each meeting was not because it was not included in the policy manual and board did not\nclaim to have taken formal action to adopt it).\nWhen construing the meaning of a statutory provision, the primary objective is to\nascertain the intent of legislature. DeLuna v. Burciaga, 223 Ill. 2d. 49, 59 (2006). \" The plain\nlanguage of the statute is the best indication of that intent, and if that language is clear an\nunambiguous, it must be given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24. Because\nOMA does not define either \" established\" or \"recorded,\" the terms must be given their ordinary\nand popularly understood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL\n117021, ¶ 15. The dictionary can be used as a resource to ascertain the ordinary and popular\nmeaning of words. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47.\nBlack' s Law Dictionary defines \" establish\" as: \" To settle, make, or fix firmly; to enact\npermanently.\" Black' s Law Dictionary 688 ( 11th ed. 2019). \" Enact\" is defined as \"[ t]o make\ninto law by authoritative act; to pass.\" Black' s Law Dictionary 666 ( 11th ed. 2019). To \" record\"\nis defined as \"[ t]o deposit ( an original or authentic official copy of a document) with an\nauthority.\" Black' s Law Dictionary 1527 ( 11th ed. 2019).\nIn its response to this office, the Board argued that it had established and recorded\nrules governing public comment at the time of its October 25, 2023, meeting. Referencing the\nApril 22, 1998, meeting minutes provided to this office, the Board stated:\nThe Board reviewed a draft of rules for public comment at\nits April 22, 1998, Board meeting. The Board approved those rules\nby a voice vote of 7-0, thereby establishing the rules for public\ncomment. The Board then recorded those rules for public\ncomment in its approved minutes for the April 22, 1998 meeting.\n\nThe Board included these rules for public comment in its\npublished agendas over the course of the next twenty- five (25)\nyears as part of its regular custom and practice and held public\ncomment under said rules largely without incident. However, at\nsome point in 2023 the Board \" waffled\" between a three ( 3) minute\nand five (5) minute time limit for each speaker in its published\nBoard agendas with no formal action taken to effectuate any\nchange. [ Citation.][ 7]\n\n7Letter from Mark Ritzman to Matthew G. Goodman, Assistant Attorney General, Public Access\nBureau, Office of the Illinois Attorney General ( January 11, 2024), at 2.\n\n\fMark A. Ritzman\nAugust 27, 2024\nPage 4\nThe Board stated that the agendas for its September 27, 2023, October 25, 2023,\nand November 15, 2023, meetings provided a three- minute time limit for each speaker. On the\nother hand, the Board acknowledged that the agendas for its January 25, 2023, February 22,\n2023, March 15, 2023, April 26, 2023, May 24, 2023, June 28, 2023, and August 23, 2023,\nmeetings provided a five-minute time limit for each speaker. The Board indicated that at the\nOctober 25, 2023, meeting, the Board President read aloud the rules for public comment directly\nfrom the published agenda, which included a three- minute time limit. The Board also stated that\nat its November 15, 2023, meeting, the Board formally adopted and approved a Public Comment\nPolicy and provided this office with a copy. The Board argued that the evidence reflects that it\nmade a good faith effort to allow members of the public to appropriately address its members at\nits October 25, 2023, meeting.\nIn reply,\nlegal counsel explained that\nRequest for\nReview stemmed from his impression from previous meetings that the Board had departed from\nits regular practice of allowing five minutes per speaker based on the contents of the remarks\nbeing made by the public:\nThe District has now responded to you claiming it passed a motion\nin 1998 to print a public comment policy on each of its agendas.\nThat policy, ( which was not, in fact, printed on all agendas since\n1998), indicated that public comment would be limited to three\nminutes. While the District admits that it \"waffled at some point in\n2023\" in the enforcement of the three- minute limit, in fact the\nBoard routinely permitted comments for five minutes on all\nmeeting agendas since January 2019 through August 2023, as\nwell as for several meetings in 2017 and 2018. See attached\nagendas.\n\nNormally, a public body that permits speakers to address it\nfor longer periods of time during public comment is commendable\nand promotes the OMA's intent of allowing interested members of\nthe public to express their opinions and concerns. If the District\nwere applying the longer limit uniformly without regard to the\ncontent of the speakers, the practice could perhaps be defensible,\neven if it violates its own time limit, as well as the OMA' s\nrequirement that a Board permit public comment in accordance\nwith its rules. [ Citation.] Now, however, the District has suddenly\nand selectively elected to strictly restrict speakers to three minutes\n\n\fMark A. Ritzman\nAugust 27, 2024\nPage 5\nper speaker against people who engage in speech that the District\ndoes not like. (Emphasis in original.)[ 8]\nThis office has reviewed the video recording of the public comment portion of the\nBoard' s October 25, 2023, meeting, 9 the Board' s April 22, 1998, meeting minutes, the Board' s\nagendas from 2023, and the public comment statement on the Board' s October 25, 2023, agenda.\nThe minutes of the April 22, 1998 meeting show the Board approved a \"' public comment'\nstatement for inclusion on the agendas each month\", which limited public comment to three\nminutes per speaker. 10 This office's review of the video recording confirmed that a total of six\nmembers of the public spoke during the public comment period. Four members of the public\nexceeded the three minute time limit and the Board President did not admonish these speakers, in\ncontrast to the member of the public at issue in\nRequest for Review who was\nadmonished by the Board President that his time was up at three minutes. 11 Although the Board\nmay have \" established\" a public comment policy at its April 22, 1998, meeting by voting to\nadopt the policy under consideration at the meeting, the Board did not demonstrate that it\nrecorded\" the policy within the meaning of section 2.06(g). The Board argued that it recorded\nthe policy by documenting the vote to adopt the policy in meeting minutes, but the Board notably\ndid not claim that it ever incorporated the text of the policy itself into its bylaws or formal policy\nmanual, or post it on its website or make it available as a standalone document or within a\ncollection of rules. A rule that is established and recorded in such a formal rulebook or made\nreadily accessible on a public body' s website or at its office provides certainty and clarity to the\npublic by allowing the public to consult the collected rules for a definitive answer as to what they\nrequire. In contrast, the Board' s answer to this office indicates that a member of the public\nwishing to ascertain whether the Board had established and recorded public comment rules at the\ntime of its October 25, 2023, meeting would have had to review more than 25 years of minutes\nworking backwards before arriving at the April 22, 1998, minutes reflecting the vote on the\npublic comment policy. Such an effort should not be necessary to identify a public body' s public\ncomment rules, given the requirement that the rules be established and recorded. Furthermore,\nthe Board' s acknowledgment that it \"waffled\" between three and five minutes per speaker at\nvarious meetings prior to the October 25, 2023, meeting suggests a lack of clarity on behalf of\nthe Board with respect to what if any rules were actually in place. No such ambiguity would\nhave existed if the rules were recorded.\n8Letter from Yevgeniy Bolotnikov to Matt Goodman, Assistant Attorney General, Public Access\nBureau ( January 29, 2024), at 2-3.\n9Oswego Public Library District, October 25, 2023, Board of Trustees Meeting, YouTube at\n1:10:13 – 1:32:30 (October 25, 2023), https:// www.youtube. com/watch?v=C536VeJ22Gw.\n10Oswego Public Library District Board of Trustees, Meeting, April 22, 1998, Minutes 2.\n11Oswego Public Library District, October 25, 2023, Board of Trustees Meeting, YouTube at\n1:32: 19 ( October 25, 2023), https:// www. youtube. com/ watch? v=C536VeJ22Gw.\n\n\fMark A. Ritzman\nAugust 27, 2024\nPage 6\n\nTherefore, this office concludes that the Board did not have recorded public\ncomment rules at the time of its October 25, 2023, meeting. Absent such rules, the Board lacked\nthe necessary basis to restrict the time of any public speaker to three minutes. Accordingly, the\nBoard violated section 2.06(g) of OMA when it limited a speaker' s comments in that manner at\nits October 25, 2023, meeting. However, because the Board has now adopted a written public\ncomment policy and included it in the collection of library policies on the District' s website, 12\nthis office concludes that no further corrective action is required. 13\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at matthew. goodman@ilag. gov.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n79396 o 206g pub comment improper lib\n\n12Oswego Public Library District, Library Policies, https:// www.oswego. lib.il.us/about- us/librarypolicies/.\n13In his reply,\nasked that this office find that the District violated FOIA because of\nthe District' s late response to his request. The Public Access Bureau may only find a violation of FOIA when a\nrequester submits a Request for Review under section 9.5(a) of FOIA (5 ILCS 140/9.5(a) ( West 2023 Supp.)), which\ndid not do here.\nalso asked this office to admonish the Board to establish a time limit\nfor public comment that is uniformly applied to all speakers regardless of content, but the Board established a formal\nPublic Comment Policy on November 15, 2023, that has uniform rules.\nfurther requested that this\noffice direct the Board to remove sections of that newly- adopted Public Comment Policy, but this Request for\nReview is limited to analyzing\ns allegations concerning the October 25, 2023, meeting. In the event\nthe Board applies the Public Comment Policy in a manner that unduly restricts public comment, a Request for\nReview of that alleged violation may be submitted at that time.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Restriction of public comment at a library board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79396/","full_text":"August 27, 2024\n\nVia electronic mail\n\nVia electronic mail\nMark A. Ritzman\nAttorney\nPeregrine, Stime, Newman, Ritzman & Bruckner, Ltd.\n221 East Illinois Street, P.O. Box 564\nWheaton, Illinois 60187- 0564\nmritzman@psnrb. com\nRE: OMA Request for Review – 2023 PAC 79396\nDear\n\nand Mr. Ritzman:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the Oswego Public Library District (District) Board of Trustees (Board)\nimproperly restricted public comment at its October 25, 2023, meeting.\nOn December 18, 2023,\nsubmitted the above- referenced\nRequest for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS\n120/ 2.06(g) (West 2022)) by improperly restricting public comments at its October 25, 2023,\nmeeting. Specifically,\nalleged that a member of the public was prevented from\n\nOn January 3, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its established and recorded rules for\npublic comment, the meeting minutes and any recording of the open session of the October 25,\n2023, meeting, and a written response to the OMA allegation in\nRequest for\nReview. On January 11, 2024, this office received the Board's written response together with\ncopies of the October 25, 2023, meeting agenda, 1 minutes, 2 and open session video recording. 3\nIn addition, the Board provided this office with a copy of the meeting minutes from an April 22,\n1998, Board meeting 4 and Public Comment Policy5 adopted by the Board after its receipt of\nRequest for Review on November 15, 2023. On January 12, 2024, this office\nforwarded a copy of the Board's written response to\ncounsel for\nsubmitted a written reply on February 7, 2024. 6\nDETERMINATION\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14-012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, at 6. The plain language of section 2.06(g) requires that the rules governing public\ncomment not only be \" established\" but also \" recorded\" by the public body. \" Nothing in OMA\nsuggests that past practices which have not been formally incorporated into a public body's rules\nare established and recorded by the public body within the meaning of section 2.06(g), and may\nbe enforced to limit public comment.\" Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January\n9, 2019, at 6 (policy restricting public comments to three minutes per person was established and\nrecorded because it was formally adopted and incorporated into board's formal policy manual,\nbut policy restricting the total public comment time to 15 minutes in \"Welcome Handout\" set out\n\n1 Oswego Public Library District Board of Trustees, Agenda (October 25, 2023).\n2 Oswego Public Library District Board of Trustees, Meeting, October 25, 2023, Minutes.\n3 Oswego Public Library District, October 25, 2023, Board of Trustees Meeting, YouTube\n\nbefore each meeting was not because it was not included in the policy manual and board did not\nclaim to have taken formal action to adopt it).\nWhen construing the meaning of a statutory provision, the primary objective is to\nascertain the intent of legislature. DeLuna v. Burciaga, 223 Ill. 2d. 49, 59 (2006). \" The plain\nlanguage of the statute is the best indication of that intent, and if that language is clear an\nunambiguous, it must be given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24. Because\nOMA does not define either \" established\" or \"recorded,\" the terms must be given their ordinary\nand popularly understood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL\n117021, ¶ 15. The dictionary can be used as a resource to ascertain the ordinary and popular\nmeaning of words. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47.\nBlack's Law Dictionary defines \" establish\" as: \" To settle, make, or fix firmly; to enact\npermanently.\" Black's Law Dictionary 688 (11th ed. 2019). \" Enact\" is defined as \"[ t]o make\ninto law by authoritative act; to pass.\" Black's Law Dictionary 666 (11th ed. 2019). To \" record\"\nis defined as \"[ t]o deposit (an original or authentic official copy of a document) with an\nauthority.\" Black's Law Dictionary 1527 (11th ed. 2019).\nIn its response to this office, the Board argued that it had established and recorded\nrules governing public comment at the time of its October 25, 2023, meeting. Referencing the\nApril 22, 1998, meeting minutes provided to this office, the Board stated:\nThe Board reviewed a draft of rules for public comment at\nits April 22, 1998, Board meeting. The Board approved those rules\nby a voice vote of 7-0, thereby establishing the rules for public\ncomment. The Board then recorded those rules for public\ncomment in its approved minutes for the April 22, 1998 meeting.\n\nThe Board included these rules for public comment in its\npublished agendas over the course of the next twenty- five (25)\nyears as part of its regular custom and practice and held public\ncomment under said rules largely without incident. However, at\nsome point in 2023 the Board \" waffled\" between a three (3) minute\n\nThe Board stated that the agendas for its September 27, 2023, October 25, 2023,\nand November 15, 2023, meetings provided a three- minute time limit for each speaker. On the\nother hand, the Board acknowledged that the agendas for its January 25, 2023, February 22,\n2023, March 15, 2023, April 26, 2023, May 24, 2023, June 28, 2023, and August 23, 2023,\nmeetings provided a five-minute time limit for each speaker. The Board indicated that at the\nOctober 25, 2023, meeting, the Board President read aloud the rules for public comment directly\nfrom the published agenda, which included a three- minute time limit. The Board also stated that\nat its November 15, 2023, meeting, the Board formally adopted and approved a Public Comment\nPolicy and provided this office with a copy. The Board argued that the evidence reflects that it\nmade a good faith effort to allow members of the public to appropriately address its members at\nits October 25, 2023, meeting.\nIn reply,\nlegal counsel explained that\nRequest for\nReview stemmed from his impression from previous meetings that the Board had departed from\nits regular practice of allowing five minutes per speaker based on the contents of the remarks\nbeing made by the public:\nThe District has now responded to you claiming it passed a motion\nin 1998 to print a public comment policy on each of its agendas.\nThat policy, (which was not, in fact, printed on all agendas since\n1998), indicated that public comment would be limited to three\nminutes. While the District admits that it \"waffled at some point in\n2023\" in the enforcement of the three- minute limit, in fact the\nBoard routinely permitted comments for five minutes on all\nmeeting agendas since January 2019 through August 2023, as\nwell as for several meetings in 2017 and 2018. See attached\nagendas.\n\nNormally, a public body that permits speakers to address it\nfor longer periods of time during public comment is commendable\nand promotes the OMA's intent of allowing interested members of\nthe public to express their opinions and concerns. If the District\nwere applying the longer limit uniformly without regard to the\n\nper speaker against people who engage in speech that the District\ndoes not like. (Emphasis in original.)[ 8]\nThis office has reviewed the video recording of the public comment portion of the\nBoard's October 25, 2023, meeting, 9 the Board's April 22, 1998, meeting minutes, the Board's\nagendas from 2023, and the public comment statement on the Board's October 25, 2023, agenda.\nThe minutes of the April 22, 1998 meeting show the Board approved a \"' public comment'\nstatement for inclusion on the agendas each month\", which limited public comment to three\nminutes per speaker. 10 This office's review of the video recording confirmed that a total of six\nmembers of the public spoke during the public comment period. Four members of the public\nexceeded the three minute time limit and the Board President did not admonish these speakers, in\ncontrast to the member of the public at issue in\nRequest for Review who was\nadmonished by the Board President that his time was up at three minutes. 11 Although the Board\nmay have \" established\" a public comment policy at its April 22, 1998, meeting by voting to\nadopt the policy under consideration at the meeting, the Board did not demonstrate that it\nrecorded\" the policy within the meaning of section 2.06(g). The Board argued that it recorded\nthe policy by documenting the vote to adopt the policy in meeting minutes, but the Board notably\ndid not claim that it ever incorporated the text of the policy itself into its bylaws or formal policy\nmanual, or post it on its website or make it available as a standalone document or within a\ncollection of rules. A rule that is established and recorded in such a formal rulebook or made\nreadily accessible on a public body's website or at its office provides certainty and clarity to the\npublic by allowing the public to consult the collected rules for a definitive answer as to what they\nrequire. In contrast, the Board's answer to this office indicates that a member of the public\nwishing to ascertain whether the Board had established and recorded public comment rules at the\ntime of its October 25, 2023, meeting would have had to review more than 25 years of minutes\nworking backwards before arriving at the April 22, 1998, minutes reflecting the vote on the\npublic comment policy. Such an effort should not be necessary to identify a public body's public\ncomment rules, given the requirement that the rules be established and recorded. Furthermore,\nthe Board's acknowledgment that it \"waffled\" between three and five minutes per speaker at\nvarious meetings prior to the October 25, 2023, meeting suggests a lack of clarity on behalf of\nthe Board with respect to what if any rules were actually in place. No such ambiguity would\nhave existed if the rules were recorded.\n8 Letter from Yevgeniy Bolotnikov to Matt Goodman, Assistant Attorney General, Public Access\nBureau (January 29, 2024), at 2-3.\n\nTherefore, this office concludes that the Board did not have recorded public\ncomment rules at the time of its October 25, 2023, meeting. Absent such rules, the Board lacked\nthe necessary basis to restrict the time of any public speaker to three minutes. Accordingly, the\nBoard violated section 2.06(g) of OMA when it limited a speaker's comments in that manner at\nits October 25, 2023, meeting. However, because the Board has now adopted a written public\ncomment policy and included it in the collection of library policies on the District's website, 12\nthis office concludes that no further corrective action is required. 13\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at matthew. goodman@ilag. gov.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n79396 o 206g pub comment improper lib\n\n12 Oswego Public Library District, Library Policies, https:// www.oswego. lib.il.us/about- us/librarypolicies/.\n13 In his reply,\nasked that this office find that the District violated FOIA because of\nthe District's late response to his request. The Public Access Bureau may only find a violation of FOIA when a\nrequester submits a Request for Review under section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)), which\ndid not do here.\nalso asked this office to admonish the Board to establish a time limit\nfor public comment that is uniformly applied to all speakers regardless of content, but the Board established a formal\nPublic Comment Policy on November 15, 2023, that has uniform rules.\nfurther requested that this\noffice direct the Board to remove sections of that newly- adopted Public Comment Policy, but this Request for\nReview is limited to analyzing\ns allegations concerning the October 25, 2023, meeting. In the event\nthe Board applies the Public Comment Policy in a manner that unduly restricts public comment, a Request for\nReview of that alleged violation may be submitted at that time."}
{"id":1447,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-02-29","case_number":null,"request_numbers":["79408"],"title":"Village of Lisle Board of Trustees did not violate OMA by destroying closed session recordings after approving minutes","filename":"79408, issued Feb 29, 2024.pdf","rel_path":null,"word_count":1223,"summary":"A requester alleged that the Village of Lisle Board of Trustees violated the Open Meetings Act by voting to destroy closed session verbatim recordings before approving the corresponding minutes. The PAC determined that because the Board approved the minutes prior to the actual destruction of the recordings, no violation occurred.","plain_summary":"A citizen complained that a village board voted to destroy audio recordings of closed meetings before officially approving the written minutes for those meetings. The Attorney General's office investigated and found that while the board voted to destroy the recordings first, they did in fact approve the written minutes before the recordings were actually deleted. Therefore, the board followed the law and no violation occurred.","holding":"The Village of Lisle Board of Trustees did not violate the Open Meetings Act because it approved the closed session minutes before the verbatim recordings were destroyed.","legal_question":"Whether a public body violates section 2.06(c) of the Open Meetings Act by voting to destroy closed session verbatim recordings before formally approving the minutes of those sessions.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Lisle Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The destruction of verbatim audio recordings of closed session meetings.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_c/79408, issued Feb 29, 2024.pdf","sha256":"7aa5f7f429cb0f40fdd3e3e33ff1ba9c915db98f10d3a505d197d669a5801c8e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","verbatim recordings","meeting minutes","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY\nSTATE\n\nKWAME\n\nRAOUL\n\nA [ IORNET (\n\nii-NFRAt\n\nGENERAL\n\nOF ILLINOIS\n\nFebruary 29, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Eric Ertmoed\nVillage Manager\nVillage of Lisle\n925 Burlington Avenue\nLisle, Illinois 60532\neertmoed@villageoflisle.\nRE:\n\norg\n\nOMA Request\n\nfor Review — 2023 PAC 79408\n\nand Mr. Ertmoed:\n\nDear\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA). l For the reasons explained below, the Public Access Bureau concludes that the Board\nof Trustees ( Board) of the Village of Lisle ( Village) did not violate OMA.\nIn her Request for Review,\n\nalleged that the Board violated\n\nsection 2. 06( c) of OMA2 during its December 18, 2023, meeting when the Board voted to\ndestroy its February 21, 2022, March 7, 2022, April 4, 2022, April 18, 2022, May 2, 2022, and\n\nMay 16, 2022, closed session verbatim recordings before approving the minutes from those\nclosed meetings.\n\nOn January 9, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond in writing, specifically addressing whether the Board voted to\n51LCS 120/ 3. 5( e) ( West 2022).\n\n25 ILCS 120/ 2. 06( c) ( West 2022).\n\n1( 1t sinrat : nil Suva\nSpringfield,\n\nIS Sltuth Irlalk Struct Chicago.\n\nnlinni% 62701\n\n21717R2- 11190 • Fax ( 217 782- 7046 1\nduals with hcarutg . n\n\nfllinnv. 6060\n\n1414- 1O00• Fsx\n\n0120114- 04(I6 1745lu,\n\napevelt dt+\nabiIini' scan' rach u,by wan!: th. 7- I- 1 ' clay\nMinot\n\nkAttorninCiencraLyn.\n\nu\n\n612)\n\nuinRt Un>\nic,Stine Ciabondt\n\nle_\nMimic 629(13 i.)$)\n529-\n\n6400• Fax ( 61# 11 5294 16 Indn'\nsell Ire wan\n\n\fMr. Eric Ertmoed\n\nFebruary 29, 2024\nPage 2\n\napprove the written minutes of the relevant closed sessions in accordance with section 2. 06( c)\n\nbefore destroying the verbatim recordings at issue. If so, this office asked the Board to provide\ncopies of the agenda and minutes for the meetings\n\nin which the closed session minutes were\n\napproved. On January 23, 2024, the Board submitted, among other things, a written answer, a\nweb link to view the Board' s January 8, 2024, meeting, 3 and a copy of the agenda for that\n\nmeeting. On January 24, 2024, this office forwarded a copy of the Board's answer to\nshe replied on January 25, 2024. On February 14, 2024, via e- mail with an Assistant Attorney\nGeneral ( AAG) in the Public Access Bureau, the Village clarified certain aspects of its written\nanswer.\n\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 ( West 2022). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell\n\nv.\n\nHogan, 179 Ill. App. 3d 161, 171 ( 1989).\n\nSection 2. 06( c) of OMA provides:\nc) The verbatim record may be destroyed without\nnotification\n\nto or the approval of a records commission\n\nor the State\n\nArchivist under the Local Records Act or the State Records Act no\n\nless than 18 months after the completion of the meeting recorded\nbut only after:\n1)\n\nthe public body approves the destruction of a\nparticular recording; and\n2)\n\nthe public body approves minutes of the closed\nmeeting that meet the written minutes requirements of\nsubsection ( a)\n\nof this Section. ( Emphasis added.)\n\nIn its answer to this office, the Board confirmed that during its December 18, 2023, meeting, the\nBoard approved \" Resolution 2023- 4418, A Resolution Authorizing the Destruction of Certain\nClosed Session Verbatim Recordings ofMeetings Occurring Between February 21, 2022 and\n\n3Village of Lisle Board of Trustees, January 8, 2024, Board Meeting, YouTube ( January 8, 2024),\nhttps:// www.youtube.com/watch?v=cKOKJiP9z0A.\n\nOffice of the Illinois Attorney General\n\n\fMr. Eric Ertmoed\n\nFebruary 29, 2024\nPage 3\n\nMay 16, 2022. i4 The Board' s answer to this office did not dispute allegation that the\nBoard had not yet approved the relevant closed session meeting minutes as of December 18,\n2023, when it voted on the motion to authorize the destruction\n\nof the verbatim\n\nrecordings.\n\nHowever, the Board' s response stated that it voted to approve the relevant closed session meeting\n\nminutes during the open session portion of its January 8, 2024, meeting, which is supported by\nthe agenda and recording of that meeting. On February 14, 2024, the Village informed an AAG\nthat the verbatim recordings were not destroyed until January 9, 2024.\nreplied to the Board's response, in pertinent part, by reiterating that the\nBoard' s failure to first vote to approve the closed session minutes before approving the\ndestruction\nshe\n\nargued\n\nof the verbatim recordings\nthat the \"[\n\nat issue was a violation of section 2. 06( c) of OMA, and\n\na] pproval of the closed minutes after -the -fact is not permitted by statute as\n\na method to authorize destruction of closed meeting records. i5\nThe plain language of section 2. 06( c), however, requires that prior to destruction\n\nof a closed session verbatim recording, a public body must vote to approve destruction of the\nrecording and vote to approve the written minutes of that closed session. See Buonauro v. City\nof Berwyn, No. 08- C- 6687 ( N. D. Ill. Aug. 25, 2011) (\" OMA permit[ s] the destruction of [closed\nsession verbatim]\n\nrecordings\n\nwithout notification\n\neighteen months after the completion\n\nof the\n\nrecorded meeting, provided that the public body approves the destruction and adequate minutes\nof the meeting have been taken and approved.\").\nTherefore, if a public body destroys the\nverbatim recording of a closed session before following the procedures set forth in both sections\n2. 06( c)( 1) and 2. 06( c)( 2) of OMA, the destruction\n\nOn December\n\nwould violate section 2. 06( c).\n\n18, 2023, the Board voted to approve the destruction\n\nof the\n\nrecordings as required by section 2. 06( c)( 1) of OMA; on January 8, 2024, the Board approved\n\nthe corresponding closed session minutes, as required by section 2. 06( c)( 2) of OMA; and on\nJanuary 9, 2024, the Board destroyed the verbatim recordings. Because the Board approved the\nclosed session minutes before destroying the recordings, it is immaterial that the vote to destroy\nthe recordings preceded the vote to approve the minutes. Accordingly, this office concludes that\nthe Board did not violate section 2. 06( c) of OMA under these circumstances.\n\n4Letter from Eric Ertmoed, Village Manager, Village of Lisle, to Shannon Bamaby, Senior\nAssistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General ( January 23, 2024),\nattaching Resolution 2023- 4418.\n5E- mail from\n\nI to [ Shannon] Bar[ n] aby (January 25, 2024).\n\nOffice of the Illinois Attorney General\n\n\fMr. Eric Ertmoed\nFebruary 29, 2024\nPage4\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. Jf you have any\nquestions, my e-mail addres is Shannon.Barnaby ilag.gov.\nVery truly yours,\n\nSenior Assistant Attorney General\nPublic Access Bureau\n79408 o 206c proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Destruction of closed-session audio recordings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79408/","full_text":"OFFICE OF THE ATTORNEY\nSTATE\n\nKWAME\n\nRAOUL\n\nA [ IORNET (ii-NFRAt\n\nGENERAL\n\nOF ILLINOIS\n\nFebruary 29, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nMr. Eric Ertmoed\nVillage Manager\nVillage of Lisle\n925 Burlington Avenue\nLisle, Illinois 60532\neertmoed@villageoflisle.\nRE:\n\norg\n\nOMA Request\n\nfor Review — 2023 PAC 79408\n\nand Mr. Ertmoed:\n\nDear\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA). l For the reasons explained below, the Public Access Bureau concludes that the Board\nof Trustees (Board) of the Village of Lisle (Village) did not violate OMA.\nIn her Request for Review,\n\nalleged that the Board violated\n\nsection 2. 06(c) of OMA2 during its December 18, 2023, meeting when the Board voted to\ndestroy its February 21, 2022, March 7, 2022, April 4, 2022, April 18, 2022, May 2, 2022, and\n\nMay 16, 2022, closed session verbatim recordings before approving the minutes from those\nclosed meetings.\n\nOn January 9, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond in writing, specifically addressing whether the Board voted to\n51LCS 120/ 3. 5(e) (West 2022).\n\n25 ILCS 120/ 2. 06(c) (West 2022).\n\n1(1t sinrat: nil Suva\nSpringfield,\n\nIS Sltuth Irlalk Struct Chicago.\n\nnlinni% 62701\n\n21717R2- 11190 • Fax (217 782- 7046 1\nduals with hcarutg. n\n\nfllinnv. 6060\n\n1414- 1O00• Fsx\n\n0120114- 04(I6 1745lu,\n\napevelt dt+\nabiIini' scan' rach u,by wan!: th. 7- I- 1 ' clay\nMinot\n\nkAttorninCiencraLyn.\n\nu\n\n612)\n\nuinRt Un>\nic,Stine Ciabondt\n\napprove the written minutes of the relevant closed sessions in accordance with section 2. 06(c)\n\nbefore destroying the verbatim recordings at issue. If so, this office asked the Board to provide\ncopies of the agenda and minutes for the meetings\n\nin which the closed session minutes were\n\napproved. On January 23, 2024, the Board submitted, among other things, a written answer, a\nweb link to view the Board's January 8, 2024, meeting, 3 and a copy of the agenda for that\n\nmeeting. On January 24, 2024, this office forwarded a copy of the Board's answer to\nshe replied on January 25, 2024. On February 14, 2024, via e- mail with an Assistant Attorney\nGeneral (AAG) in the Public Access Bureau, the Village clarified certain aspects of its written\nanswer.\n\nDETERMINATION\n\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2022). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell\n\nv.\n\nHogan, 179 Ill. App. 3d 161, 171 (1989).\n\nSection 2. 06(c) of OMA provides:\nc) The verbatim record may be destroyed without\nnotification\n\nto or the approval of a records commission\n\nor the State\n\nArchivist under the Local Records Act or the State Records Act no\n\nless than 18 months after the completion of the meeting recorded\nbut only after:\n1)\n\nthe public body approves the destruction of a\nparticular recording; and\n2)\n\nthe public body approves minutes of the closed\nmeeting that meet the written minutes requirements of\nsubsection (a)\n\nof this Section. (Emphasis added.)\n\nIn its answer to this office, the Board confirmed that during its December 18, 2023, meeting, the\nBoard approved \" Resolution 2023- 4418, A Resolution Authorizing the Destruction of Certain\nClosed Session Verbatim Recordings ofMeetings Occurring Between February 21, 2022 and\n\n3 Village of Lisle Board of Trustees, January 8, 2024, Board Meeting, YouTube (January 8, 2024),\n\nMay 16, 2022. i4 The Board's answer to this office did not dispute allegation that the\nBoard had not yet approved the relevant closed session meeting minutes as of December 18,\n2023, when it voted on the motion to authorize the destruction\n\nof the verbatim\n\nrecordings.\n\nHowever, the Board's response stated that it voted to approve the relevant closed session meeting\n\nminutes during the open session portion of its January 8, 2024, meeting, which is supported by\nthe agenda and recording of that meeting. On February 14, 2024, the Village informed an AAG\nthat the verbatim recordings were not destroyed until January 9, 2024.\nreplied to the Board's response, in pertinent part, by reiterating that the\nBoard's failure to first vote to approve the closed session minutes before approving the\ndestruction\nshe\n\nargued\n\nof the verbatim recordings\nthat the \"[\n\nat issue was a violation of section 2. 06(c) of OMA, and\n\na] pproval of the closed minutes after -the -fact is not permitted by statute as\n\na method to authorize destruction of closed meeting records. i5\nThe plain language of section 2. 06(c), however, requires that prior to destruction\n\nof a closed session verbatim recording, a public body must vote to approve destruction of the\nrecording and vote to approve the written minutes of that closed session. See Buonauro v. City\nof Berwyn, No. 08- C- 6687 (N. D. Ill. Aug. 25, 2011) (\" OMA permit[ s] the destruction of [closed\nsession verbatim]\n\nrecordings\n\nwithout notification\n\neighteen months after the completion\n\nof the\n\nrecorded meeting, provided that the public body approves the destruction and adequate minutes\nof the meeting have been taken and approved.\").\nTherefore, if a public body destroys the\nverbatim recording of a closed session before following the procedures set forth in both sections\n2. 06(c)(1) and 2. 06(c)(2) of OMA, the destruction\n\nOn December\n\nwould violate section 2. 06(c).\n\n18, 2023, the Board voted to approve the destruction\n\nof the\n\nrecordings as required by section 2. 06(c)(1) of OMA; on January 8, 2024, the Board approved\n\nthe corresponding closed session minutes, as required by section 2. 06(c)(2) of OMA; and on\nJanuary 9, 2024, the Board destroyed the verbatim recordings. Because the Board approved the\nclosed session minutes before destroying the recordings, it is immaterial that the vote to destroy\nthe recordings preceded the vote to approve the minutes. Accordingly, this office concludes that\nthe Board did not violate section 2. 06(c) of OMA under these circumstances.\n\n4 Letter from Eric Ertmoed, Village Manager, Village of Lisle, to Shannon Bamaby, Senior\nAssistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (January 23, 2024),\nattaching Resolution 2023- 4418.\n5E- mail from\n\nI to [ Shannon] Bar[ n] aby (January 25, 2024).\n\nOffice of the Illinois Attorney General\n\nMr. Eric Ertmoed\nFebruary 29, 2024\nPage4\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. Jf you have any\nquestions, my e-mail addres is Shannon.Barnaby ilag.gov.\nVery truly yours,\n\nSenior Assistant Attorney General\nPublic Access Bureau\n79408 o 206c proper mun"}
{"id":1448,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-09-10","case_number":null,"request_numbers":["79466"],"title":"Village of Skokie Board of Trustees adjourned meeting before public comment opportunity","filename":"79466, issued September 10, 2024.pdf","rel_path":null,"word_count":2488,"summary":"A requester alleged that the Village of Skokie Board of Trustees violated the Open Meetings Act by prematurely adjourning a meeting, thereby denying members of the public the opportunity to provide public comment. The PAC determined that the Board violated section 2.06(g) of the OMA by failing to provide the public an opportunity to address the Board before adjournment.","plain_summary":"A resident alleged that a village board ended a meeting before members of the public could comment on matters not on the agenda. After reviewing the recording and the Board's procedures, the PAC found that the Board violated OMA by ending the meeting without giving the public a reasonable opportunity to address the Board on non-agenda matters. No remedy was available for the completed meeting.","holding":"","legal_question":"Whether the Village of Skokie Board of Trustees violated section 2.06(g) of the Open Meetings Act by adjourning a meeting before providing an opportunity for public comment.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Skokie Board of Trustees","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board of Trustees adjourned a public meeting before the scheduled public comment period occurred.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/79466, issued September 10, 2024.pdf","sha256":"882c0416f6fe60c34bd5d81cc1003ef3cfda102f81ba0682a1691de5da0aa540","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting adjournment","open meetings act","village board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"September 10, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable George Van Dusen\n\nMayor\nVillage of Skokie\n\n5127 Oakton Street\nSkokie, Illinois 60077\n\nGeorge.VanDusen@skokie.org\nRE: OMA Request for Review – 2023 PAC 79466\nDear\n\nand Mr. Van Dusen:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)).\nBACKGROUND\nOn December 21, 2023,\n\nsubmitted a Request for Review to\n\nthe Public Access Bureau alleging that the Board of Trustees ( Board) of the Village of Skokie\n\nVillage) violated the requirements of OMA at its December 18, 2023, meeting. Specifically,\nalleged that: ( 1) the Board did not follow the rules of order, as laid out in the Village' s\n\nCode of Ordinances; (2) the meeting's livestream stopped for a period of time, making it difficult\nfor the public to follow the meeting; ( 3) the Board ended the meeting before a trustee had a\n\nchance to call a motion to bring back an agenda item; and (4) the Board ended the meeting\nbefore she and two other members of the public could provide public comment. With respect to\n\nthe last allegation,\n\nstated that the Board provided time for public comments after it\n\ndiscussed agenda item 12B, but that \"[ i]mmediately following the last comment on the specific\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 2\nagenda item discussion,\" a trustee moved to adjourn.1 She contended that the Board ended the\nmeeting \" prematurely, before the last three items on the agenda: 13. Unfinished Business; 14.\n\nNew Business and 15. Public Comment.\" 2\n\nasserted that at that point:\n\nOne person in attendance calls out asking \"what just happened?\"\nshe was there to make a public comment. Another gentleman was\n\nconfused and stated he had also sat through the entire meeting to\nmake a public comment unrelated to specific agenda items and I\n\nalso had a public comment that was unrelated to the agenda items\nalready addressed.[ 3]\nfurther stated that the Village Manager ultimately \" came over apologetically and\n\noffered to take written comments to the board[,]\" but noted that she did not have written\ncomments to provide. 4\nAs a threshold matter, section 3.5(a) of OMA ( 5 ILCS 120/ 3.5(a) ( West 2022))\n\nprovides, in relevant part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nFurther, the Public Access Counselor's authority to resolve disputes is limited to alleged\nviolations of OMA and the Freedom of Information Act ( 5 ILCS 140/ 1 et seq. ( West 2022)). See\n\n15 ILCS 205/7(c)(3) (West 2022). OMA governs the transparency with which public bodies\n\n1Letter from\nGeneral (December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n2Letter from\nGeneral (December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n3Letter from\nGeneral (December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n4Letter from\nGeneral ( December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 3\nmeet and conduct public business; it generally does not govern other aspects of meetings, such as\na meeting' s order of business and procedures for entertaining motions by a public body' s\n\nmembers. OMA also does not require public bodies to livestream in-person meetings. A public\nbody may livestream in-person meeting in the interests of transparency, but no provision of\n\nOMA requires it to do so. Because the Public Access Counselor does not have the authority to\nreview alleged violations of a municipal code, and because the allegation concerning the\n\nlivestream does not implicate OMA's requirements, this office took no further action on the first\nRequest for Review. 5\n\nthree claims in\n\nOn January 3, 2024, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide this office with copies of its December 18, 2023, meeting agenda\nand minutes, any rules or policies governing public comment, and a written response to the\n\nallegation that the Board did not provide members of the public an opportunity to address its\nmembers in violation of section 2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) ( West 2022)). On January\n\n17, 2024, this office received the requested materials. On January 18, 2024, this office\nforwarded a copy of the Board' s response to\n\nshe replied the next day.\n\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 (1989).\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" This provision \"requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\"\n\nIll. Att'y Gen. Pub. Acc.\n\nOp. No. 14-012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\n\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, at 6.\nIn its response to this office, the Board denied that it failed to provide an\n\nopportunity for members of the public to address its members. Directing this office to a posted\nrecording6 of the meeting, the Board asserted that during the meeting, a Village resident asked to\n\nsubmission also alleged that the Board improperly discussed certain issues in closed\nsession at its October 2021 meeting. That allegation was addressed separately in 2023 PAC 79467.\n6Village of Skokie, December 18, 2023 Village Board Meeting, YouTube, ( December 18, 2023),\nhttps:// www.youtube. com/watch?v=5SzRJ_ fjWHo.\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 4\nprovide public comment and was given a chance to do so after several trustees finished a\ndiscussion. The Board asserted that\n\nthen \" approached the podium and gave her public\n\ncomment about an attempted referendum from a Board Meeting held a year earlier[,]\" and that\nanother individual also commented on the attempted referendum. 7 The Board contended:\nFollowing the last comment, no one was waiting at the\n\npodium to make an additional comment. Also, no one from the\naudience stood up and approached the podium to address the\n\nBoard. Additionally, no one in the audience raised their hand and\nasked to be heard. Finally, despite the requester' s allegation, no one\n\nin the audience verbalized that they wanted to address the Board. If\nanyone had done so, [ the mayor] would have allowed them the\n\nopportunity to speak.[8]\nIn reply to that answer,\n\nmaintained that the Board ended the meeting\n\nbefore general Public Comments, Item 15 on the Agenda, which again is the only opportunity\n\nfor the public to speak on items unrelated to specific agenda items.\" 9 ( Emphasis in original.)\nShe acknowledged that she provided comments but argued that her comments were specifically\n\nrelated to the discussion of agenda 12B.\n\nalso disputed the Board's claim that no one\n\nelse expressed a desire to address the Board, reiterating that an individual spoke out at the\n\nadjournment:\nI am not sure if the mayor simply did not notice, but the Village\nManager did and approached her. If the mayor truly didn’ t notice it\n\ndoesn’ t mean it didn’ t happen – there were several people in the\nroom who did notice in addition to the village manager and me,\n\nincluding a member of the public who provided his notes to the\nmanager.[ 10]\n\n7Letter from Mayor George Van Dusen, Village of Skokie, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (January 11, 2024), at 2.\n8Letter from Mayor George Van Dusen, Village of Skokie, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (January 11, 2024), at 2.\n9Letter from\nto Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Illinois Attorney General (January 19, 2024), at 2.\n10Letter from\nto Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Illinois Attorney General ( January 19, 2024), at 2.\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 5\nAdditionally,\n\nstated that \"it is typical for the members of the public who wish to make\n\na public comment to remain seated through the agenda until there is a call for public comments\n\nsince it is the mayor who moves through the agenda. That call never came on December 18th.\" 11\nThis office has reviewed the posted recording of the December 18, 2023, meeting,\nspecifically the portion that started with the Board' s consideration of Agenda Item 12B: \" An\n\nordinance to establish the compensation for appointed officials for FY2024. Items B is on the\nagenda for first reading. The second reading will be on January 2, 2024.\" 12 The Village' s\n\nCorporation Counsel provided an overview of this ordinance. One of the trustees expressed his\nconcerns regarding the ordinance, which included concerns related to conflicts of interest,\n\npartisanship, voter suppression, and misconduct. A Board discussion then ensued regarding\nthose concerns. During this discussion, a member of the public spoke up and asked if she could\n\nmake a public comment. The mayor asked her to hold on, and the Board wrapped up its\ndiscussion. The individual then stepped up to a podium, introduced herself, and stated she\n\nwished to focus on the agenda item, indicating her comments pertained to the issue of\npartisanship/ non- partisanship.\n\nintroduced ordinance.\n\nShe then commented on the Board' s discussion and the\n\nnext stepped up to the podium and explained that she was\n\ngoing to talk on the matter of voter suppression, as referenced by the trustee in his concerns.\n\nexpressed her thoughts and concerns about an attempted referendum and a petition she and\nother residents had been preparing. Another member of the public then stepped up to the podium\n\nand similarly expressed her thoughts related to the attempted referendum. After the latter\nindividual concluded her remarks, a trustee moved to adjourn the meeting.\nThe Board provided this office with a copy of \" Welcome\" handout describing its\n\nmeeting procedures for members of the public. The handout states, in relevant part:\nIf there is a specific item that is listed on the Agenda about\nwhich you seek to comment, after a motion or resolution is\n\npresented AND after the Trustees have an opportunity to discuss\nthe item, the Mayor will ask if anyone wishes to speak to the item.\n\nAt that time, you may raise your hand to be recognized. Please\napproach the lectern, identify yourself and speak to the Village\n\nBoard.\nIf you seek to comment on a matter that is not on the\nAgenda, after the Village Board addresses scheduled matters for\n\nwhich people are specifically in attendance, there is an Agenda\n11Letter from\nto Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Illinois Attorney General (January 19, 2024), at 2.\n12Village of Skokie, Agenda Item 12, Report of the Corporation Counsel ( December 18, 2023).\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 6\nItem entitled \"Public Comment\" during which you may address the\nVillage Board. For matters attracting large numbers of public\n\ncomment, there may be other requirements to enable a large\nnumber of participants. Such requirements will be posted in\n\nadvance on the Village website. All comments are limited to 3\nminutes per person.[ 13] ( Emphasis in original.)\nEven if the above- described participant procedures in the \" Welcome\" handout\n\ncould be considered \" rules established and recorded by the public body,\" the Board did not\nappear to adhere to those procedures.\n\nIt is undisputed that Item 15 of the agenda listed \" Public\n\nComment,\" 14 but that the Board adjourned the meeting shortly after its consideration of Item\n12B. The Public Access Bureau has previously determined that \"[ n] o provision of OMA\n\nrequires a public body to adhere to the chronological order of an agenda.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 55279, issued October 24, 2018, at 2. While OMA did not prohibit the Board\n\nfrom changing the order of its agenda, the agenda nonetheless suggested that the Board planned\nto consider two other agenda items before hearing public comments on non- agenda items, and\n\nthe Board did not indicate during the meeting any changes to its public participation procedure.\nThe recording reflects that the Board allowed three individuals to complete their comments\n\nwithout interruption. The individuals appeared at times to speak broadly on issues that did not\ndirectly pertain to the compensation ordinance that was the subject of Item 12B. On the other\n\nhand, the Board did not make clear that it would hear any other comments, not limited to agenda\nitems, after the third person spoke, such as by making a last call for public comments on any\n\nmatters. Therefore, members of the public could have reasonably believed from reviewing the\nagenda and handout that they should wait to comment on non- agenda issues rather than raise\n\ntheir hands to be recognized at the time that comment on the agenda item was occurring.\nillustrated that several members of the public expressed a desire to comment but were\n\nunable to do so because of the early adjournment of the meeting. Under these circumstances,\nthis office concludes that the Board violated section 2.06( g) of OMA during its December 18,\n\n2023, meeting.\nAlthough there are no means by which the Board can remedy its violation of\nsection 2.06( g) in this instance, the Board and its members should be mindful of the public' s\n\nstatutory right to address the Board before it adjourns its meetings.\n\n13Village of Skokie, Welcome Handout.\n14Village of Skokie, Agenda Item 15, Public Comment ( December 18, 2023).\n\n\fThe Honorable George Van Dusen\nSeptember 10, 2024\n\nPage 7\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n79466 o 206g pub comment improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board adjourning before public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A resident complained to the Illinois Attorney General's Public Access Bureau that the Village of Skokie Board of Trustees ended its December 18, 2023, meeting before she and others could give public comment on items not on the agenda. The Board denied the allegation, stating that after the last comment on a specific agenda item, no one was waiting at the podium, no one raised their hand to speak, and the mayor would have allowed anyone who asked to address the Board. The Public Access Bureau reviewed the meeting recording and the Board's rules but did not issue a finding or conclusion on whether a violation occurred.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79466/","full_text":"September 10, 2024\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable George Van Dusen\n\nMayor\nVillage of Skokie\n\n5127 Oakton Street\nSkokie, Illinois 60077\n\nGeorge.VanDusen@skokie.org\nRE: OMA Request for Review – 2023 PAC 79466\nDear\n\nand Mr. Van Dusen:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)).\nBACKGROUND\nOn December 21, 2023,\n\nsubmitted a Request for Review to\n\nthe Public Access Bureau alleging that the Board of Trustees (Board) of the Village of Skokie\n\nVillage) violated the requirements of OMA at its December 18, 2023, meeting. Specifically,\nalleged that: (1) the Board did not follow the rules of order, as laid out in the Village's\n\nCode of Ordinances; (2) the meeting's livestream stopped for a period of time, making it difficult\nfor the public to follow the meeting; (3) the Board ended the meeting before a trustee had a\n\nchance to call a motion to bring back an agenda item; and (4) the Board ended the meeting\nbefore she and two other members of the public could provide public comment. With respect to\n\nthe last allegation,\n\nstated that the Board provided time for public comments after it\n\ndiscussed agenda item 12B, but that \"[ i]mmediately following the last comment on the specific\n\nagenda item discussion,\" a trustee moved to adjourn.1 She contended that the Board ended the\nmeeting \" prematurely, before the last three items on the agenda: 13. Unfinished Business; 14.\n\nNew Business and 15. Public Comment.\" 2\n\nasserted that at that point:\n\nOne person in attendance calls out asking \"what just happened?\"\nshe was there to make a public comment. Another gentleman was\n\nconfused and stated he had also sat through the entire meeting to\nmake a public comment unrelated to specific agenda items and I\n\nalso had a public comment that was unrelated to the agenda items\nalready addressed.[ 3]\nfurther stated that the Village Manager ultimately \" came over apologetically and\n\noffered to take written comments to the board[,]\" but noted that she did not have written\ncomments to provide. 4\nAs a threshold matter, section 3.5(a) of OMA (5 ILCS 120/ 3.5(a) (West 2022))\n\nprovides, in relevant part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\n\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\n\nconcerning the violation are not discovered within the 60–day\nperiod, but are discovered at a later date, not exceeding 2 years\n\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days of\n\nthe discovery of the alleged violation. (Emphasis added.)\nFurther, the Public Access Counselor's authority to resolve disputes is limited to alleged\nviolations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2022)). See\n\n15 ILCS 205/7(c)(3) (West 2022). OMA governs the transparency with which public bodies\n\n1 Letter from\nGeneral (December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n2 Letter from\nGeneral (December 21, 2023), at 1.\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n3 Letter from\n\nmeet and conduct public business; it generally does not govern other aspects of meetings, such as\na meeting's order of business and procedures for entertaining motions by a public body's\n\nmembers. OMA also does not require public bodies to livestream in-person meetings. A public\nbody may livestream in-person meeting in the interests of transparency, but no provision of\n\nOMA requires it to do so. Because the Public Access Counselor does not have the authority to\nreview alleged violations of a municipal code, and because the allegation concerning the\n\nlivestream does not implicate OMA's requirements, this office took no further action on the first\nRequest for Review. 5\n\nthree claims in\n\nOn January 3, 2024, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide this office with copies of its December 18, 2023, meeting agenda\nand minutes, any rules or policies governing public comment, and a written response to the\n\nallegation that the Board did not provide members of the public an opportunity to address its\nmembers in violation of section 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)). On January\n\n17, 2024, this office received the requested materials. On January 18, 2024, this office\nforwarded a copy of the Board's response to\n\nshe replied the next day.\n\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\n\nof the people's business and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n\n161, 171 (1989).\nSection 2.06(g) of OMA provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\n\nbody.\" This provision \"requires that all public bodies subject to the Act provide an opportunity\nfor members of the public to address public officials at open meetings.\"\n\nIll. Att'y Gen. Pub. Acc.\n\nOp. No. 14-012, issued September 30, 2014, at 5. A public body may restrict public comment\nonly pursuant to its established and recorded rules, which must tend to accommodate, rather than\n\nunreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14012, at 6.\nIn its response to this office, the Board denied that it failed to provide an\n\nopportunity for members of the public to address its members. Directing this office to a posted\nrecording6 of the meeting, the Board asserted that during the meeting, a Village resident asked to\n\nsubmission also alleged that the Board improperly discussed certain issues in closed\nsession at its October 2021 meeting. That allegation was addressed separately in 2023 PAC 79467.\n\nprovide public comment and was given a chance to do so after several trustees finished a\ndiscussion. The Board asserted that\n\nthen \" approached the podium and gave her public\n\ncomment about an attempted referendum from a Board Meeting held a year earlier[,]\" and that\nanother individual also commented on the attempted referendum. 7 The Board contended:\nFollowing the last comment, no one was waiting at the\n\npodium to make an additional comment. Also, no one from the\naudience stood up and approached the podium to address the\n\nBoard. Additionally, no one in the audience raised their hand and\nasked to be heard. Finally, despite the requester's allegation, no one\n\nin the audience verbalized that they wanted to address the Board. If\nanyone had done so, [ the mayor] would have allowed them the\n\nopportunity to speak.[8]\nIn reply to that answer,\n\nmaintained that the Board ended the meeting\n\nbefore general Public Comments, Item 15 on the Agenda, which again is the only opportunity\n\nfor the public to speak on items unrelated to specific agenda items.\" 9 (Emphasis in original.)\nShe acknowledged that she provided comments but argued that her comments were specifically\n\nrelated to the discussion of agenda 12B.\n\nalso disputed the Board's claim that no one\n\nelse expressed a desire to address the Board, reiterating that an individual spoke out at the\n\nadjournment:\nI am not sure if the mayor simply did not notice, but the Village\nManager did and approached her. If the mayor truly didn’ t notice it\n\ndoesn’ t mean it didn’ t happen – there were several people in the\nroom who did notice in addition to the village manager and me,\n\nincluding a member of the public who provided his notes to the\nmanager.[ 10]\n\n7 Letter from Mayor George Van Dusen, Village of Skokie, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (January 11, 2024), at 2.\n8 Letter from Mayor George Van Dusen, Village of Skokie, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau (January 11, 2024), at 2.\n9 Letter from\n\nAdditionally,\n\nstated that \"it is typical for the members of the public who wish to make\n\na public comment to remain seated through the agenda until there is a call for public comments\n\nsince it is the mayor who moves through the agenda. That call never came on December 18th.\" 11\nThis office has reviewed the posted recording of the December 18, 2023, meeting,\nspecifically the portion that started with the Board's consideration of Agenda Item 12B: \" An\n\nordinance to establish the compensation for appointed officials for FY2024. Items B is on the\nagenda for first reading. The second reading will be on January 2, 2024.\" 12 The Village's\n\nCorporation Counsel provided an overview of this ordinance. One of the trustees expressed his\nconcerns regarding the ordinance, which included concerns related to conflicts of interest,\n\npartisanship, voter suppression, and misconduct. A Board discussion then ensued regarding\nthose concerns. During this discussion, a member of the public spoke up and asked if she could\n\nmake a public comment. The mayor asked her to hold on, and the Board wrapped up its\ndiscussion. The individual then stepped up to a podium, introduced herself, and stated she\n\nwished to focus on the agenda item, indicating her comments pertained to the issue of\npartisanship/ non- partisanship.\n\nintroduced ordinance.\n\nShe then commented on the Board's discussion and the\n\nnext stepped up to the podium and explained that she was\n\ngoing to talk on the matter of voter suppression, as referenced by the trustee in his concerns.\n\nexpressed her thoughts and concerns about an attempted referendum and a petition she and\nother residents had been preparing. Another member of the public then stepped up to the podium\n\nand similarly expressed her thoughts related to the attempted referendum. After the latter\nindividual concluded her remarks, a trustee moved to adjourn the meeting.\nThe Board provided this office with a copy of \" Welcome\" handout describing its\n\nmeeting procedures for members of the public. The handout states, in relevant part:\nIf there is a specific item that is listed on the Agenda about\nwhich you seek to comment, after a motion or resolution is\n\npresented AND after the Trustees have an opportunity to discuss\nthe item, the Mayor will ask if anyone wishes to speak to the item.\n\nAt that time, you may raise your hand to be recognized. Please\napproach the lectern, identify yourself and speak to the Village\n\nBoard.\nIf you seek to comment on a matter that is not on the\nAgenda, after the Village Board addresses scheduled matters for\n\nwhich people are specifically in attendance, there is an Agenda\n11 Letter from\nto Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Illinois Attorney General (January 19, 2024), at 2.\n12 Village of Skokie, Agenda Item 12, Report of the Corporation Counsel (December 18, 2023).\n\nItem entitled \"Public Comment\" during which you may address the\nVillage Board. For matters attracting large numbers of public\n\ncomment, there may be other requirements to enable a large\nnumber of participants. Such requirements will be posted in\n\nadvance on the Village website. All comments are limited to 3\nminutes per person.[ 13] (Emphasis in original.)\nEven if the above- described participant procedures in the \" Welcome\" handout\n\ncould be considered \" rules established and recorded by the public body,\" the Board did not\nappear to adhere to those procedures.\n\nIt is undisputed that Item 15 of the agenda listed \" Public\n\nComment,\" 14 but that the Board adjourned the meeting shortly after its consideration of Item\n12B. The Public Access Bureau has previously determined that \"[ n] o provision of OMA\n\nrequires a public body to adhere to the chronological order of an agenda.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 55279, issued October 24, 2018, at 2. While OMA did not prohibit the Board\n\nfrom changing the order of its agenda, the agenda nonetheless suggested that the Board planned\nto consider two other agenda items before hearing public comments on non- agenda items, and\n\nthe Board did not indicate during the meeting any changes to its public participation procedure.\nThe recording reflects that the Board allowed three individuals to complete their comments\n\nwithout interruption. The individuals appeared at times to speak broadly on issues that did not\ndirectly pertain to the compensation ordinance that was the subject of Item 12B. On the other\n\nhand, the Board did not make clear that it would hear any other comments, not limited to agenda\nitems, after the third person spoke, such as by making a last call for public comments on any\n\nmatters. Therefore, members of the public could have reasonably believed from reviewing the\nagenda and handout that they should wait to comment on non- agenda issues rather than raise\n\ntheir hands to be recognized at the time that comment on the agenda item was occurring.\nillustrated that several members of the public expressed a desire to comment but were\n\nunable to do so because of the early adjournment of the meeting. Under these circumstances,\nthis office concludes that the Board violated section 2.06(g) of OMA during its December 18,\n\n2023, meeting.\nAlthough there are no means by which the Board can remedy its violation of\nsection 2.06(g) in this instance, the Board and its members should be mindful of the public's\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n79466 o 206g pub comment improper mun"}
{"id":1449,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-03-15","case_number":null,"request_numbers":["79472"],"title":"Village of Burr Ridge Board of Trustees did not violate OMA by restricting public comment format","filename":"79472, issued March 15, 2024.pdf","rel_path":null,"word_count":2178,"summary":"The Citizen Advocacy Center alleged that the Village of Burr Ridge Board of Trustees violated the Open Meetings Act by restricting public comment at an October 2023 meeting. The PAC determined that the Board did not violate the Act, though it cautioned the Board against discouraging public participation.","plain_summary":"A citizen group complained that the Village of Burr Ridge Board of Trustees violated the Open Meetings Act during public comment at an October 2023 meeting, alleging the board asked residents to sign a pad to show opposition instead of speaking, asked for home addresses, prioritized elected officials, and ended public comment early. The Attorney General's Public Access Bureau reviewed the meeting recording and concluded that the board did not violate section 2.06(g) of the Act. The bureau found that the list of names was not a mandatory substitute for speaking, that no one was prevented from addressing the board, and that the board invited public comment multiple times without evidence that anyone was denied the opportunity to speak.","holding":"The Public Access Bureau concluded that the Village of Burr Ridge Board of Trustees did not violate section 2.06(g) of the Open Meetings Act regarding its conduct during the public comment period.","legal_question":"Whether the Village of Burr Ridge Board of Trustees violated section 2.06(g) of the Open Meetings Act by restricting the manner in which members of the public could express opposition during a public comment period.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Burr Ridge Board of Trustees","requesting_party":"Mr. Jack Bentley (Citizen Advocacy Center)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The conduct of a public body during a public comment period at a village board meeting.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Reasonable-rules/79472, issued March 15, 2024.pdf","sha256":"2d1f527df87a76b7dc0389e3795ab1bf5cb1bf207329aa715ff491211a9fb61f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","village board","citizen participation"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GE ERAL\nST ATE OF ILLI O1S\n\nKWAMERAO L\nAlTORNEY GEJ\\'ERAL\n\nMarch 15, 2024\n\nVia electronic mail\nMr. Jack Bentley\nExecutive Director\nCitizen Advocacy Center\njbentley@citizenadvocacycenter.org\nVia electronic mail\nMr. Thomas J. Halleran\nStorino, Ramella & Durkin\n[street address redacted for site publication -- see original PDF]\nthomas@srd-law.com\nRE: OMA Request for Review-2023 PAC 79472\nDear Mr. Bentley and Mr. Halleran:\nThis determination is issued pursuant to section 3 .5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Village of Burr Ridge Board of Trustees (Board) did not violate OMA\nin connection with the public comment period at its October 23, 2023, meeting.\n\nBACKGROUND\nIn a Request for Review received by this office on December 21, 2023, Mr. Jack\nBentley of the Citizen Advocacy Center alleged that during the public comment period at its\nOctober 23, 2023, meeting, the Board violated section 2.06(g) of OMA. 1 Specifically, Mr.\nBentley alleged that the Board violated OMA by (1) instructing members of the public to sign a\npad of paper to represent their opposition to a proposed gas station rather than voicing their\nopposition; (2) instructing individuals to provide their home addresses on that pad; (3)\n1\n\n5 ILCS 120/2.06(g) (W st 2022).\n\n500 South 2nd Street\nSpringlicld, lllinois 62701\n(21 7) 782-1090 • fax: (217) 782-7046\n\n115 South LaSalk Street\nC.71icago, Illinois 60603\n(312) 14-3000 • Fax: (312) 814-3806\n\n1745 Innovation Dri,·e, Sutte C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual with hearing or pecch disabilities can reach u by using the 7-1-1 relay service.\nwww.lllinoisAtlomcyGencral.gov\n\n\fMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch 15, 2024\nPage 2\nprioritizing elected officials over other individuals wishing to address the Board; and (4) ending\nthe period for public comment before all who wished to speak were able to address the Board. 2\nOn January 10, 2024, this office asked the Board or its representative to provide a\nwritten response to this office in which it addressed Mr. Bentley's allegations. On January 18,\n2024, the Board responded. On January 19, 2024, this office forwarded the Board's answer to\nMr. Bentley; he replied on January 26, 2024.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSection 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The Attorney General has concluded that section 2.06(g) of OMA \"requires that all\npublic bodies subject to the Act provide an opportunity for members of the public to address\npublic officials at open meetings.\" See Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued\nSeptember 30, 2014, at 5. A public body violates section 2.06(g) of OMA when it: (1) prohibits\na member of the public from addressing its members in a manner inconsistent with its\nestablished and recorded rules, or (2) prohibits a member of the public from providing public\ncomment pursuant to its established and recorded rules, but those rules unreasonably restrict that\nperson's right to address public official . Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued\nSeptember 4, 2014, at 5-7.\nThis office has reviewed the recording of the October 23, 2023, meeting.\nRelevant to Mr. Bentley's Request for Review, the Board considered whether to modify the\nobjection it previously filed with the DuPage County Board concerning the construction of a\nQuikTrip gas station and store. As the mayor was about to begin the period for public comment,\na Board member interrupted him and stated, \"I'm sure all these residents would love to talk.\" To\nwhich the mayor stated, \"yeah, we're not letting [inaudible].\" 3 The Board member made\n2\n\nMr. Bentley also alleged that the Board's actions violated the First Amendment of the United\nStates Constitution. The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom oflnformation Act, however, and therefore, this office will not address those allegations.\nSee I 5 ILCS 205/7(c)(3) (West 2022).\nVillag of Burr Ridg , Board of Trustee Meeting (October 23, 2023),\nhttp ://www.youtube.com/watch?v= R0d2ZqnB_Is, at approximately I :16:45.\n3\n\nOffice of the Illinois Attorney General\n\n\fMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch 15, 2024\nPage 3\ncomments implying that many of the comments would be repetitive, but he did not finish his\nstatement. The mayor then asked how many residents of Burr Ridge wished to provide public\ncomment. Numerous individuals in the audience raised their hands. After some Board member\ncomments, the mayor began inviting members of the audience to address the Board. When\nasked about time limits for each speaker, the mayor said \"we're not going to give them too much\ntime\" and asked the audience how many people wanted to speak. 4 Seeing a large number, the\nmayor sent around a pad of paper and explained that people could provide their names and\naddresses to be listed in the record as against the gas station proposal. He then said he would let\nsome of the audience members speak. He asked the audience to be considerate of the Board's\ntime and to offer non-repetitive comments. Specifically, he stated, \"if there are some things we\nhaven't considered-I brought up a few things-if! failed to bring something up that you want\nto bring up, of course then the Board wants to hear that, but we don't want to hear about the left\ntum lane, pork chops, overnight parking, okay? Something new would be refreshing. \" 5\nSeven members of the public addressed the Board in opposition to the gas station,\nwithout interruption, for a total of approximately 16 minutes. The mayor then asked if anyone\npresent was in favor of the gas station. Seeing no one, the mayor indicated that he would let\nthree more people speak. Three more individuals addressed the Board to express their\nopposition to the gas station without interruption, for a total of approximately seven minutes.\nAfter permitting the gas station representatives to answer questions and allowing Board members\nto speak, the mayor made a fi nal request for public comment. In doing so, he stated,\n\"procedure ... does require me to say 'is there any public comment,' but I've really heard all the\npublic comment. So, I'm not going to say no, but I'm asking you that you should read the room.\nAnd so, does anybody want to make a public comment?\" 6 He then permits three more\nindividuals to address the Board; all three spoke uninterrupted about their opposition to the gas\nstation, for a total of approximately four minutes. The Board then took a vote on the matter.\nIn his Request for Review, Mr. Bentley characterized the list of names in\nopposition to the gas station as an alternative to addressing the Board. Upon reviewing the\nrecording of the public comment period, however, no one was told that if they signed the list,\nthey could not also address the Board. To the contrary, as the Board pointed out in its response\nto this office, twelve individuals who signed the list also addressed the Board. The list was not a\nmandatory substitute for addressing the Board or a tool used by the Board to prohibit public\nVillage of Burr Ridge, Board of Trustees Meeting (October 23, 2023),\nhttps://www.youtube.com/watch?v= ROd2ZqnB_Is, at approximately l :24:35.\n4\n\nVillage of Burr Ridge, Board of Trustees Meeting (October 23, 2023),\nhttps://www.youtube.com/watch?v= ROd2ZqnB_ls, at approximately l :25:50.\n5\n\nVillag of Burr Ridg , Board of Trustee Meeting (October 23, 2023),\nhttp ://www.youtube.com/watch?v= R0d2ZqnB_Is, at approximately 2:13:32.\n6\n\nOffice of the Illinois Attorney General\n\n\fMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch 15, 2024\nPage4\ncomment, rather it was a means of having individuals' opposition to the gas station placed in the\nrecord. Accordingly, the Board's use of the list did not violate section 2.06(g) ofOMA. 7\nMr. Bentley also alleged that the Board impermissibly prioritized elected officials\nover members of the public and ended public comment before all individuals who wished to\nspeak had addressed the Board. Although this office observed that two elected officials\naddressed the Board, there is no indication on the recording that those individuals were selected\nto the exclusion of members of the public. Further, the Board did not interfere with or prohibit\nany individual from addressing it during the meeting. The Board invited public comment on the\ngas station topic three times, including extending a final opportunity that three members of the\npublic used to address the Board. There is no indication that anyone was attempting to speak at\nthe conclusion of the final portion of the public comment period but was not permitted to do so.\nTherefore, this office is unable to conclude that the Board violated section 2.06(g) when it ended\nthe period for public comment.\nIn his reply, Mr. Bentley stated that \"[t]he purpose of the Request for Review\n* * * was to report a perceived 'chilling effect' on the public comment at the October 23, 2023\nmeeting of the Board[.]\" 8 \"The Citizen Advocacy Center is simply asserting that the way the\nmeeting and public comment was conducted actively discouraged rather than encouraged public\ncomment. \" 9 He also asserted that the Board violated the spirit of OMA in that \"[l]imiting public\ncomment simply because the governing body believes the vote will align with a majority of the\npublic commenter's viewpoints is not a justification to limit or discourage public comment.\nTaking names and addresses has the effect of creating a premature 'straw poll' that the Village\nBoard used as an excuse to minimize the importance of the public comment.\" 10\nIt is apparent that the mayor's comments throughout the period for public\ncomment were intended to discourage repetitive commentary and encourage individuals to share\n7lt follows that the Board did not violate OMA by asking individuals to include their addresses on\nthe list. Although the Attorney General has previously concluded that an established and recorded rule requiring\nspeakers to provide their home addresses prior to addressing it would impermissibly exceed the scope of the\nrulemaking contemplated by section 2.06(g), the Board never asked individuals to provide their addresses before\naddressing it. Ill. Att'y Gen. Pub. Acc. Op. o. 14-009, issued September 4, 2014, at 7 (\"Requiring a member of the\npublic to provide his or her complete home address prior to speaking may have a chilling effect on individuals who\nwish to speak at public meetings.\").\nLetter from Jack Bentley, Executive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau (January 26, 2024), at [l].\n8\n\n9Letter from Jack Bentley, Executive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau (January 26, 2024), at 3. (Emphasis in original.)\nLetter from Jack Bentley, Ex cutive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, D puty Bur au Chief, Public Acee s Bureau (January 26, 2024), at 3.\n10\n\nOffice of the Illinois Attorney General\n\n\fMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch l 5, 2024\nPage5\nnew viewpoints. Despite the mayor's apparent exasperation with repetitive comments, he still\nsignaled to the audience that the Board would listen to whatever comments individuals wished to\nmake on the subject by permitting thi1teen individuals to deliver largely repetitive comments.\nNotably, his tone remained civil and he never intetTupted or reprimanded any members of the\npublic. Under these circumstances, this office is unable to conclude that the Board's actions in\nfacilitating the public comment period of the October 23, 2023, violated section 2.06(g) of OMA.\nThis office notes, however, that the statutory right to provide public comment is\nnot conditioned on the novelty of a speaker's comments. In the absence of an established and\nrecorded mle that restricts the total amount of public comment time or number of speakers, the\nBoard should be mindful that OMA generally does not permit a public body to unilaterally limit\ncomments that it perceives to be redundant. This office also recommends that the Board refrain\nfrom making comments that potentially could discourage members of the public from\nparticipating in public comment.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n1aura.harter@ilag.gov. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n79472 o 206g proper mun\n\nOffice of the lllinoisArtomey General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's conduct during a public comment period","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79472/","full_text":"OFFICE OF THE ATTORNEY GE ERAL\nST ATE OF ILLI O1S\n\nKWAMERAO L\nAlTORNEY GEJ\\'ERAL\n\nMarch 15, 2024\n\nVia electronic mail\nMr. Jack Bentley\nExecutive Director\nCitizen Advocacy Center\njbentley@citizenadvocacycenter.org\nVia electronic mail\nMr. Thomas J. Halleran\nStorino, Ramella & Durkin\n[street address redacted for site publication -- see original PDF]\nthomas@srd-law.com\nRE: OMA Request for Review-2023 PAC 79472\nDear Mr. Bentley and Mr. Halleran:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.S(e) (West 2022)). For the reasons explained below, the Public Access\nBureau concludes that the Village of Burr Ridge Board of Trustees (Board) did not violate OMA\nin connection with the public comment period at its October 23, 2023, meeting.\n\nBACKGROUND\nIn a Request for Review received by this office on December 21, 2023, Mr. Jack\nBentley of the Citizen Advocacy Center alleged that during the public comment period at its\nOctober 23, 2023, meeting, the Board violated section 2.06(g) of OMA. 1 Specifically, Mr.\nBentley alleged that the Board violated OMA by (1) instructing members of the public to sign a\npad of paper to represent their opposition to a proposed gas station rather than voicing their\nopposition; (2) instructing individuals to provide their home addresses on that pad; (3)\n1\n\n5 ILCS 120/2.06(g) (W st 2022).\n\n500 South 2nd Street\nSpringlicld, lllinois 62701\n(21 7) 782-1090 • fax: (217) 782-7046\n\n115 South LaSalk Street\nC.71icago, Illinois 60603\n(312) 14-3000 • Fax: (312) 814-3806\n\n1745 Innovation Dri,·e, Sutte C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividual with hearing or pecch disabilities can reach u by using the 7-1-1 relay service.\n\nprioritizing elected officials over other individuals wishing to address the Board; and (4) ending\nthe period for public comment before all who wished to speak were able to address the Board. 2\nOn January 10, 2024, this office asked the Board or its representative to provide a\nwritten response to this office in which it addressed Mr. Bentley's allegations. On January 18,\n2024, the Board responded. On January 19, 2024, this office forwarded the Board's answer to\nMr. Bentley; he replied on January 26, 2024.\nDETERMINATION\nIt is the \"public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nSection 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The Attorney General has concluded that section 2.06(g) of OMA \"requires that all\npublic bodies subject to the Act provide an opportunity for members of the public to address\npublic officials at open meetings.\" See Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued\nSeptember 30, 2014, at 5. A public body violates section 2.06(g) of OMA when it: (1) prohibits\na member of the public from addressing its members in a manner inconsistent with its\nestablished and recorded rules, or (2) prohibits a member of the public from providing public\ncomment pursuant to its established and recorded rules, but those rules unreasonably restrict that\nperson's right to address public official. Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued\nSeptember 4, 2014, at 5-7.\nThis office has reviewed the recording of the October 23, 2023, meeting.\nRelevant to Mr. Bentley's Request for Review, the Board considered whether to modify the\nobjection it previously filed with the DuPage County Board concerning the construction of a\nQuikTrip gas station and store. As the mayor was about to begin the period for public comment,\na Board member interrupted him and stated, \"I'm sure all these residents would love to talk.\" To\nwhich the mayor stated, \"yeah, we're not letting [inaudible].\" 3 The Board member made\n2\n\nMr. Bentley also alleged that the Board's actions violated the First Amendment of the United\nStates Constitution. The Public Access Counselor's authority to resolve disputes is limited to alleged violations of\nOMA and the Freedom oflnformation Act, however, and therefore, this office will not address those allegations.\nSee I 5 ILCS 205/7(c)(3) (West 2022).\n\ncomments implying that many of the comments would be repetitive, but he did not finish his\nstatement. The mayor then asked how many residents of Burr Ridge wished to provide public\ncomment. Numerous individuals in the audience raised their hands. After some Board member\ncomments, the mayor began inviting members of the audience to address the Board. When\nasked about time limits for each speaker, the mayor said \"we're not going to give them too much\ntime\" and asked the audience how many people wanted to speak. 4 Seeing a large number, the\nmayor sent around a pad of paper and explained that people could provide their names and\naddresses to be listed in the record as against the gas station proposal. He then said he would let\nsome of the audience members speak. He asked the audience to be considerate of the Board's\ntime and to offer non-repetitive comments. Specifically, he stated, \"if there are some things we\nhaven't considered-I brought up a few things-if! failed to bring something up that you want\nto bring up, of course then the Board wants to hear that, but we don't want to hear about the left\ntum lane, pork chops, overnight parking, okay? Something new would be refreshing. \" 5\nSeven members of the public addressed the Board in opposition to the gas station,\nwithout interruption, for a total of approximately 16 minutes. The mayor then asked if anyone\npresent was in favor of the gas station. Seeing no one, the mayor indicated that he would let\nthree more people speak. Three more individuals addressed the Board to express their\nopposition to the gas station without interruption, for a total of approximately seven minutes.\nAfter permitting the gas station representatives to answer questions and allowing Board members\nto speak, the mayor made a fi nal request for public comment. In doing so, he stated,\n\"procedure... does require me to say 'is there any public comment,' but I've really heard all the\npublic comment. So, I'm not going to say no, but I'm asking you that you should read the room.\nAnd so, does anybody want to make a public comment?\" 6 He then permits three more\nindividuals to address the Board; all three spoke uninterrupted about their opposition to the gas\nstation, for a total of approximately four minutes. The Board then took a vote on the matter.\nIn his Request for Review, Mr. Bentley characterized the list of names in\nopposition to the gas station as an alternative to addressing the Board. Upon reviewing the\nrecording of the public comment period, however, no one was told that if they signed the list,\nthey could not also address the Board. To the contrary, as the Board pointed out in its response\nto this office, twelve individuals who signed the list also addressed the Board. The list was not a\nmandatory substitute for addressing the Board or a tool used by the Board to prohibit public\nVillage of Burr Ridge, Board of Trustees Meeting (October 23, 2023),\nhttps://www.youtube.com/watch?v= ROd2ZqnB_Is, at approximately l:24:35.\n4\n\nVillage of Burr Ridge, Board of Trustees Meeting (October 23, 2023),\nhttps://www.youtube.com/watch?v= ROd2ZqnB_ls, at approximately l:25:50.\n5\n\nVillag of Burr Ridg, Board of Trustee Meeting (October 23, 2023),\nhttp://www.youtube.com/watch?v= R0d2ZqnB_Is, at approximately 2:13:32.\n6\n\nOffice of the Illinois Attorney General\n\nMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch 15, 2024\nPage4\ncomment, rather it was a means of having individuals' opposition to the gas station placed in the\nrecord. Accordingly, the Board's use of the list did not violate section 2.06(g) ofOMA. 7\nMr. Bentley also alleged that the Board impermissibly prioritized elected officials\nover members of the public and ended public comment before all individuals who wished to\nspeak had addressed the Board. Although this office observed that two elected officials\naddressed the Board, there is no indication on the recording that those individuals were selected\nto the exclusion of members of the public. Further, the Board did not interfere with or prohibit\nany individual from addressing it during the meeting. The Board invited public comment on the\ngas station topic three times, including extending a final opportunity that three members of the\npublic used to address the Board. There is no indication that anyone was attempting to speak at\nthe conclusion of the final portion of the public comment period but was not permitted to do so.\nTherefore, this office is unable to conclude that the Board violated section 2.06(g) when it ended\nthe period for public comment.\nIn his reply, Mr. Bentley stated that \"[t]he purpose of the Request for Review\n* * * was to report a perceived 'chilling effect' on the public comment at the October 23, 2023\nmeeting of the Board[.]\" 8 \"The Citizen Advocacy Center is simply asserting that the way the\nmeeting and public comment was conducted actively discouraged rather than encouraged public\ncomment. \" 9 He also asserted that the Board violated the spirit of OMA in that \"[l]imiting public\ncomment simply because the governing body believes the vote will align with a majority of the\npublic commenter's viewpoints is not a justification to limit or discourage public comment.\nTaking names and addresses has the effect of creating a premature 'straw poll' that the Village\nBoard used as an excuse to minimize the importance of the public comment.\" 10\nIt is apparent that the mayor's comments throughout the period for public\ncomment were intended to discourage repetitive commentary and encourage individuals to share\n7lt follows that the Board did not violate OMA by asking individuals to include their addresses on\nthe list. Although the Attorney General has previously concluded that an established and recorded rule requiring\nspeakers to provide their home addresses prior to addressing it would impermissibly exceed the scope of the\nrulemaking contemplated by section 2.06(g), the Board never asked individuals to provide their addresses before\naddressing it. Ill. Att'y Gen. Pub. Acc. Op. o. 14-009, issued September 4, 2014, at 7 (\"Requiring a member of the\npublic to provide his or her complete home address prior to speaking may have a chilling effect on individuals who\nwish to speak at public meetings.\").\nLetter from Jack Bentley, Executive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau (January 26, 2024), at [l].\n8\n\n9 Letter from Jack Bentley, Executive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau (January 26, 2024), at 3. (Emphasis in original.)\nLetter from Jack Bentley, Ex cutive Director & Community Lawyer, Citizen Advocacy Center,\nto Laura S. Harter, D puty Bur au Chief, Public Acee s Bureau (January 26, 2024), at 3.\n10\n\nOffice of the Illinois Attorney General\n\nMr. Jack Bentley\nMr. Thomas J. Halleran\nMarch l 5, 2024\nPage5\nnew viewpoints. Despite the mayor's apparent exasperation with repetitive comments, he still\nsignaled to the audience that the Board would listen to whatever comments individuals wished to\nmake on the subject by permitting thi1teen individuals to deliver largely repetitive comments.\nNotably, his tone remained civil and he never intetTupted or reprimanded any members of the\npublic. Under these circumstances, this office is unable to conclude that the Board's actions in\nfacilitating the public comment period of the October 23, 2023, violated section 2.06(g) of OMA.\nThis office notes, however, that the statutory right to provide public comment is\nnot conditioned on the novelty of a speaker's comments. In the absence of an established and\nrecorded mle that restricts the total amount of public comment time or number of speakers, the\nBoard should be mindful that OMA generally does not permit a public body to unilaterally limit\ncomments that it perceives to be redundant. This office also recommends that the Board refrain\nfrom making comments that potentially could discourage members of the public from\nparticipating in public comment.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n1aura.harter@ilag.gov. This letter serves to close this file.\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n79472 o 206g proper mun\n\nOffice of the lllinoisArtomey General"}
{"id":1450,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-08-23","case_number":null,"request_numbers":["79869"],"title":"ECHO Joint Agreement Board did not violate OMA by removing employee from meeting","filename":"79869, issued August 23, 2024.pdf","rel_path":null,"word_count":1664,"summary":"A requester alleged that the ECHO Joint Agreement Executive Board violated the Open Meetings Act by removing him from a public meeting, but the PAC determined the removal was based on an internal employment dispute rather than an OMA violation.","plain_summary":"A school district employee claimed he was improperly kicked out of a public board meeting. The Attorney General's office investigated and found that the board's actions were related to an internal employment matter rather than a violation of open meeting laws. Consequently, the case was closed with no finding of a violation.","holding":"The Board did not violate the Open Meetings Act because the requester's removal from the meeting was an administrative action related to his employment status rather than a restriction on public access to an open meeting.","legal_question":"Whether the Board violated the Open Meetings Act by prohibiting an individual from attending a public meeting due to his status as an employee on administrative leave.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Exceptional Children Have Opportunities (ECHO) Joint Agreement Executive Board of Directors","requesting_party":"Anonymous (redacted in source)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting access","subject_description":"The requester alleged he was improperly removed from a public board meeting while on administrative leave from his employment with the district.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/79869, issued August 23, 2024.pdf","sha256":"a21ff59381b9eaec2e0b711bb9b4eb22e9e12d7c7ad1fed401170572a453261e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meeting","public access","employment dispute","board meeting"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"August 23, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Todd K. Hayden\nAttorney\nRobbins Schwartz\n550 Warrenville Road, Suite 460\nLisle, Illinois 60532\nthayden@robbins- schwartz. com\nRE: OMA Request for Review – 2024 PAC 79869\nDear\n\nand Mr. Hayden:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)).\nIn an e-mail to the Public Access Bureau on January 23, 2024,\nalleged he \" went to an open public meeting\" of the Exceptional Children Have Opportunities\nECHO) Joint Agreement Executive Board of Directors ( Board) \" and was kicked out by The\nAssistant [ Superintendent] Dr. Arresola and Superintendent Dr. Thomas.\" 1 In his Request for\nReview, received by this office on January 24, 2024,\nalleged that he attempted to\nattend the January 23, 2024, meeting, but was told he could not attend the meeting by Dr.\nArresola because he was on paid administrative leave as an ECHO employee.\nalleged\nthat he was improperly escorted out of the Board meeting, claiming he attended the meeting as a\nresident rather than an employee.\n1E- mail from\n\nto Public Access [ Bureau] ( January 23, 2024).\n\n\fMr. Todd K. Hayden\nAugust 23, 2024\nPage 2\nOn January 29, 2024, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board. This office asked the Board to provide copies of any notices, agendas,\nminutes, and recordings of the January 23, 2024, meeting for this office' s review, and a written\nresponse to the allegation that the Board violated OMA by prohibiting attendance at the meeting\nby\nOn February 8, 2024, the Public Access Bureau received the requested materials,\nabsent a recording of the meeting and the minutes from the meeting, from the Board' s attorney.\nThe Board' s attorney provided a complete version of its response for this office' s confidential\n2\nreview and a non- confidential version suitable to forward to\nThat same day, this\noffice forwarded a copy of the non-confidential response to\nhe submitted two\nsubstantive replies that same day.\nDETERMINATION\nSection 1 of OMA ( 5 ILCS 120/ 1 et seq. ( West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\" Section 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\"\nIn its non- confidential response to this office, the Board provided context about\nemployment with ECHO; at the time of the January 23, 2024, meeting, he \" was on a\npaid administrative leave pending an internal investigation into allegations of serious\nmisconduct, including failure to disclose on his employment application that he was terminated\nfrom another school district for misconduct toward students.\" 3 The Board noted that \"[ o]n\nJanuary 10, 2024, he was notified in writing of the fact that he was being placed on\nadministrative leave with pay during the investigation. Importantly, this written notice also\ninformed\nthat during the investigation he was not to appear on any ECHO Joint\nAgreement property unless otherwise notified.\" 4 The Board stated that when he arrived at the\n25 ILCS 120/3.5(c) (West 2022) (\" Upon request, the public body may also furnish the Public\nAccess Counselor with a redacted copy of the answer excluding specific references to any matters at issue. The\nPublic Access Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person\nsubmitting the request for review.\").\n3Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( February 7, 2024), at 2.\n4Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( February 7, 2024), at 2.\n\n\fMr. Todd K. Hayden\nAugust 23, 2024\nPage 3\nmeeting, \" ECHO then reminded\nof his paid administrative leave status and that he was not\nto be on ECHO property without permission during the investigation[.]\" 5 Further, the Board\nstated that \"\nultimately left the meeting but remained on property while calling the local\npolice department. The responding officer interviewed Dr. Thomas and was informed that\nwas an employee on paid administrative leave with a directive not to be on ECHO property\nwithout permission. The officer then escorted\noff of ECHO property.\" 6 The Board noted\nthat no public business conducted at the January 23, 2024, meeting pertained to\nin\ncontrast, the Board explained, \" ECHO has specifically invited\nto attend the February 13,\n2024 Board meeting as it will then discuss the results of its internal investigation and his\nemployment status.\" 7\nThe Board' s confidential response included additional context about the\nunderlying circumstances of\nplacement on administrative leave and made arguments\nfor why\nwas properly disallowed to attend the January 23, 2024, Board meeting.\nIn his first reply,\n\nargued:\n\nI number one am a resident and taxpayer of Echo Joint\nagreement District. Secondly Illinois State Statute supersedes\ndistrict laws or policies. I was attending the meeting as a resident\nof the district not as an employee. Also no classrooms are attached\nto the district office of Echo the School Pace itself sits on the other\nside of the building. I called the police because the Superintendent\nassaulted me by getting in my face and told me I am not to be at\nthe meeting. I was escorted out by the Board President Dr. Evans\nfrom the meeting. In accordance with the Illinois Open Meetings\nact nothing in the law restricts me from attending a public meeting\nthat is in accordance to the law. I am a duly paying tax member of\nthis body. * * * I will ask this is not dismissed as my rights were\nviolated as a citizen and taxpayer of the district.[ 8]\nIn his second reply,\n\nincluded the language of the policy section of the\n\n5Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( February 7, 2024), at 2.\n6Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( February 7, 2024), at 2.\n7Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( February 7, 2024), at 3.\n8E- mail from\n\nto [Katie] Goldsmith and Todd Hayden ( February 8, 2024).\n\n\fMr. Todd K. Hayden\nAugust 23, 2024\nPage 4\nOMA statute, 5 ILCS 120/ 1 et seq. ( West 2022), and argued that \"[ a] s stated Below the only\nexception is to closed meetings. This in fact was an open meeting to the public to discuss the\npublic business.\" 9\nOMA applies to \" public bodies\" as defined by the statute. 10 Thus, OMA applies\nto the Board but not to ECHO employees, law enforcement, or others. The Public Access\nCounselor' s authority to resolve disputes is limited to alleged violations of OMA and the\nFreedom of Information Act (FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2022)). 15 ILCS 205/ 7(c)( 3)\nWest 2022). Neither OMA nor FOIA governs a school district' s ability to place an employee on\nadministrative leave and/ or bar the employee from the premises. Therefore, this office does not\nhave the authority to overturn or limit the ECHO administration' s personnel decision as it relates\nto\npresence on ECHO property while placed on administrative leave for an\ninvestigation into matters pertaining to threats to student safety. See, for instance, Jones v. Bay\nShore Union Free School District, 170 F. Supp. 3d 420, 435 ( E.D.N.Y 2016) (\" There is nothing\nin\" New York's version of OMA (N.Y. Pub. Off. § 100 et seq.) \" limiting a board' s authority to\nrestrict access to an individual for safety reasons, while still keeping the meeting open to the\ngeneral public.\").\nargument that he sought to attend the meeting as a local taxpayer\nrather than an employee is unavailing, because the capacity in which he intended to attend the\nmeeting is irrelevant to the fact that he is a person whom the ECHO administration felt was\nnecessary to keep off school property as part of a misconduct investigation. These are not\ncircumstances in which\nwas restricted from attending a meeting pertaining to him\nspecifically, and there is no indication that the meeting was not otherwise accessible to the\ngeneral public. Given that\nwas removed from the January 23, 2024, meeting because\nof the administration' s disciplinary proceeding against him, rather than by the Board for a reason\npertaining to OMA, this office concludes that the Board did not violate OMA in connection with\nthe meeting.\n\n9E- mail from\n10\"\n\nto [Katie] Goldsmith and Todd Hayden ( February 8, 2024).\n\nPublic body\" includes:\n\nA]ll legislative, executive, administrative or advisory bodies of the State,\ncounties, townships, cities, villages, incorporated towns, school districts and all\nother municipal corporations, boards, bureaus, committees or commissions of\nthis State, and any subsidiary bodies of any of the foregoing including but not\nlimited to committees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue, except the General Assembly\nand committees or commissions thereof. 5 ILCS 120/ 1.02 ( West 2022).\n\n\fMr. Todd K. Hayden\nAugust 23, 2024\nPage 5\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n79869 o no vio sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Removal of an employee from a public board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79869/","full_text":"August 23, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Todd K. Hayden\nAttorney\nRobbins Schwartz\n550 Warrenville Road, Suite 460\nLisle, Illinois 60532\nthayden@robbins- schwartz. com\nRE: OMA Request for Review – 2024 PAC 79869\nDear\n\nand Mr. Hayden:\n\nThis determination letter is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/ 3.5(e) (West 2022)).\nIn an e-mail to the Public Access Bureau on January 23, 2024,\nalleged he \" went to an open public meeting\" of the Exceptional Children Have Opportunities\nECHO) Joint Agreement Executive Board of Directors (Board) \" and was kicked out by The\nAssistant [ Superintendent] Dr. Arresola and Superintendent Dr. Thomas.\" 1 In his Request for\nReview, received by this office on January 24, 2024,\nalleged that he attempted to\nattend the January 23, 2024, meeting, but was told he could not attend the meeting by Dr.\nArresola because he was on paid administrative leave as an ECHO employee.\nalleged\nthat he was improperly escorted out of the Board meeting, claiming he attended the meeting as a\n\nOn January 29, 2024, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board. This office asked the Board to provide copies of any notices, agendas,\nminutes, and recordings of the January 23, 2024, meeting for this office's review, and a written\nresponse to the allegation that the Board violated OMA by prohibiting attendance at the meeting\nby\nOn February 8, 2024, the Public Access Bureau received the requested materials,\nabsent a recording of the meeting and the minutes from the meeting, from the Board's attorney.\nThe Board's attorney provided a complete version of its response for this office's confidential\n2\nreview and a non- confidential version suitable to forward to\nThat same day, this\noffice forwarded a copy of the non-confidential response to\nhe submitted two\nsubstantive replies that same day.\nDETERMINATION\nSection 1 of OMA (5 ILCS 120/ 1 et seq. (West 2022)) provides that \" it is the\nintent of this Act to ensure that the actions of public bodies be taken openly and that their\ndeliberations be conducted openly.\" Section 1 of OMA further provides that members of the\npublic have \" the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\" Section 2.01 of OMA (5 ILCS 120/ 2.01 (West 2022)) provides that\na] ll meetings required by this Act to be public shall be held at specified times and places which\nare convenient and open to the public.\"\nIn its non- confidential response to this office, the Board provided context about\nemployment with ECHO; at the time of the January 23, 2024, meeting, he \" was on a\npaid administrative leave pending an internal investigation into allegations of serious\nmisconduct, including failure to disclose on his employment application that he was terminated\nfrom another school district for misconduct toward students.\" 3 The Board noted that \"[ o]n\nJanuary 10, 2024, he was notified in writing of the fact that he was being placed on\nadministrative leave with pay during the investigation. Importantly, this written notice also\ninformed\nthat during the investigation he was not to appear on any ECHO Joint\nAgreement property unless otherwise notified.\" 4 The Board stated that when he arrived at the\n25 ILCS 120/3.5(c) (West 2022) (\" Upon request, the public body may also furnish the Public\nAccess Counselor with a redacted copy of the answer excluding specific references to any matters at issue. The\nPublic Access Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person\nsubmitting the request for review.\").\n3 Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau (February 7, 2024), at 2.\n4 Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\n\nmeeting, \" ECHO then reminded\nof his paid administrative leave status and that he was not\nto be on ECHO property without permission during the investigation[.]\" 5 Further, the Board\nstated that \"\nultimately left the meeting but remained on property while calling the local\npolice department. The responding officer interviewed Dr. Thomas and was informed that\nwas an employee on paid administrative leave with a directive not to be on ECHO property\nwithout permission. The officer then escorted\noff of ECHO property.\" 6 The Board noted\nthat no public business conducted at the January 23, 2024, meeting pertained to\nin\ncontrast, the Board explained, \" ECHO has specifically invited\nto attend the February 13,\n2024 Board meeting as it will then discuss the results of its internal investigation and his\nemployment status.\" 7\nThe Board's confidential response included additional context about the\nunderlying circumstances of\nplacement on administrative leave and made arguments\nfor why\nwas properly disallowed to attend the January 23, 2024, Board meeting.\nIn his first reply,\n\nargued:\n\nI number one am a resident and taxpayer of Echo Joint\nagreement District. Secondly Illinois State Statute supersedes\ndistrict laws or policies. I was attending the meeting as a resident\nof the district not as an employee. Also no classrooms are attached\nto the district office of Echo the School Pace itself sits on the other\nside of the building. I called the police because the Superintendent\nassaulted me by getting in my face and told me I am not to be at\nthe meeting. I was escorted out by the Board President Dr. Evans\nfrom the meeting. In accordance with the Illinois Open Meetings\nact nothing in the law restricts me from attending a public meeting\nthat is in accordance to the law. I am a duly paying tax member of\nthis body. * * * I will ask this is not dismissed as my rights were\nviolated as a citizen and taxpayer of the district.[ 8]\nIn his second reply,\n\nincluded the language of the policy section of the\n\n5 Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau (February 7, 2024), at 2.\n6 Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau (February 7, 2024), at 2.\n7 Letter from Todd K. Hayden, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney General,\n\nOMA statute, 5 ILCS 120/ 1 et seq. (West 2022), and argued that \"[ a] s stated Below the only\nexception is to closed meetings. This in fact was an open meeting to the public to discuss the\npublic business.\" 9\nOMA applies to \" public bodies\" as defined by the statute. 10 Thus, OMA applies\nto the Board but not to ECHO employees, law enforcement, or others. The Public Access\nCounselor's authority to resolve disputes is limited to alleged violations of OMA and the\nFreedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. (West 2022)). 15 ILCS 205/ 7(c)(3)\nWest 2022). Neither OMA nor FOIA governs a school district's ability to place an employee on\nadministrative leave and/ or bar the employee from the premises. Therefore, this office does not\nhave the authority to overturn or limit the ECHO administration's personnel decision as it relates\nto\npresence on ECHO property while placed on administrative leave for an\ninvestigation into matters pertaining to threats to student safety. See, for instance, Jones v. Bay\nShore Union Free School District, 170 F. Supp. 3d 420, 435 (E.D.N.Y 2016) (\" There is nothing\nin\" New York's version of OMA (N.Y. Pub. Off. § 100 et seq.) \" limiting a board's authority to\nrestrict access to an individual for safety reasons, while still keeping the meeting open to the\ngeneral public.\").\nargument that he sought to attend the meeting as a local taxpayer\nrather than an employee is unavailing, because the capacity in which he intended to attend the\nmeeting is irrelevant to the fact that he is a person whom the ECHO administration felt was\nnecessary to keep off school property as part of a misconduct investigation. These are not\ncircumstances in which\nwas restricted from attending a meeting pertaining to him\nspecifically, and there is no indication that the meeting was not otherwise accessible to the\ngeneral public. Given that\nwas removed from the January 23, 2024, meeting because\nof the administration's disciplinary proceeding against him, rather than by the Board for a reason\npertaining to OMA, this office concludes that the Board did not violate OMA in connection with\nthe meeting.\n\n9E- mail from\n10\"\n\nto [Katie] Goldsmith and Todd Hayden (February 8, 2024).\n\nPublic body\" includes:\n\nA]ll legislative, executive, administrative or advisory bodies of the State,\ncounties, townships, cities, villages, incorporated towns, school districts and all\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n79869 o no vio sd"}
{"id":1451,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-04-26","case_number":null,"request_numbers":["80076"],"title":"Sugar Grove Board improperly entered closed session under litigation exception","filename":"80076, issued April 26, 2024.pdf","rel_path":null,"word_count":1982,"summary":"A Village Board member alleged that the Village of Sugar Grove improperly held a closed session to discuss a resolution regarding the removal of a board member. The PAC determined that the discussion did not fall under the litigation exception and requested the release of the closed session minutes and recording.","plain_summary":"A Village Board member complained that the Board held a secret meeting to discuss removing another member from office. The Attorney General's office reviewed the matter and found that the topic did not qualify for a closed session under the law. Consequently, the Board has been asked to release the minutes and recording of that secret meeting to the public.","holding":"The Village of Sugar Grove Board of Trustees improperly entered closed session under the litigation exception of the Open Meetings Act.","legal_question":"Whether the Village Board's discussion regarding a resolution to remove a board member fell within the litigation exception (5 ILCS 120/2(c)(11)) of the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(11)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sugar Grove","requesting_party":"A member of the Village of Sugar Grove Board of Trustees","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a closed session to discuss a resolution to remove a board member from office.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_11/Meaning-of-probable-or-imminent/80076, issued April 26, 2024.pdf","sha256":"b9f6a9a307f9a5d74c5b4359f7dcce78828944407736716c421de56cb9379bfc","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","litigation exception","meeting minutes","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE A 11 ORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL.\n\nApril 26, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nThe Honorable Jennifer Konen\nVillage President\nVillage of Sugar Grove\n[street address redacted for site publication -- see original PDF]\njkonen@sugargroveil. gov\nRE:\n\nOMA Request\n\nfor Review — 2024 PAC 80076\n\nDear and Ms. Konen:\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)).\nconcludes\n\nFor the reasons that follow, the Public Access Bureau\n\nthat the Village of Sugar Grove ( Village) Board of Trustees ( Board) held an improper\n\nclosed session discussion during its February 6, 2024, meeting.\nOn February 8, 2024, ,\n\nwho is a member of the Board,\n\nsubmitted a Request for Review concerning the closed session portion of the Board' s February 6,\nThe Village Board entered closed session under the exception — to the general\n\n2024, meeting.\n\nrequirement that public bodies conduct public\n\nbusiness openly — in section\n\n2( c)( 11) of OMA. I\n\nThat exception authorizes public bodies to hold closed session discussions concerning litigation\nthat\n\nis pending or \" probable or imminent[.]\"\n\nalleged that the Village President\n\npresented in closed session a resolution to request that the State' s Attorney file a writ ofquo\n\nwarranto to remove from the Board by declaring his office vacant. He asserted:\n5 ILCS 120/ 2( c)( 11) (\n\nWest 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n312) 814- 3000 • Fax: ( 312) 814. 3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can Hach us by using the 7- 1- 1 relay service.\nwww.\n\nll linoi sAttorncyGencra I. gov\n\nFax: ( 618) 529- 6416\n\n\fThe Honorable Jennifer Konen\nApril 26, 2024\nPage 2\nThere\n\nwas no need to\n\ngo to executive session.\n\nI had not mentioned\n\nanything about litigation. They used the premise of Potential\nLitigation to call the executive\n\nsession so that the Village President\n\ncould push her agenda to have me removed from office. The\nresolution should have been brought up under regular business,\ndiscussed if the board members wished to do so, then voted on.\n\nTherefore, with no threat of litigation, no executive session should\n\nhave been called and the resolution to pass the Writ of Quo\nWarranto should be invalidated due to the illegal executive\n\nsession. l21\n\nOn February 13, 2024, this office sent a copy of the Request for Review to the\nBoard and asked it provide copies of the open and closed session minutes and the closed session\nverbatim recording of the Boards February 6, 2024, meeting. This office also asked the Board to\nthat\n\nprovide a written answer toallegation\n\nthe section 2(\nc)(11)\n\nexception\n\ndid\n\nnot authorize\n\nthe Boards closed session discussion. On February 14,2024, the Board responded and provided\nthis office with the re uested materials. On February 20,\n2024, this office forwarded the\nBoard' s response to he;\nreplied on February 21,2024. DETERMINATION\nOMA\n\nis intended \" to ensure that the actions of public bodies be taken openly and that\ntheir deliberations\n\nbe\n\nconducted openly.\"5\n\nILCS 120/ 1\n\n(\nWest 2022).Accordingly,\n\nOMA\n\nrequires\n\nthat all meetings of a public body remain open to the public unless an exception in section\n2(\nc) of OMA is properly invoked. 5\nILCS 120/ 2(\na),c)\n( ( West 2022),as\namended by Public\nAct 103- 311, effective July 28,2023. The section 2(\nc) exceptions are to be \"strictly construed,\nextending\n\nonly to subjects clearly within their scope.\"5\n\nILCS 120/ 2(b) W(est\n\n2022),as\n\namended by Public Act 103-311, effective July 28,2023. Section\n2(\nc)(11) of OMA permits a public body to close a me ting to discuss: Litigation,\nwhen an action against, affecting or on behalf of the\nparticular public body has been filed and is pending before a court\nor administrative tribunal,or when the public body finds that\nan action is probable or imminent, in which case the basis for\nthe finding shall be recorded and entered into the minutes of\nthe closed meeting. (Emphasis\n\nmail from to\n\nadded.)2E-\n\nPublic Access [Bureau, Office of the Attorney General] F( ebruary\n\n2024). Office\n\nof the Illinois Attorney General\n\n8,\n\n\fThe Honorable Jennifer Konen\nApril 26, 2024\nPage 3\n\nWhere a public body provides no information that litigation has been filed, it \"must ( 1) find that\nthe litigation is probable or imminent and ( 2) record and enter into the minutes the basis for that\nfinding.\" Henry v. Anderson, 356 Ill. App. 3d 952, 956- 57 ( 2005). These requirements\nprevent public bodies from using the distant possibility of litigation as pretext for closing their\nmeetings\n\nto the public.\"\n\nHenry, 356 Ill. App. at 956- 57. \" In the absence of reasonable,\n\nspecifically identified grounds to believe that litigation was close at hand or more likely than not\nto ensue, the mere possibility that a lawsuit might be filed does not constitute ' probable' or\nimminent' litigation within the scope of section 2( c)( 11) of OMA.\" Ill. Att' y Gen. Pub. Acc. Op.\nNo. 16- 007, issued September 13, 2016, at 8.\nIn its response to this office, the Board confirmed that it entered closed session to\n\ndiscuss a resolution to request a petition for a writ ofquo warranto declaring the office held by\nas Village Trustee to be vacant.\n\nThe Board' s brief explanation\n\nstated that the\n\nVillage Attorney advised the Board to enter closed session \" under exception 2( c)( 11) to discuss\n\nprobable litigation. A quo warranto action is a court proceeding. A quo warranto action must be\n\ntaken or refused by the State's Attorney before an individual can take action. i3\nIn reply to that\n\nanswer, ;\n\ndisputed the Board' s claim that there was\n\npending or probable litigation, asserting that no lawsuits, including any quo warranto action, had\nbeen filed at the time of the meeting. He further argued:\nThe code section that the Village quotes in their letter, 2( c)( 11) to\ndiscuss probable litigation requires that there be probable or\nimminent litigation. There was no probable or imminent litigation\nas required under the Open Meetings Act.\n\nSecond, the Village\n\nPresident did not present any documents or statements that\nindicated litigation was probable. Therefore, there was no valid\n\nreason to go into executive session. t41\nFollowing the closed session, the Board returned to open session and voted to\nrequesting that the Kane Coun t ' State' s Attorney ( State' s Attorney) file a\nwrit\nOffice vacant based a provision of the\npetition for\nof quo warranto to declare\nMunicipal Code that provides:\napprove\n\na resolution\n\nLetter from Scott Koeppel, Village Administrator, Village of Sugar Grove, to Matthew G.\n\nGoodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General ( February 14,\n2024).\n\n4E- mail from to Matthew [ Goodman, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General ( February 21, 2024).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Jennifer Konen\nApril 26, 2024\nPage 4\n\nAn admission of guilt of a criminal offense that upon conviction\nwould disqualify the municipal officer from holding the office, in\nthe form of a written agreement with State or federal prosecutors to\nplead guilty to a felony, bribery, perjury, or other infamous crime\nunder State or federal law, constitutes\n\na resignation\n\nfrom that\n\noffice, effective on the date the plea agreement is made. For\npurposes of this Section, a conviction for an offense that\ndisqualifies a municipal officer from holding that office occurs on\nthe date of the return of a guilty verdict or, in the case of a trial by\nthe court, on the entry of a finding of guilt. 65 ILCS 5/ 3. 1- 1050( c)( 2) ( West 2022)\n\nBefore the vote, the Village President read a statement asserting that vacated his\noffice by entering into a deferred prosecution \" agreement that calls for an admission under oath\nto the elements of a charge relating to forging public documents[.]\" 5 On March 20, 2024, the\nState' s Attorney responded to the Board' s request. In a letter sent to the Village President, the\n\nState's Attorney rejected that interpretation of the Municipal Codeprovision and declined to file\npetition for writ of quo warranto: \"[ T] he record reflects\ndid not plead guilty\nto any offense in open court before a judge, nor did he accept a guilty plea or the terms of any\n\nthat\n\na\n\nguilty plea agreement after appropriate admonishments.\n\nWithout more, my office has no legal\n\nbasis to bring a Quo Warranto action against at this time.i6\nBased on our review of the relevant materials,\n\nthis office concludes that at the\n\ntime of the February 6, 2024, meeting, the Board did not have a sufficient basis to believe that\nlitigation was probable or imminent as required to enter closed session pursuant to section\n2( c)( 11) of OMA. A quo warranto petition must be brought by the Office of the Attorney\nGeneral or the county State' s Attorney' s Office, unless those offices refuse or fail to bring the\nsuit, in which case an individual\n\nmay file. 735 ILCS 5/ 18- 102 ( West 2022).\n\nAlthough the Board\n\ndiscussed its reasons for requesting the quo warranto petition, the closed session discussion\n\nillustrates that the Board understood there were competing arguments as to whether\nhad vacated his office and that the decision to file the petition rested with the State' s Attorney.\nThere is no indication that the Board had reasonable grounds to believe the State' s Attorney was\nmore likely than not to file the petition as it would have if, for example, the State' s Attorney had\nbeen consulted beforehand and signaled agreement with the Board' s interpretation of section 3. 1-\n\n10- 50( c)( 2) of the Municipal Code. Indeed, the State' s Attorney subsequently disagreed with\nthat interpretation and denied the request to file the petition. Even if the Board had a good faith\nbasis to believ\nhad vacated his office under the Municipal Code, any related legal\n5Village of Sugar Grove Board of Trustees, Meeting, February 6, 2024, Draft Minutes 7.\n6Letter from Jamie L. Mosser, Kane County State' s Attorney, to Jennifer Konen, President, Village\nof Sugar Grove ( March 20, 2024), at 2.\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Jennifer Konen\nApril 26, 2024\nPage 5\n\naction by the State' s Attorney was a mere possibility at the time of the meeting. Because there\nwas not a likelihood that litigation affecting the Board was probable or imminent, this office\nconcludes\nthat the Board improperly entered closed session pursuant to section 2( c)( 11) of OMA.\nIn accordance\n\nwith the conclusions\n\nexpressed\n\nin this determination,\n\nthis office\n\nrequests that the Board vote to make available for public inspection a copy of the verbatim\nrecording and the minutes of the closed session portion of its February 6, 2024, meeting.'\nThe Public Access Counselor has determined that resolution of this matter does not require the\n\nissuance of a binding opinion. This letter shall serve to close this matter. If you have any\nquestions, please contact me at matthew. goodman@ilag. gov.\n\nVery truly yours,\n\nMATT GOODMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n80076 o 2c11 improper mun\n\nrequests that this office invalidate the resolution passed at the February 6, 2024,\nmeeting due to the Board' s improper closed discussion. Although this office finds the Board's discussion fell outside\nof the scope of the section 2( c)( 11) exception, the appropriate remedy is not to invalidate the resolution properly\nadopted during open session, but disclosure of the closed session verbatim recording and closed session minutes.\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a board member removal","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80076/","full_text":"OFFICE OF THE A 11 ORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL.\n\nApril 26, 2024\n\nVia electronic mail\n\nVia electronic\n\nmail\n\nThe Honorable Jennifer Konen\nVillage President\nVillage of Sugar Grove\n[street address redacted for site publication -- see original PDF]\njkonen@sugargroveil. gov\nRE:\n\nOMA Request\n\nfor Review — 2024 PAC 80076\n\nDear and Ms. Konen:\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2022)).\nconcludes\n\nFor the reasons that follow, the Public Access Bureau\n\nthat the Village of Sugar Grove (Village) Board of Trustees (Board) held an improper\n\nclosed session discussion during its February 6, 2024, meeting.\nOn February 8, 2024,,\n\nwho is a member of the Board,\n\nsubmitted a Request for Review concerning the closed session portion of the Board's February 6,\nThe Village Board entered closed session under the exception — to the general\n\n2024, meeting.\n\nrequirement that public bodies conduct public\n\nbusiness openly — in section\n\n2(c)(11) of OMA. I\n\nThat exception authorizes public bodies to hold closed session discussions concerning litigation\nthat\n\nis pending or \" probable or imminent[.]\"\n\nalleged that the Village President\n\npresented in closed session a resolution to request that the State's Attorney file a writ ofquo\n\nwarranto to remove from the Board by declaring his office vacant. He asserted:\n5 ILCS 120/ 2(c)(11) (West 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n312) 814- 3000 • Fax: (312) 814. 3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can Hach us by using the 7- 1- 1 relay service.\n\nThere\n\nwas no need to\n\ngo to executive session.\n\nI had not mentioned\n\nanything about litigation. They used the premise of Potential\nLitigation to call the executive\n\nsession so that the Village President\n\ncould push her agenda to have me removed from office. The\nresolution should have been brought up under regular business,\ndiscussed if the board members wished to do so, then voted on.\n\nTherefore, with no threat of litigation, no executive session should\n\nhave been called and the resolution to pass the Writ of Quo\nWarranto should be invalidated due to the illegal executive\n\nsession. l21\n\nOn February 13, 2024, this office sent a copy of the Request for Review to the\nBoard and asked it provide copies of the open and closed session minutes and the closed session\nverbatim recording of the Boards February 6, 2024, meeting. This office also asked the Board to\nthat\n\nprovide a written answer toallegation\n\nthe section 2(c)(11)\n\nexception\n\ndid\n\nnot authorize\n\nthe Boards closed session discussion. On February 14,2024, the Board responded and provided\nthis office with the re uested materials. On February 20,\n2024, this office forwarded the\nBoard's response to he;\nreplied on February 21,2024. DETERMINATION\nOMA\n\nis intended \" to ensure that the actions of public bodies be taken openly and that\ntheir deliberations\n\nbe\n\nconducted openly.\"5\n\nILCS 120/ 1\n\n(West 2022).Accordingly,\n\nOMA\n\nrequires\n\nthat all meetings of a public body remain open to the public unless an exception in section\n2(c) of OMA is properly invoked. 5\nILCS 120/ 2(a),c)\n((West 2022),as\namended by Public\nAct 103- 311, effective July 28,2023. The section 2(c) exceptions are to be \"strictly construed,\nextending\n\nonly to subjects clearly within their scope.\"5\n\nILCS 120/ 2(b) W(est\n\n2022),as\n\namended by Public Act 103-311, effective July 28,2023. Section\n2(c)(11) of OMA permits a public body to close a me ting to discuss: Litigation,\nwhen an action against, affecting or on behalf of the\nparticular public body has been filed and is pending before a court\nor administrative tribunal,or when the public body finds that\nan action is probable or imminent, in which case the basis for\nthe finding shall be recorded and entered into the minutes of\nthe closed meeting. (Emphasis\n\nmail from to\n\nWhere a public body provides no information that litigation has been filed, it \"must (1) find that\nthe litigation is probable or imminent and (2) record and enter into the minutes the basis for that\nfinding.\" Henry v. Anderson, 356 Ill. App. 3d 952, 956- 57 (2005). These requirements\nprevent public bodies from using the distant possibility of litigation as pretext for closing their\nmeetings\n\nto the public.\"\n\nHenry, 356 Ill. App. at 956- 57. \" In the absence of reasonable,\n\nspecifically identified grounds to believe that litigation was close at hand or more likely than not\nto ensue, the mere possibility that a lawsuit might be filed does not constitute ' probable' or\nimminent' litigation within the scope of section 2(c)(11) of OMA.\" Ill. Att' y Gen. Pub. Acc. Op.\nNo. 16- 007, issued September 13, 2016, at 8.\nIn its response to this office, the Board confirmed that it entered closed session to\n\ndiscuss a resolution to request a petition for a writ ofquo warranto declaring the office held by\nas Village Trustee to be vacant.\n\nThe Board's brief explanation\n\nstated that the\n\nVillage Attorney advised the Board to enter closed session \" under exception 2(c)(11) to discuss\n\nprobable litigation. A quo warranto action is a court proceeding. A quo warranto action must be\n\ntaken or refused by the State's Attorney before an individual can take action. i3\nIn reply to that\n\nanswer,;\n\ndisputed the Board's claim that there was\n\npending or probable litigation, asserting that no lawsuits, including any quo warranto action, had\nbeen filed at the time of the meeting. He further argued:\nThe code section that the Village quotes in their letter, 2(c)(11) to\ndiscuss probable litigation requires that there be probable or\nimminent litigation. There was no probable or imminent litigation\nas required under the Open Meetings Act.\n\nSecond, the Village\n\nPresident did not present any documents or statements that\nindicated litigation was probable. Therefore, there was no valid\n\nreason to go into executive session. t41\nFollowing the closed session, the Board returned to open session and voted to\nrequesting that the Kane Coun t ' State's Attorney (State's Attorney) file a\nwrit\nOffice vacant based a provision of the\npetition for\nof quo warranto to declare\nMunicipal Code that provides:\napprove\n\na resolution\n\nLetter from Scott Koeppel, Village Administrator, Village of Sugar Grove, to Matthew G.\n\nGoodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 14,\n\nAn admission of guilt of a criminal offense that upon conviction\nwould disqualify the municipal officer from holding the office, in\nthe form of a written agreement with State or federal prosecutors to\nplead guilty to a felony, bribery, perjury, or other infamous crime\nunder State or federal law, constitutes\n\na resignation\n\nfrom that\n\noffice, effective on the date the plea agreement is made. For\npurposes of this Section, a conviction for an offense that\ndisqualifies a municipal officer from holding that office occurs on\nthe date of the return of a guilty verdict or, in the case of a trial by\nthe court, on the entry of a finding of guilt. 65 ILCS 5/ 3. 1- 1050(c)(2) (West 2022)\n\nBefore the vote, the Village President read a statement asserting that vacated his\noffice by entering into a deferred prosecution \" agreement that calls for an admission under oath\nto the elements of a charge relating to forging public documents[.]\" 5 On March 20, 2024, the\nState's Attorney responded to the Board's request. In a letter sent to the Village President, the\n\nState's Attorney rejected that interpretation of the Municipal Codeprovision and declined to file\npetition for writ of quo warranto: \"[ T] he record reflects\ndid not plead guilty\nto any offense in open court before a judge, nor did he accept a guilty plea or the terms of any\n\nthat\n\na\n\nguilty plea agreement after appropriate admonishments.\n\nWithout more, my office has no legal\n\nbasis to bring a Quo Warranto action against at this time.i6\nBased on our review of the relevant materials,\n\nthis office concludes that at the\n\ntime of the February 6, 2024, meeting, the Board did not have a sufficient basis to believe that\nlitigation was probable or imminent as required to enter closed session pursuant to section\n2(c)(11) of OMA. A quo warranto petition must be brought by the Office of the Attorney\nGeneral or the county State's Attorney's Office, unless those offices refuse or fail to bring the\nsuit, in which case an individual\n\nmay file. 735 ILCS 5/ 18- 102 (West 2022).\n\nAlthough the Board\n\ndiscussed its reasons for requesting the quo warranto petition, the closed session discussion\n\nillustrates that the Board understood there were competing arguments as to whether\nhad vacated his office and that the decision to file the petition rested with the State's Attorney.\nThere is no indication that the Board had reasonable grounds to believe the State's Attorney was\nmore likely than not to file the petition as it would have if, for example, the State's Attorney had\nbeen consulted beforehand and signaled agreement with the Board's interpretation of section 3. 1-\n\n10- 50(c)(2) of the Municipal Code. Indeed, the State's Attorney subsequently disagreed with\nthat interpretation and denied the request to file the petition. Even if the Board had a good faith\nbasis to believ\nhad vacated his office under the Municipal Code, any related legal\n5 Village of Sugar Grove Board of Trustees, Meeting, February 6, 2024, Draft Minutes 7.\n6 Letter from Jamie L. Mosser, Kane County State's Attorney, to Jennifer Konen, President, Village\n\naction by the State's Attorney was a mere possibility at the time of the meeting. Because there\nwas not a likelihood that litigation affecting the Board was probable or imminent, this office\nconcludes\nthat the Board improperly entered closed session pursuant to section 2(c)(11) of OMA.\nIn accordance\n\nwith the conclusions\n\nexpressed\n\nin this determination,\n\nthis office\n\nrequests that the Board vote to make available for public inspection a copy of the verbatim\nrecording and the minutes of the closed session portion of its February 6, 2024, meeting.'\nThe Public Access Counselor has determined that resolution of this matter does not require the\n\nissuance of a binding opinion. This letter shall serve to close this matter. If you have any\nquestions, please contact me at matthew. goodman@ilag. gov.\n\nVery truly yours,\n\nMATT GOODMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n80076 o 2c11 improper mun\n\nrequests that this office invalidate the resolution passed at the February 6, 2024,\nmeeting due to the Board's improper closed discussion. Although this office finds the Board's discussion fell outside\nof the scope of the section 2(c)(11) exception, the appropriate remedy is not to invalidate the resolution properly\nadopted during open session, but disclosure of the closed session verbatim recording and closed session minutes.\n\nOffice of the Illinois Attorney General"}
{"id":1452,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-03-01","case_number":null,"request_numbers":["80103"],"title":"Maywood Park District Board filled vacancy without quorum; PAC takes no further action","filename":"80103, issued March 1, 2024.pdf","rel_path":null,"word_count":863,"summary":"The requester alleged that the Maywood Park District Board of Commissioners violated the Open Meetings Act by appointing a new member during a meeting where only two of five members were present, failing to meet a quorum. The PAC determined that no further action was warranted, as the appointment was necessary to prevent an absurd result and allow the district to continue functioning.","plain_summary":"A citizen complained that the Maywood Park District Board held an illegal meeting because only two members were present to vote on a new appointment. The Attorney General's office reviewed the case and decided not to take action, reasoning that the board needed to fill the vacancy to keep the government functioning. This means the PAC will not pursue the complaint further.","holding":"The PAC concluded that no further action is warranted regarding the allegation that the Board violated the Open Meetings Act by filling a vacancy with a sub-quorum number of members.","legal_question":"Whether a public body violates the Open Meetings Act by appointing a new member to fill a vacancy when a quorum is not present, in order to prevent a total cessation of public business.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Maywood Park District Board of Commissioners","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting quorum","subject_description":"The appointment of a new board member by the remaining two members of a five-member board.","ocr_status":"reocr_tesseract","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Physical-presence-of-quorum-exceptions/80103, issued March 1, 2024.pdf","sha256":"fdad86034a985fd5a8876e2a81c3a75d0a8d39e33cfda26be2c55355563b64bc","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["quorum","board vacancy","Open Meetings Act","public body"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE TTORNEY GE ERAL\nSTATE OF ILLI OIS\n\nKW MER O L\nI I OR J,y Gl·NI RAI\n\nMarch 1, 2024\n\nVia electronic mail\n\nRE: OMA Request for Review-2024 PAC 80103\nDear\nhe Public Acee s Bureau has received your Reque t for Review alleging that the\nMaywood Park Di trict Board of Commi sioner (Board) may have violated the Open Meeting\nAct (OMA) on December 12, 2023. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted in this matter. 1\nYour Request for Review allege that after three of the five members of the Board\nresigned, the two remaining members convened a meeting on December 12 2023 where they\nvoted to appoint a third member Mr. Darryl Bass. You contend: \" ince there were only two\nmember of the five-per on board voting to fill the vacancy, they did not constitute a quorum and\naccordingly their action appointing Mr. Bass to the board was in violation of Section 1.02 of the\nOpen Meetings Act and therefore void. \"2\nSection l.02 of OMA (5 ILCS 120/1.02 (We t 2022)) defines a \"meeting\" ubject\nto the requirements of the Act as follows:\n\n1\n\n5 ILCS 120/3.S(b) (West 2022).\n\n20MA - Reque t for Review by Public Acces\n(undated; submitted February 9, 2024).\n500 South 2nd .'treet\nSpringlicld, Illinois 62701\n(217)7 2-IOOO•Fa.,.(217)782-7046\n\noun elor (PAC) form from\n\n115 uuth La 'alk ired\n01icneo, lllinoi, 60603\n(312) l+-3000• Fax. (312)814-3806\n\nlodi\"iduols \\\\itl1 hcanng orspc,'Ch disnbili11\n\n1745 Innovation Dri,·e, Sunc: C\nCarbondale, 111inoi� 62903\n(618 529-6400 • Fax: (618) 529-6416\n\ncnn n.,nch U!> by u ing tl1c 7-1-1 r Joy crvicc\n\n\\I vwlllinotsAnorncyGcncraL ov\n\n\fMarch 1, 2024\nPage 2\n\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means ( such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous\n\ninteractive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5- member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nAccordingly, for a 5- member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\n\nThe plain language of section 1. 02 indicates that three affirmative votes are\nIn this instance, however, you allege\nthat at the time of the vote in question, the five -member Board was comprised of two members\nnecessary for a five -member public body to take action.\ndue to resignations.\n\nSection 4- 1 of the Park District Code ( 70 ILCS 1205/ 4- 1 ( West 2022))\n\nt] he members of [a park district's] governing board shall constitute the corporate\nauthority for such district and a majority of such members shall constitute a quorum for said\nprovides\n\nthat \"[\n\nboard\n\nany meeting thereof.\"\n\nat\n\nSection 2- 25 of the Park District Code ( 70 ILCS 1205/ 2- 25 ( West\n\n2022)),\n\nwhich specifically govems the filling of park district board vacancies, provides that\nv] acancies shall be filled by appointment by a majority of the remaining members of the\nboard.\" The Illinois Supreme Court has advised that \"[ w]hen statutes covering the same subject\nconflict, more recently enacted statutes control over earlier ones, and more specific statutes\ncontrol over general statutes.\" In re Craig H., 2022 IL 126256, ¶ 26.\n\nSection 2- 25 of the Park District Code was both enacted more recently and\namended more recently than section 1. 02 of OMA, and section 2- 25 of the Park District Code\nmore specifically concerns making park district board appointments. Accordingly, the procedure\nfor filling a vacancy outlined in section 2- 25 of the Park District Code prevails over the general\nrequirement for a five -member public body to take action under section 1. 02 of OMA.\nMoreover, it is not evident how the Board could have continued to function as a deliberative\n\nbody without both of the current members convening a meeting and voting to appoint one or\nmore new members.\n\nIt would be unreasonable to construe the requirements of OMA as\n\nprecluding a public body from filling a vacancy in accordance with section 2- 25 of the Park\nDistrict Code, when its failure to fill a vacancy would render it unable to conduct public business\nand carry out its basic functions for a lengthy period of time. See Shively v. Belleville Township\nHigh School District No. 201, 329 Ill. App. 3d 1156, 1166 ( 2002) (\" A statute should not be\nconstrued\n\nto\n\nproduce\n\nan\n\nabsurd,\n\nunjust,\n\nor unreasonable\n\nresult.\").\n\nTherefore, your Request for\n\nReview does not indicate that the Board potentially violated OMA on December 12, 2023, and\nthis office has determined that no further action is warranted as to this matter.\n\nOffice of the Illinois Attorney General\n\n\fI.\nMarch 1, 2024\nPage 3\n\nThis file is closed. If you have any questions, please contact me at ( 773) 5907951 or joshua.jones@ilag. gov.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n80103 o no fi war pkd\ncc:\n\nVia electronic\n\nmail\n\nThe Honorable Dawn Williams\nPresident, Board of Commissioners\nMaywood\n\nPark District\n\n809 West Madison\nMaywood, Illinois 60153\nD.Williams® maywoodparkdistrict.\n\norg\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":"OFFICE OF THE TTORNEY GE ERAL\nSTATE OF ILLI OIS\n\nKW MER O L\nI I OR J,y Gl·NI RAI\n\nMarch 1, 2024\n\nVia electronic mail\n\nRE: OMA Request for Review-2024 PAC 80103\nDear\nhe Public Acee s Bureau has received your Reque t for Review alleging that the\nMaywood Park Di trict Board of Commi sioner (Board) may have violated the Open Meeting\nAct (OMA) on December 12, 2023. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted in this matter. 1\nYour Request for Review allege that after three of the five members of the Board\nresigned, the two remaining members convened a meeting on December 12 2023 where they\nvoted to appoint a third member Mr. Darryl Bass. You contend: \" ince there were only two\nmember of the five-per on board voting to fill the vacancy, they did not constitute a quorum and\naccordingly their action appointing Mr. Bass to the board was in violation of Section 1.02 of the\nOpen Meetings Act and therefore void. \"2\nSection l.02 of OMA (5 ILCS 120/1.02 (We t 2022)) defines a \"meeting\" ubject\nto the requirements of the Act as follows:\n\n1\n\n5 ILCS 120/3.S(b) (West 2022).\n\n20MA - Reque t for Review by Public Acces\n(undated; submitted February 9, 2024).\n500 South 2nd.'treet\nSpringlicld, Illinois 62701\n(217)7 2-IOOO•Fa.,.(217)782-7046\n\noun elor (PAC) form from\n\n115 uuth La 'alk ired\n01icneo, lllinoi, 60603\n(312) l+-3000• Fax. (312)814-3806\n\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous\n\ninteractive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a 5- member public body, a quorum of the members of a public\n\nbody held for the purpose of discussing public business.\nAccordingly, for a 5- member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\n\nThe plain language of section 1. 02 indicates that three affirmative votes are\nIn this instance, however, you allege\nthat at the time of the vote in question, the five -member Board was comprised of two members\nnecessary for a five -member public body to take action.\ndue to resignations.\n\nSection 4- 1 of the Park District Code (70 ILCS 1205/ 4- 1 (West 2022))\n\nt] he members of [a park district's] governing board shall constitute the corporate\nauthority for such district and a majority of such members shall constitute a quorum for said\nprovides\n\nthat \"[\n\nboard\n\nany meeting thereof.\"\n\nat\n\nSection 2- 25 of the Park District Code (70 ILCS 1205/ 2- 25 (West\n\n2022)),\n\nwhich specifically govems the filling of park district board vacancies, provides that\nv] acancies shall be filled by appointment by a majority of the remaining members of the\nboard.\" The Illinois Supreme Court has advised that \"[ w]hen statutes covering the same subject\nconflict, more recently enacted statutes control over earlier ones, and more specific statutes\ncontrol over general statutes.\" In re Craig H., 2022 IL 126256, ¶ 26.\n\nSection 2- 25 of the Park District Code was both enacted more recently and\namended more recently than section 1. 02 of OMA, and section 2- 25 of the Park District Code\nmore specifically concerns making park district board appointments. Accordingly, the procedure\nfor filling a vacancy outlined in section 2- 25 of the Park District Code prevails over the general\nrequirement for a five -member public body to take action under section 1. 02 of OMA.\nMoreover, it is not evident how the Board could have continued to function as a deliberative\n\nbody without both of the current members convening a meeting and voting to appoint one or\nmore new members.\n\nIt would be unreasonable to construe the requirements of OMA as\n\nprecluding a public body from filling a vacancy in accordance with section 2- 25 of the Park\nDistrict Code, when its failure to fill a vacancy would render it unable to conduct public business\nand carry out its basic functions for a lengthy period of time. See Shively v. Belleville Township\nHigh School District No. 201, 329 Ill. App. 3d 1156, 1166 (2002) (\" A statute should not be\nconstrued\n\nto\n\nproduce\n\nan\n\nabsurd,\n\nunjust,\n\nor unreasonable\n\nThis file is closed. If you have any questions, please contact me at (773) 5907951 or joshua.jones@ilag. gov.\nVery truly yours,\n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n80103 o no fi war pkd\ncc:\n\nVia electronic\n\nmail\n\nThe Honorable Dawn Williams\nPresident, Board of Commissioners\nMaywood\n\nPark District\n\n809 West Madison\nMaywood, Illinois 60153\nD.Williams® maywoodparkdistrict.\n\norg\n\nOffice of the Illinois Attorney General","plain_summary_pre_resummarize":null,"card_headline":"Appointment of a new board member by a sub-quorum","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80103/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAI\n\nMarch 1, 2024\n\nVia electronic mail\n\nRE: OMA Request for Review — 2024 PAC 80103\n\nThe Public Access Bureau has received your Request for Review alleging that the\nMaywood Park District Board of Commissioners (Board) may have violated the Open Meetings\nAct (OMA) on December 12, 2023. For the reasons set forth below, the Public Access Bureau\nconcludes that no further action is warranted in this matter. !\n\nYour Request for Review alleges that after three of the five members of the Board\nresigned, the two remaining members convened a meeting on December 12, 2023, where they\nvoted to appoint a third member, Mr. Darryl Bass. You contend: \"Since there were only two\nmembers of the five-person board voting to fill the vacancy, they did not constitute a quorum and\naccordingly their action appointing Mr. Bass to the board was in violation of Section | .02 of the\nOpen Meetings Act and therefore void.\"\n\nSection 1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines a \"meeting\" subject\nto the requirements of the Act as follows:\n\n'S ILCS 120/3.5(b) (West 2022).\n\n20MA - Request for Review by Public Access Counselor (PAC) form from aa\n(undated; submitted February 9, 2024).\n\n500 South 2nd Street 115 South LaSalle Sueet 1745 Innovation Drive, Sune C\nSpringtield, Whnois 62701 Chicago, Mlinois 60603 Carbondale, Hlinois 62903\n(217) 782-1090 + Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 + Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-]-1 relay service\n\nwww. HinoisAdomeyGeneral. gov\n\nMarch 1, 2024\nPage 2\n\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business or,\nfor a S-member public body, a quorum of the members of a public\nbody held for the purpose of discussing public business.\n\nAccordingly, for a 5-member public body, 3 members of\nthe body constitute a quorum and the affirmative vote of 3\nmembers is necessary to adopt any motion, resolution, or\nordinance, unless a greater number is otherwise required.\n\nThe plain language of section 1.02 indicates that three affirmative votes are\nnecessary for a five-member public body to take action. In this instance, however, you allege\nthat at the time of the vote in question, the five-member Board was comprised of two members\ndue to resignations. Section 4-1 of the Park District Code (70 ILCS 1205/4-1 (West 2022))\nprovides that \"[t]he members of [a park district's] governing board shall constitute the corporate\nauthority for such district and a majority of such members shall constitute a quorum for said\nboard at any meeting thereof.\" Section 2-25 of the Park District Code (70 ILCS 1205/2-25 (West\n2022)), which specifically governs the filling of park district board vacancies, provides that\n\"[vJacancies shall be filled by appointment by a majority of the remaining members of the\nboard.\" The Illinois Supreme Court has advised that \"[w]hen statutes covering the same subject\nconflict, more recently enacted statutes control over earlier ones, and more specific statutes\ncontrol over general statutes.\" Jn re Craig H., 2022 IL 126256, § 26.\n\nSection 2-25 of the Park District Code was both enacted more recently and\namended more recently than section 1.02 of OMA, and section 2-25 of the Park District Code\nmore specifically concerns making park district board appointments. Accordingly, the procedure\nfor filling a vacancy outlined in section 2-25 of the Park District Code prevails over the general\nrequirement for a five-member public body to take action under section 1.02 of OMA.\nMoreover, it is not evident how the Board could have continued to function as a deliberative\nbody without both of the current members convening a meeting and voting to appoint one or\nmore new members. It would be unreasonable to construe the requirements of OMA as\nprecluding a public body from filling a vacancy in accordance with section 2-25 of the Park\nDistrict Code, when its failure to fill a vacancy would render it unable to conduct public business\nand carry out its basic functions for a lengthy period of time. See Shively v. Belleville Township\nHigh School District No. 201, 329 Ill. App. 3d 1156, 1166 (2002) (\"A statute should not be\nconstrued to produce an absurd, unjust, or unreasonable result.\"). Therefore, your Request for\nReview does not indicate that the Board potentially violated OMA on December 12, 2023, and\nthis office has determined that no further action is warranted as to this matter.\n\nOffice of the Illinois Attorney General\n\nMarch 1, 2024\nPage 3\n\nThis file is closed. If you have any questions, please contact me at (773) 590-\n7951 or joshua.jones@ilag.gov.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n80103 0 no fi war pkd\n\ncc: Via electronic mail\nThe Honorable Dawn Williams\nPresident, Board of Commissioners\nMaywood Park District\n809 West Madison\nMaywood, Illinois 60153\nD.Williams@maywoodparkdistrict.org\n\nOffice of the Illinois Attorney General"}
{"id":1453,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-03-05","case_number":null,"request_numbers":["80205","80206"],"title":"Winnetka Village Council closed session minutes review not a violation","filename":"80205 80206, issued March 5, 2024.pdf","rel_path":null,"word_count":1305,"summary":"The requester alleged the Winnetka Village Council failed to reasonably review closed meeting minutes for ongoing confidentiality and contained errors in the minutes. The PAC determined that no further action was warranted after the Council acknowledged a scrivener's error and committed to correcting the minutes.","plain_summary":"A citizen complained that the Winnetka Village Council did not properly review its closed-session meeting minutes to see if they could be made public and pointed out errors in those minutes. The Attorney General's office found that the Council's minutes contained a de minimis error regarding who made a motion to enter closed session, and the Council's legal counsel noted that the Council will consider correcting the minutes at a future meeting. The Public Access Bureau concluded that no further action is warranted on either allegation.","holding":"The PAC concluded that no further action is warranted regarding the allegations of improper closed session minute review and clerical errors.","legal_question":"Whether the Village Council violated the Open Meetings Act by failing to reasonably review closed meeting minutes for ongoing confidentiality and by including inaccuracies in the minutes.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)","5 ILCS 120/2(c)(21)"],"public_body":"Winnetka Village Council","requesting_party":null,"pac_outcome":"Closed no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"The requester challenged the Village Council's review of closed meeting minutes and identified a clerical error in the minutes of a December 12, 2023, special meeting.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_a/80205 80206, issued March 5, 2024.pdf","sha256":"55b95a836f67aa07157f0aed6ee8b336ebe1344dbfabc3cb51e0684b2e06ed14","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","meeting minutes","Open Meetings Act","scrivener's error"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nMarch 5, 2024\n\nVia electronic mail\n\nRE: OMA Requests for Review — 2024 PAC 80205; 80206\n\nDear\n\nThe Public Access Bureau has received your two Requests for Review alleging\nthat the Winnetka Village Council ( Council) violated the Open Meetings Act (OMA) in\n\nconnection with its December 12, 2023, special meeting. For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in these matters.\nRequest for Review 2024 PAC 80205\n\nOn February 15, 2024, you submitted the above -referenced Request for Review\nalleging that the Council \" violated 5 ILCS 120/ 2. 06( d) at its December 12, 2023 closed meeting,\nfirst made public in a resolution presented in its open meeting on December 19, 2023. [ You] do\nnot believe the Village \" reasonably\" reviewed closed meeting minutes to make a determination\nof whether\n\nor\n\nnot\n\nthey require ongoing confidentiality.\"'\n\nThe minutes of the December\n\n12, 2023,\n\nmeeting indicate that the Board entered closed section pursuant to the exceptions in section\n2( c)( 11)\n\n2\n\nfor pending\n\nor probable\n\nRequest\n\nfor Review\n\nand imminent litigation and section 2( c)( 21)\n\n3\n\nfor \"[ d] iscussion\n\nto Public Access Counselor, Office of the\n\nAttorney General ( February 15, 2024), at 4.\n25 ILCS 120/ 2( c)( 11) ( West 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n35 ILCS 120/ 2( c)( 21) ( West 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\nwww. IllinoisAttomeyGeneral.\n\ngov\n\nFax: ( 618) 529- 6116\n\n\fMarch 5, 2024\nPage 2\n\nof minutes of meetings lawfully closed under this Act, whether for purposes of approval by the\nbody of the minutes or semi- annual review of the minutes as mandated by Section 2. 06.\" You\nstated that the Board spent 42 minutes in closed session, and that the resolution\nDecember\n\napproved\n\non\n\n19, 2023, indicates that the Board approved the minutes of 42 closed meetings\n\nand\n\ndetermined that those minutes and the minutes of 75 other closed meetings required ongoing\nconfidentiality.\nSection 2. 06( d) of OMA ( 5 ILCS 120/ 2. 06( d) ( West 2022)) sets forth the\n\nrequirement for a public body to periodically review its closed session minutes and determine the\ncontinued need for confidentiality:\n\nd) Each public body shall periodically meet to review\nminutes of all closed meetings. Meetings to review minutes shall\n\noccur every 6 months, or as soon thereafter as is practicable, taking\ninto account the nature and meeting schedule of the public body.\nAt such meetings a determination\n\nshall be made, and reported\n\nin an open session that ( 1) the need for confidentiality still exists as\nto all or part of those minutes or (2) that the minutes or portions\nthereof no longer require confidential\n\ntreatment and are available\n\nfor public inspection. The failure of a public body to strictly\ncomply with the semi- annual review of closed session written\nminutes * * *\n\nshall not cause the written minutes or related\n\nverbatim record to become public or available for inspection in any\njudicial proceeding, other than a proceeding involving an alleged\nviolation of this Act, if the public body, within 60 days of\ndiscovering its failure to strictly comply with the technical\nrequirements\n\nof this subsection, reviews the closed session minutes\n\nand determines and thereafter reports in open session that either ( 1)\n\nthe need for confidentiality still exists as to all or part of the\nminutes or verbatim record, or ( 2) that the minutes or recordings or\n\nportions thereof no longer require confidential treatment and are\navailable for public inspection.\nAs outlined above, section 2. 06( d) of OMA plainly requires public bodies to meet\napproximately every six months to review closed session minutes and thereafter report in open\nsession whether those minutes require continued confidentiality or whether certain minutes may\nbe made publicly available. OMA does not, however, set forth any procedure for a public body\nto follow for conducting the reviews or require a public body to spend a certain amount of time\nreviewing minutes. Although it would be consistent with the spirit of OMA, and section 2. 06( d)\nspecifically, for public bodies to substantively review all meeting minutes before determining\nthat minutes still require confidentiality, the Act does not contain any language that prescribes\n\nOffice of the Illinois Attorney General\n\n\fMarch 5, 2024\nPage 3\n\nthe manner of the reviews or that limits public bodies' discretion to determine during semiannual reviews whether or not closed session minutes must be disclosed. Accordingly, the\nPublic Access Bureau concludes\n\nthat no further action is warranted with respect to this\n\nallegation.\n\nRequest for Review 2024 PAC 80206\n\nOn February 15, 2024, you submitted a second Request for Review alleging that\nthe Council violated OMA in connection with the accuracy of its December 12, 2023, special\n\nmeeting minutes. Specifically, you alleged that, despite being counted as \" absent\" in the roll call\nfor those minutes, Council Trustee Robert Dearborn was later recorded in the minutes as having\nmade a motion to enter into closed session discussion.\n\nSection 2. 06( a) of OMA ( 5 ILCS 120/ 2. 06( a) ( West 2022)) provides that \"[ a] ll\npublic bodies shall keep written minutes of all their meetings[,]\" which are to include, in relevant\nand ( 3) a\npart, \" the members of the public body recorded as either present or absent * * *;\n\nsummary of discussion on all matters proposed, deliberated, or decided, and a record of any\ntaken.\"\nHowever, the Public Access Bureau has previously determined that \"de minimis\n\nvotes\n\ninconsistencies\n\nin minutes concerning * * *\n\nwho made motions to enter or adjourn closed session\n\ndo not deprive the public of any meaningful information concerning the resulting vote or the\nsubstance\nof closed session discussions.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 61021, issued\nDecember 19, 2019, at 2. This office has reviewed the December 12, 2023, minutes and\n\nconfirms the alleged discrepancy. However, because this plainly appears to be a de minimis\nerror in connection with a procedural vote to enter closed session, the Public Access Bureau\nconcludes\n\nthat no further action is warranted with respect to this allegation.\n\nWith that, in consideration of the Public Access Counselor's charge to provide\nadvice and education to both the public and public bodies, on March 1, 2024, the Deputy Public\nAccess Counselor contacted the Council to inform it of the discrepancy in its December 12,\n2023, meeting minutes. Later that same day, the Council's legal counsel replied, confirming the\nscrivener' s error reflecting then -absent Trustee Dearborn' s motion to enter closed session and\nnoted that the Council will consider correcting the December 12, 2023, special meeting minutes\n\nat a future meeting.\n\nOffice of the Illinois Attorney General\n\n\fMarch 5, 2024\nPage 4\n\nThese files are closed. If you have any questions, please contact me at the\nSpringfield address listed on the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER\n\nR. BOGGS\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n80205 80206 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Chris Rintz\nPresident, Village of Winnetka\n\n510 Green Bay Road\nWinnetka, Illinois 60093\n\nCRintz@Winnetka.org\nVia electronic mail\nMr. Benjamin Schuster\nElrod Friedman, LLP\n\nOBO Village of Winnetka\n325 North LaSalle Street, Suite 450\nChicago,\n\nIllinois 60654\n\nBenjamin. Schuster@E1rodFriedman.\n\ncom\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village council's review of closed-session minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80205/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nOF ILLINOIS\n\nRAOUL\n\nATTORNEY GENERAI.\n\nMarch 5, 2024\n\nVia electronic mail\n\nRE: OMA Requests for Review — 2024 PAC 80205; 80206\n\nDear\n\nThe Public Access Bureau has received your two Requests for Review alleging\nthat the Winnetka Village Council (Council) violated the Open Meetings Act (OMA) in\n\nconnection with its December 12, 2023, special meeting. For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in these matters.\nRequest for Review 2024 PAC 80205\n\nOn February 15, 2024, you submitted the above -referenced Request for Review\nalleging that the Council \" violated 5 ILCS 120/ 2. 06(d) at its December 12, 2023 closed meeting,\nfirst made public in a resolution presented in its open meeting on December 19, 2023. [ You] do\nnot believe the Village \" reasonably\" reviewed closed meeting minutes to make a determination\nof whether\n\nor\n\nnot\n\nthey require ongoing confidentiality.\"'\n\nThe minutes of the December\n\n12, 2023,\n\nmeeting indicate that the Board entered closed section pursuant to the exceptions in section\n2(c)(11)\n\n2\n\nfor pending\n\nor probable\n\nRequest\n\nfor Review\n\nand imminent litigation and section 2(c)(21)\n\n3\n\nfor \"[ d] iscussion\n\nto Public Access Counselor, Office of the\n\nAttorney General (February 15, 2024), at 4.\n25 ILCS 120/ 2(c)(11) (West 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n35 ILCS 120/ 2(c)(21) (West 2022), as amended by Public Act 103- 311, effective July 28, 2023.\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n1745 Innovation Drive, Suite C\nCarbondale. Illinois 62903\n\n312) 814- 3000 • Fax: (312) 814- 3806\n\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can mach us by using the 7- 1- 1 relay service.\n\nof minutes of meetings lawfully closed under this Act, whether for purposes of approval by the\nbody of the minutes or semi- annual review of the minutes as mandated by Section 2. 06.\" You\nstated that the Board spent 42 minutes in closed session, and that the resolution\nDecember\n\napproved\n\non\n\n19, 2023, indicates that the Board approved the minutes of 42 closed meetings\n\nand\n\ndetermined that those minutes and the minutes of 75 other closed meetings required ongoing\nconfidentiality.\nSection 2. 06(d) of OMA (5 ILCS 120/ 2. 06(d) (West 2022)) sets forth the\n\nrequirement for a public body to periodically review its closed session minutes and determine the\ncontinued need for confidentiality:\n\nd) Each public body shall periodically meet to review\nminutes of all closed meetings. Meetings to review minutes shall\n\noccur every 6 months, or as soon thereafter as is practicable, taking\ninto account the nature and meeting schedule of the public body.\nAt such meetings a determination\n\nshall be made, and reported\n\nin an open session that (1) the need for confidentiality still exists as\nto all or part of those minutes or (2) that the minutes or portions\nthereof no longer require confidential\n\ntreatment and are available\n\nfor public inspection. The failure of a public body to strictly\ncomply with the semi- annual review of closed session written\nminutes * * *\n\nshall not cause the written minutes or related\n\nverbatim record to become public or available for inspection in any\njudicial proceeding, other than a proceeding involving an alleged\nviolation of this Act, if the public body, within 60 days of\ndiscovering its failure to strictly comply with the technical\nrequirements\n\nof this subsection, reviews the closed session minutes\n\nand determines and thereafter reports in open session that either (1)\n\nthe need for confidentiality still exists as to all or part of the\nminutes or verbatim record, or (2) that the minutes or recordings or\n\nportions thereof no longer require confidential treatment and are\navailable for public inspection.\nAs outlined above, section 2. 06(d) of OMA plainly requires public bodies to meet\napproximately every six months to review closed session minutes and thereafter report in open\nsession whether those minutes require continued confidentiality or whether certain minutes may\nbe made publicly available. OMA does not, however, set forth any procedure for a public body\nto follow for conducting the reviews or require a public body to spend a certain amount of time\nreviewing minutes. Although it would be consistent with the spirit of OMA, and section 2. 06(d)\nspecifically, for public bodies to substantively review all meeting minutes before determining\nthat minutes still require confidentiality, the Act does not contain any language that prescribes\n\nthe manner of the reviews or that limits public bodies' discretion to determine during semiannual reviews whether or not closed session minutes must be disclosed. Accordingly, the\nPublic Access Bureau concludes\n\nthat no further action is warranted with respect to this\n\nallegation.\n\nRequest for Review 2024 PAC 80206\n\nOn February 15, 2024, you submitted a second Request for Review alleging that\nthe Council violated OMA in connection with the accuracy of its December 12, 2023, special\n\nmeeting minutes. Specifically, you alleged that, despite being counted as \" absent\" in the roll call\nfor those minutes, Council Trustee Robert Dearborn was later recorded in the minutes as having\nmade a motion to enter into closed session discussion.\n\nSection 2. 06(a) of OMA (5 ILCS 120/ 2. 06(a) (West 2022)) provides that \"[ a] ll\npublic bodies shall keep written minutes of all their meetings[,]\" which are to include, in relevant\nand (3) a\npart, \" the members of the public body recorded as either present or absent * * *;\n\nsummary of discussion on all matters proposed, deliberated, or decided, and a record of any\ntaken.\"\nHowever, the Public Access Bureau has previously determined that \"de minimis\n\nvotes\n\ninconsistencies\n\nin minutes concerning * * *\n\nwho made motions to enter or adjourn closed session\n\ndo not deprive the public of any meaningful information concerning the resulting vote or the\nsubstance\nof closed session discussions.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 61021, issued\nDecember 19, 2019, at 2. This office has reviewed the December 12, 2023, minutes and\n\nconfirms the alleged discrepancy. However, because this plainly appears to be a de minimis\nerror in connection with a procedural vote to enter closed session, the Public Access Bureau\nconcludes\n\nthat no further action is warranted with respect to this allegation.\n\nWith that, in consideration of the Public Access Counselor's charge to provide\nadvice and education to both the public and public bodies, on March 1, 2024, the Deputy Public\nAccess Counselor contacted the Council to inform it of the discrepancy in its December 12,\n2023, meeting minutes. Later that same day, the Council's legal counsel replied, confirming the\nscrivener's error reflecting then -absent Trustee Dearborn's motion to enter closed session and\nnoted that the Council will consider correcting the December 12, 2023, special meeting minutes\n\nThese files are closed. If you have any questions, please contact me at the\nSpringfield address listed on the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER\n\nR. BOGGS\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n80205 80206 o no fi war mun\ncc:\n\nVia electronic mail\nThe Honorable Chris Rintz\nPresident, Village of Winnetka\n\n510 Green Bay Road\nWinnetka, Illinois 60093\n\nCRintz@Winnetka.org\nVia electronic mail\nMr. Benjamin Schuster\nElrod Friedman, LLP\n\nOBO Village of Winnetka\n325 North LaSalle Street, Suite 450\nChicago,\n\nIllinois 60654\n\nBenjamin. Schuster@E1rodFriedman.\n\ncom\n\nOffice of the Illinois Attorney General"}
{"id":1455,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-02-29","case_number":null,"request_numbers":["80267"],"title":"Oswego Library Board did not violate OMA by extending public comment time limits","filename":"80267, issued February 29, 2024.pdf","rel_path":null,"word_count":1300,"summary":"A requester alleged that the Oswego Public Library District Board of Trustees violated the Open Meetings Act by selectively enforcing public comment time limits to favor speakers who agreed with the Board. The PAC determined that the Board's decision to extend time limits did not violate OMA and closed the file.","plain_summary":"A citizen complained that a library board was biased because it let some people speak longer than the rules allowed if they agreed with the board, while allegedly restricting others. The Attorney General's office reviewed the complaint and decided that the board's actions did not break the Open Meetings Act. Consequently, the office closed the case without taking further action.","holding":"The PAC determined that the Board did not violate the Open Meetings Act by allowing certain speakers to exceed established public comment time limits.","legal_question":"Whether a public body violates the Open Meetings Act by selectively extending public comment time limits for certain speakers.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Oswego Public Library District Board of Trustees","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"public comment","subject_description":"The requester alleged that the Board selectively enforced public comment time limits to favor speakers who supported the Board's position.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/Maintaining-order-and-decorum/80267, issued February 29, 2024.pdf","sha256":"d73ca3654c71bc24248373cc2112d9f5dc1ecf119fa4985d2484b6e2f7970ac5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","library board","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE i111 ORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL.\n\nFebruary 29, 2024\n\nVia electronic mail\n\nOMA Request for Review:\n\nRE:\n\n2024 PAC 80267\n\nDear\n\nOn February 22, 2024, this office received your Request for Review in which you\nalleged that the Oswego Public Library District Board of Trustees ( Board) violated the\nI\nrequirements of the Open Meetings Act ( OMA)\nduring its January 24, 2024, meeting. For the\nreasons discussed\n\nbelow, this office has determined\n\nthat no further action is warranted\n\nin this\n\nmatter.\n\nYour Request for Review alleges that the Board violated OMA during its January\n24, 2024, meeting by allowing \" three members of the public to exceed the three minute time\nlimit with comments that were in agreement with the Board. The Board also permitted total\n\npublic comments to exceed the 30 minute limit, to allow time for sympathetic speakers. i2 You\nalso\n\nalleged\n\nthat \"[\n\na] t other meetings, when speakers expressed views that opposed the opinion\n\nof the Board President, the President attempted to stop, restrict, or eliminate their speech. The\nBoard is selectively applying their policy and disregarding the First Amendment by favoring or\n\nrestricting speech based upon content. i3 With your Request for Review, you included a copy of\nthe Board's rules for public comment, which indicate that the public participation period would\nlast for a maximum of 30 minutes, with each person permitted to speak for three minutes. The\nrules also indicate that individuals are encouraged to sign in if they wish to address the Board.\n15 ILCS 120/ 1 et seq. ( West 2022).\n2E- mail\n\nfrom\n\nto [ Public Access] ( February 22, 2024).\n\nE- mail from\n\nto [ Public Access] ( February 22, 2024).\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: ( 217) 782- 7046\n\n312) 814- 3000 • Fax: ( 312) 814. 3806\n\n1745 Innovation Dace, SuitcC\nCarbondale, Illinois 62903\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can Hach us by using the 7- 1- 1 relay service.\nwww.\n\nll linoi sAttorncyGencra I. gov\n\nFax: ( 618) 529- 6416\n\n\fFebruary 29, 2024\nPage 2\nSection 2. 06( g) of OMA4 provides\n\na] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" A public body violates section 2. 06( g) of OMA when it: ( 1) prohibits a member of the\npublic from addressing its members in a manner inconsistent with its established and recorded\nrules, or (2) prohibits a member of the public from providing public comment pursuant to its\nestablished and recorded rules but those rules unreasonably restrict that person' s right to address\npublic officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\nThis office has previously determined that to warrant further action by this office, a Request for\nReview concerning public comment must set forth facts indicating that a member of the public\nattempted to address public officials during an open meeting but was improperly restricted by the\npublic body from doing so. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 42017, issued\nJune 1, 2016, at 1- 2 ( determining that a Request for Review alleging that a board' s public\ncomment rules violated section 2. 06( g) of OMA did not warrant further inquiry because the\nRequest for Review did not allege that anyone who attempted to address the board during an\nopen meeting was improperly denied an opportunity to speak).\nthat \"[\n\nThis office has reviewed the recording of the public comment portion of the\nJanuary 24, 2024, meeting. Fifteen members of the public addressed the Board, four members of\nthe public spoke for longer than three minutes, and the Board permitted the period for public\ncomment to last approximately 37 minutes. Three of the members who spoke for longer than\n\nthree minutes appeared to speak favorably of the Board; 5 one member appeared to oppose the\nposition of the Board.' One of the individuals who spoke favorably of the Board was interrupted\nand reminded of the three minute limitation.'\nThis office also observed that the Board permitted\n\na member of the public to address it even though that individual had not signed in and the public\ncomment period was already over 30 minutes. That individual' s viewpoint appeared to oppose\n\nthe position of the Board. 8\nYou do not allege that anyone was prohibited from addressing the Board for at\nleast three minutes during the January 24, 2024, meeting, rather you allege that the Board\n\n45 ILCS 120/ 2.06( g) ( West 2022).\n\n50swego Public Library District Board ofTrustees, Meeting (January 24, 2024), at approximately\n34: 30 - 37: 52; 40: 35 - 44: 06; 44: 15 -\n\n49: 09.\n\nOswego Public Library District Board of Trustees, Meeting ( January 24, 2024), at approximately\n49: 20 - 52: 46.\n\n70swego Public Library District Board ofTrustees, Meeting (January 24, 2024), at approximately\n49: 00.\n\n80swego Public Library District Board of Trustees, Meeting (January 24, 2024), at approximately\n1: 09: 40.\n\nOffice of the Illinois Attorney General\n\n\fFebruary 29, 2024\nPage 3\n\nviolated OMA by permitting certain individuals to speak for more than three minutes. This\noffice has confirmed\n\nthat no one' s comments\n\nwere restricted to less than three minutes.\n\nThe primary purpose of adopting rules governing public comment pursuant to\nsection 2.06(g) of OMA is to accommodate the speaker's statutory right to address the public\nbody, while ensuring that the public body can maintain order and decorum at public meetings.\"\nIll. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 6. Unlike, for example,\na public body cutting off a comment before it reached the time limit listed in its rules, allowing a\nperson to deliver a comment longer than the time limit generally would not violate section\n2. 06(g) of OMA. Although a public body must abide by its established and recorded rules when\nrestricting public comment, a public body does not violate OMA when it allows comments to be\ngiven or read. See III. Att'y Gen. PAC Req. Rev. Ltr. 64514, issued September 1, 2020, at 2\nconcluding that a public body did not violate OMA when it read a public comment that was\nlonger than permitted by the public body' s rules). Based on this office's review of the recording\nof the January 24, 2024, meeting, there is no indication that the Board selectively permitted\ncertain speakers to exceed the three -minute time period in order to deprive other members of the\npublic of an opportunity to participate in public comment or limit their ability to speak against\nthe Board' s position. Therefore, the Board did not violate OMA by permitting some speakers to\naddress it for longer than three minutes. Because your Request for Review did not allege facts\nsupporting the allegation that the Board violated section 2. 06( g) of OMA, this office will take no\nfurther action in this matter.'\n\nThis file is closed. If you have any questions, please contact me at\nlaura. harter@ilag. gov.\nVery truly yours,\n\nLAURA\n\nS. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n80267 o no fi war lib\n\ncc:\n\nVia electronic mail\n\nThe Honorable Terry Tamblyn\nPresident, Board of Trustees\n\nOswego Public Library District\n32 West Jefferson Street\nOswego, Illinois 60543\nttamblyn@oswego.\n\nlib. il. us\n\n95 ILCS 120/ 3. 5( a) ( West\n\n2022) (\"[\n\na] person who believes that a violation of this Act by a public\n\nbody has occurred may file a request for review with the Public Access Counselor[,]\"\ninclude a summary of the facts supporting the allegation.\").\n\nOffice of the Illinois Attorney General\n\nand that the submission \" must\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Selective enforcement of public comment time limits","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80267/","full_text":"OFFICE OF THE i111 ORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME\n\nRAOUL\n\nATTORNEY GENERAL.\n\nFebruary 29, 2024\n\nVia electronic mail\n\nOMA Request for Review:\n\nRE:\n\n2024 PAC 80267\n\nDear\n\nOn February 22, 2024, this office received your Request for Review in which you\nalleged that the Oswego Public Library District Board of Trustees (Board) violated the\nI\nrequirements of the Open Meetings Act (OMA)\nduring its January 24, 2024, meeting. For the\nreasons discussed\n\nbelow, this office has determined\n\nthat no further action is warranted\n\nin this\n\nmatter.\n\nYour Request for Review alleges that the Board violated OMA during its January\n24, 2024, meeting by allowing \" three members of the public to exceed the three minute time\nlimit with comments that were in agreement with the Board. The Board also permitted total\n\npublic comments to exceed the 30 minute limit, to allow time for sympathetic speakers. i2 You\nalso\n\nalleged\n\nthat \"[\n\na] t other meetings, when speakers expressed views that opposed the opinion\n\nof the Board President, the President attempted to stop, restrict, or eliminate their speech. The\nBoard is selectively applying their policy and disregarding the First Amendment by favoring or\n\nrestricting speech based upon content. i3 With your Request for Review, you included a copy of\nthe Board's rules for public comment, which indicate that the public participation period would\nlast for a maximum of 30 minutes, with each person permitted to speak for three minutes. The\nrules also indicate that individuals are encouraged to sign in if they wish to address the Board.\n15 ILCS 120/ 1 et seq. (West 2022).\n2E- mail\n\nfrom\n\nto [ Public Access] (February 22, 2024).\n\nE- mail from\n\nto [ Public Access] (February 22, 2024).\n\n500 South 2nd Street\n\n115 South LaSalle Street\n\nSpringfield, Illinois 62701\n\nChicago, Illinois 60603\n\n217) 782- 1090 •\n\nFax: (217) 782- 7046\n\n312) 814- 3000 • Fax: (312) 814. 3806\n\n1745 Innovation Dace, SuitcC\nCarbondale, Illinois 62903\n618) 529- 6400 •\n\nIndividuals with hearing or speech disabilities can Hach us by using the 7- 1- 1 relay service.\n\nSection 2. 06(g) of OMA4 provides\n\na] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" A public body violates section 2. 06(g) of OMA when it: (1) prohibits a member of the\npublic from addressing its members in a manner inconsistent with its established and recorded\nrules, or (2) prohibits a member of the public from providing public comment pursuant to its\nestablished and recorded rules but those rules unreasonably restrict that person's right to address\npublic officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\nThis office has previously determined that to warrant further action by this office, a Request for\nReview concerning public comment must set forth facts indicating that a member of the public\nattempted to address public officials during an open meeting but was improperly restricted by the\npublic body from doing so. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 42017, issued\nJune 1, 2016, at 1- 2 (determining that a Request for Review alleging that a board's public\ncomment rules violated section 2. 06(g) of OMA did not warrant further inquiry because the\nRequest for Review did not allege that anyone who attempted to address the board during an\nopen meeting was improperly denied an opportunity to speak).\nthat \"[\n\nThis office has reviewed the recording of the public comment portion of the\nJanuary 24, 2024, meeting. Fifteen members of the public addressed the Board, four members of\nthe public spoke for longer than three minutes, and the Board permitted the period for public\ncomment to last approximately 37 minutes. Three of the members who spoke for longer than\n\nthree minutes appeared to speak favorably of the Board; 5 one member appeared to oppose the\nposition of the Board.' One of the individuals who spoke favorably of the Board was interrupted\nand reminded of the three minute limitation.'\nThis office also observed that the Board permitted\n\na member of the public to address it even though that individual had not signed in and the public\ncomment period was already over 30 minutes. That individual's viewpoint appeared to oppose\n\nthe position of the Board. 8\nYou do not allege that anyone was prohibited from addressing the Board for at\nleast three minutes during the January 24, 2024, meeting, rather you allege that the Board\n\n45 ILCS 120/ 2.06(g) (West 2022).\n\n50swego Public Library District Board ofTrustees, Meeting (January 24, 2024), at approximately\n34: 30 - 37: 52; 40: 35 - 44: 06; 44: 15 -\n\n49: 09.\n\nOswego Public Library District Board of Trustees, Meeting (January 24, 2024), at approximately\n49: 20 - 52: 46.\n\n70swego Public Library District Board ofTrustees, Meeting (January 24, 2024), at approximately\n49: 00.\n\n80swego Public Library District Board of Trustees, Meeting (January 24, 2024), at approximately\n\nviolated OMA by permitting certain individuals to speak for more than three minutes. This\noffice has confirmed\n\nthat no one's comments\n\nwere restricted to less than three minutes.\n\nThe primary purpose of adopting rules governing public comment pursuant to\nsection 2.06(g) of OMA is to accommodate the speaker's statutory right to address the public\nbody, while ensuring that the public body can maintain order and decorum at public meetings.\"\nIll. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 6. Unlike, for example,\na public body cutting off a comment before it reached the time limit listed in its rules, allowing a\nperson to deliver a comment longer than the time limit generally would not violate section\n2. 06(g) of OMA. Although a public body must abide by its established and recorded rules when\nrestricting public comment, a public body does not violate OMA when it allows comments to be\ngiven or read. See III. Att'y Gen. PAC Req. Rev. Ltr. 64514, issued September 1, 2020, at 2\nconcluding that a public body did not violate OMA when it read a public comment that was\nlonger than permitted by the public body's rules). Based on this office's review of the recording\nof the January 24, 2024, meeting, there is no indication that the Board selectively permitted\ncertain speakers to exceed the three -minute time period in order to deprive other members of the\npublic of an opportunity to participate in public comment or limit their ability to speak against\nthe Board's position. Therefore, the Board did not violate OMA by permitting some speakers to\naddress it for longer than three minutes. Because your Request for Review did not allege facts\nsupporting the allegation that the Board violated section 2. 06(g) of OMA, this office will take no\nfurther action in this matter.'\n\nThis file is closed. If you have any questions, please contact me at\nlaura. harter@ilag. gov.\nVery truly yours,\n\nLAURA\n\nS. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n80267 o no fi war lib\n\ncc:\n\nVia electronic mail\n\nThe Honorable Terry Tamblyn\nPresident, Board of Trustees\n\nOswego Public Library District\n32 West Jefferson Street\nOswego, Illinois 60543\nttamblyn@oswego.\n\nlib. il. us\n\n95 ILCS 120/ 3. 5(a) (West\n\n2022) (\"[\n\na] person who believes that a violation of this Act by a public\n\nbody has occurred may file a request for review with the Public Access Counselor[,]\"\ninclude a summary of the facts supporting the allegation.\").\n\nOffice of the Illinois Attorney General\n\nand that the submission \" must"}
{"id":1456,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-05-08","case_number":null,"request_numbers":["80495"],"title":"Illinois State Medical Board did not violate OMA by denying meeting entry","filename":"80495, issued May 8, 2024.pdf","rel_path":null,"word_count":1472,"summary":"A requester alleged that the Illinois State Medical Board violated the Open Meetings Act by denying him entry to a public meeting, but the PAC closed the file without a binding opinion after reviewing the circumstances.","plain_summary":"A citizen complained that they were blocked from attending an Illinois State Medical Board meeting. The PAC investigated and noted that while the public has a right to attend meetings and record them, security screenings are permissible; the office closed the file without issuing a formal finding of a violation.","holding":null,"legal_question":"Did the Illinois State Medical Board violate section 2.01 of the Open Meetings Act by allegedly denying a member of the public entry to an open meeting?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.01","5 ILCS 120/2.05"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Illinois State Medical Board","requesting_party":null,"pac_outcome":"Closed no further action","pac_law_type":null,"subject_category":"meeting access","subject_description":"The requester alleged they were denied entry to an open meeting of the Illinois State Medical Board.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Convenience-and-openness-of-meeting-times-and-places/80495, issued May 8, 2024.pdf","sha256":"2f619e9ce4671de2ff3d8a9b62ccec8a433f771cc284ccfa7044321770838063","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meeting","right to attend","recording meetings","security screening"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"May 8, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Mark Thompson\nDeputy General Counsel\nDivision of Professional Regulation\nIllinois Department of Financial and Professional Regulation\nMark. thompson@illinois. gov\nRE: OMA Request for Review – 2024 PAC 80495\nDear\n\nand Mr. Thompson:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)).\nOn March 6, 2024,\nsubmitted a Request for Review alleging\nthat that the Illinois State Medical Board ( Board) violated section 2.01 of OMA (5 ILCS\n120/ 2.01 (West 2022)) by prohibiting him from attending the Board' s meeting earlier that day,\nwith the exception of the public comment portion. Specifically,\nstated:\nI arrived at the security check point at 555 W. Monroe at\n8:50ish AM on 2/6/2024 for the Illinois State Medical Board\nmeeting that is open to the public. I was denied entry to the entire\nemphasis) open meeting except for the public participation. I\nwanted to attend the whole meeting as is my RIGHT. My\ncontention is alleging a violation of section 2.01 of the OMA,\nwhich states that \"[ a] ll meetings required by this Act to be public\nshall be held at specified times and places which are convenient\n\n\fMr. Mark Thompson\nMay 8, 2024\nPage 2\nand open to the public.\" ( Emphasis added.) [ See 5 ILCS 120/ 2.01\nWest 2022)]. This is the same exact violating behavior from a\nprevious request for review of an OMA violation that warranted an\ninvestigation from the PAC's Office 2023 PAC 78367.[ 1]\nOn March 22, 2024, this office sent a copy of the Request for Review to the Board and asked it\nto provide copies of the minutes ( draft form if necessary) of the Board' s March 6, 2024, meeting,\na recording of the meeting if such a recording exists, and any correspondence or other documents\nrelated to\nability to attend the meeting. This office also requested a written response\nclarifying whether the Board or any other individual or entity restricted\naccess to the\nmeeting. On March 29, 2024, the Board submitted a response. On April 5, 2024, this office\nforwarded the Board' s response to\nhe replied on April 16, 2024.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989). Section 2.01 of OMA provides that \"[ a] ll meetings required by this Act to be\npublic shall be held at specified times and places which are convenient and open to the public.\"\nThe Board' s response to this office explained that its March 6, 2024, meeting was\nconducted in its Chicago and Springfield offices with the two locations linked by video\nconference, and that members of the public had the option of physically attending the meeting at\neither location or calling into the meeting by phone or video link. The Chicago meeting location\nwhere\nattended is a 10th floor conference room in a building managed by the\nDepartment of Central Management Services with security provided by the Illinois State Police\nISP). The Board stated that on March 4, 2024, the Department of Financial and Professional\nRegulation' s ( Department) liaison to the Board received an e-mail from\nstating that he\nwould attend the meeting, 2 but\nwas not present when the meeting convened at 9:01\na.m. The Board stated that ISP notified the Department during the meeting that\nwas in\nthe lobby and wished to attend, and that the Board remained in session to await\narrival\neven though it had concluded its business. The Board stated that a Department supervisor went\nto the lobby and observed a verbal altercation between\nand ISP security. The Board\nfurther explained:\n\n1E- mail from\nLeah] Bartelt ( March 6, 2024).\n2In his reply,\n\nBS Biology EIU, Dean's List Recipient, Private Company Owner, to\n\nstated he sent the e-mail on March 3, 2024.\n\n\fMr. Mark Thompson\nMay 8, 2024\nPage 3\nISP asked if\nwas allowed to bring his recording devices\ninto the meeting. The supervisor confirmed that he could. Once\nmatters were resolved, the supervisor with an ISP officer escorted\nto the tenth floor meeting room.\nOnce\narrived in the meeting room, he set up his\ntripod and organized his papers. Once he was ready to proceed,\nthe board chair read a statement of the rules for public comment\nand then turned the floor over to\nAt the conclusion of\nremarks, the Board, having no further business,\nadjourned the meeting.[ 3]\nIn his reply,\nasserted that the Board violated OMA because its liaison failed to notify\nISP and the Board that he planned to attend the meeting so proper arrangements could be made\nto ensure \" the meeting was convenient and open to the public so that no verbal altercations\nresulted from a member of the public trying to attend a public meeting that was not conven[ ien] t\nnor open[.]\" 4 He also suggested the Board commenced the meeting in an unusually timely\nmanner to prevent him from attending the business portion of the meeting.\nThis office has reviewed a recording of the meeting, which is consistent with the\nBoard' s explanation that it was notified during the meeting that\nwished to attend and\nprovide public comment. The Board waited for him to arrive even though it had finished\ndiscussing public business, and permitted him to address the Board without interruption in\naccordance with its established and recorded rules. An Assistant Attorney General in the Public\nAccess Bureau also confirmed, in a telephone conversation with the Deputy General Counsel of\nthe Department' s Division of Professional Regulation, that the Board did not instruct ISP to\nrestrict\nor otherwise take action to interfere with his ability to attend the meeting.\nThe source of the disagreement between ISP that delayed\nfrom attending\nthe meeting is unclear, but any actions by ISP are not attributable to the Board under the\ncircumstances. Although a public body could potentially violate OMA by directing or\nacquiescing to its personnel imposing unreasonable security measures to make meetings\ninaccessible to the public, that is not what happened in this instance. The Board does not oversee\nor control security of the building;\nverbal altercation with ISP was not foreseeable to\nthe Board simply because he notified the Board liaison that he would attend the March 6, 2024,\nmeeting. The information provided to this office indicates that upon being made aware of\n3Letter from Mark Thompson, Deputy General Counsel, Division of Professional Regulation,\nIllinois Department of Financial and Professional Regulation, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General ( March 29, 2024), at 2.\n4Letter from\nthe Attorney General ( April 16, 2024).\n\nto Steven Silverman, Bureau Chief, Public Access Bureau, Office of\n\n\fMr. Mark Thompson\nMay 8, 2024\nPage 4\npresence in the lobby, an employee of the Department helped facilitate his access to the\nmeeting by confirming that he was permitted to record the Board meeting and escorting him to\nthe meeting room. 5 Further, the allegation that the Board commenced the meeting shortly after\nthe starting time listed on the agenda to thwart\nfrom attending is unsupported by facts\nand, in any event, would not constitute an OMA violation. The Act does not require public\nbodies to delay meetings until members of the public arrive. Accordingly, this office concludes\nthat the Board did not violate OMA in connection with its March 6, 2024, meeting.\nTo the extent that\nrecording equipment was the source of his verbal\naltercation with ISP, this office recommends that the Board take measures to ensure ISP security\npersonnel are made aware that section 2.05 of OMA (5 ILCS 120/ 2.05 (West 2022)) provides:\nSubject to the provisions of Section 8-701 of the Code of Civil Procedure, any person may\nrecord the proceedings at meetings required to be open by this Act by tape, film or other means.\nThe authority holding the meeting shall prescribe reasonable rules to govern the right to make\nsuch recordings.\" This office also notes that the public' s right to attend meetings does not\npreclude routine security screening measures to ensure the safety of a meeting or the building in\nwhich it is held.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n80495 o 201 proper sa\n\n5The requirement of OMA apply to public bodies that hold meetings subject to the Act. 5 ILCS\n120/1 (West 2022). ISP security is not a \" public body\" under OMA.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Denial of entry to an open meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80495/","full_text":"May 8, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Mark Thompson\nDeputy General Counsel\nDivision of Professional Regulation\nIllinois Department of Financial and Professional Regulation\nMark. thompson@illinois. gov\nRE: OMA Request for Review – 2024 PAC 80495\nDear\n\nand Mr. Thompson:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)).\nOn March 6, 2024,\nsubmitted a Request for Review alleging\nthat that the Illinois State Medical Board (Board) violated section 2.01 of OMA (5 ILCS\n120/ 2.01 (West 2022)) by prohibiting him from attending the Board's meeting earlier that day,\nwith the exception of the public comment portion. Specifically,\nstated:\nI arrived at the security check point at 555 W. Monroe at\n8:50ish AM on 2/6/2024 for the Illinois State Medical Board\nmeeting that is open to the public. I was denied entry to the entire\n\nand open to the public.\" (Emphasis added.) [ See 5 ILCS 120/ 2.01\nWest 2022)]. This is the same exact violating behavior from a\nprevious request for review of an OMA violation that warranted an\ninvestigation from the PAC's Office 2023 PAC 78367.[ 1]\nOn March 22, 2024, this office sent a copy of the Request for Review to the Board and asked it\nto provide copies of the minutes (draft form if necessary) of the Board's March 6, 2024, meeting,\na recording of the meeting if such a recording exists, and any correspondence or other documents\nrelated to\nability to attend the meeting. This office also requested a written response\nclarifying whether the Board or any other individual or entity restricted\naccess to the\nmeeting. On March 29, 2024, the Board submitted a response. On April 5, 2024, this office\nforwarded the Board's response to\nhe replied on April 16, 2024.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 2.01 of OMA provides that \"[ a] ll meetings required by this Act to be\npublic shall be held at specified times and places which are convenient and open to the public.\"\nThe Board's response to this office explained that its March 6, 2024, meeting was\nconducted in its Chicago and Springfield offices with the two locations linked by video\nconference, and that members of the public had the option of physically attending the meeting at\neither location or calling into the meeting by phone or video link. The Chicago meeting location\nwhere\nattended is a 10th floor conference room in a building managed by the\nDepartment of Central Management Services with security provided by the Illinois State Police\nISP). The Board stated that on March 4, 2024, the Department of Financial and Professional\nRegulation's (Department) liaison to the Board received an e-mail from\nstating that he\nwould attend the meeting, 2 but\nwas not present when the meeting convened at 9:01\na.m. The Board stated that ISP notified the Department during the meeting that\nwas in\nthe lobby and wished to attend, and that the Board remained in session to await\narrival\neven though it had concluded its business. The Board stated that a Department supervisor went\nto the lobby and observed a verbal altercation between\nand ISP security. The Board\nfurther explained:\n\nISP asked if\nwas allowed to bring his recording devices\ninto the meeting. The supervisor confirmed that he could. Once\nmatters were resolved, the supervisor with an ISP officer escorted\nto the tenth floor meeting room.\nOnce\narrived in the meeting room, he set up his\ntripod and organized his papers. Once he was ready to proceed,\nthe board chair read a statement of the rules for public comment\nand then turned the floor over to\nAt the conclusion of\nremarks, the Board, having no further business,\nadjourned the meeting.[ 3]\nIn his reply,\nasserted that the Board violated OMA because its liaison failed to notify\nISP and the Board that he planned to attend the meeting so proper arrangements could be made\nto ensure \" the meeting was convenient and open to the public so that no verbal altercations\nresulted from a member of the public trying to attend a public meeting that was not conven[ ien] t\nnor open[.]\" 4 He also suggested the Board commenced the meeting in an unusually timely\nmanner to prevent him from attending the business portion of the meeting.\nThis office has reviewed a recording of the meeting, which is consistent with the\nBoard's explanation that it was notified during the meeting that\nwished to attend and\nprovide public comment. The Board waited for him to arrive even though it had finished\ndiscussing public business, and permitted him to address the Board without interruption in\naccordance with its established and recorded rules. An Assistant Attorney General in the Public\nAccess Bureau also confirmed, in a telephone conversation with the Deputy General Counsel of\nthe Department's Division of Professional Regulation, that the Board did not instruct ISP to\nrestrict\nor otherwise take action to interfere with his ability to attend the meeting.\nThe source of the disagreement between ISP that delayed\nfrom attending\nthe meeting is unclear, but any actions by ISP are not attributable to the Board under the\ncircumstances. Although a public body could potentially violate OMA by directing or\nacquiescing to its personnel imposing unreasonable security measures to make meetings\ninaccessible to the public, that is not what happened in this instance. The Board does not oversee\nor control security of the building;\nverbal altercation with ISP was not foreseeable to\nthe Board simply because he notified the Board liaison that he would attend the March 6, 2024,\nmeeting. The information provided to this office indicates that upon being made aware of\n3 Letter from Mark Thompson, Deputy General Counsel, Division of Professional Regulation,\nIllinois Department of Financial and Professional Regulation, to Steve Silverman, Bureau Chief, Public Access\n\npresence in the lobby, an employee of the Department helped facilitate his access to the\nmeeting by confirming that he was permitted to record the Board meeting and escorting him to\nthe meeting room. 5 Further, the allegation that the Board commenced the meeting shortly after\nthe starting time listed on the agenda to thwart\nfrom attending is unsupported by facts\nand, in any event, would not constitute an OMA violation. The Act does not require public\nbodies to delay meetings until members of the public arrive. Accordingly, this office concludes\nthat the Board did not violate OMA in connection with its March 6, 2024, meeting.\nTo the extent that\nrecording equipment was the source of his verbal\naltercation with ISP, this office recommends that the Board take measures to ensure ISP security\npersonnel are made aware that section 2.05 of OMA (5 ILCS 120/ 2.05 (West 2022)) provides:\nSubject to the provisions of Section 8-701 of the Code of Civil Procedure, any person may\nrecord the proceedings at meetings required to be open by this Act by tape, film or other means.\nThe authority holding the meeting shall prescribe reasonable rules to govern the right to make\nsuch recordings.\" This office also notes that the public's right to attend meetings does not\npreclude routine security screening measures to ensure the safety of a meeting or the building in\nwhich it is held.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed.\nVery truly yours,\n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n80495 o 201 proper sa\n\n5 The requirement of OMA apply to public bodies that hold meetings subject to the Act. 5 ILCS\n120/1 (West 2022). ISP security is not a \" public body\" under OMA."}
{"id":1457,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-06-21","case_number":null,"request_numbers":["80554"],"title":"City of Leland Grove City Council violated OMA with private meeting that included mayor","filename":"80554, issued June 21, 2024.pdf","rel_path":null,"word_count":1665,"summary":"The PAC determined that the City of Leland Grove City Council violated the Open Meetings Act by holding a private gathering of a majority of a quorum to discuss public business on February 8, 2024. The City agreed to compile and release minutes of the meeting to resolve the matter.","plain_summary":"This determination addresses whether a private gathering of the mayor, two City Council members, and two residents on February 8, 2024, to discuss a specific property constituted a 'meeting' under the Open Meetings Act's quorum requirements. The Public Access Bureau held that the City of Leland Grove City Council violated OMA because the gathering involved a majority of a quorum discussing public business without following OMA's notice and openness requirements. The Bureau reasoned that quorum for a non-home-rule municipality is defined by the Illinois Municipal Code, which includes the mayor within 'corporate authorities,' so the mayor counts toward a quorum regardless of local ordinance, Robert's Rules interpretation, or past practice claiming otherwise. As a remedy, the Bureau requested that the Council compile and make public minutes of the February 8, 2024 gathering, and it declined to issue a binding opinion, closing the matter with this non-binding determination letter.","holding":"Under the Illinois Municipal Code's definition of 'corporate authorities,' a city's mayor counts toward a quorum, so a gathering of the mayor and two council members discussing public business constitutes a majority of a quorum and is a 'meeting' subject to all requirements of the Open Meetings Act.","legal_question":"Whether a gathering of the mayor and two council members to discuss public business constituted a 'meeting' under the Open Meetings Act requiring public notice and record-keeping.","disposition":"violation_found","primary_statute":["5 ILCS 120/1","5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Leland Grove City Council","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The City Council held an unannounced private gathering to discuss the Oxford House property.","ocr_status":"llm_reocr","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/80554, issued June 21, 2024.pdf","sha256":"871d8e6f161e623651f1a4a47a6731c423729c7ddfc2d3b5fbc0b3735e61efb6","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["open meetings act","public business","meeting minutes","quorum"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"June 21, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Roland R. Cross\nAttorney\nBrown, Hay & Stephens, LLP\n205 South Fifth Street, Suite 1000\nSpringfield, Illinois 62795\nRcross@bhslaw. com\nRE: OMA Request for Review – 2024 PAC 80554\nDear\n\nand Mr. Cross:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the City of Leland Grove ( City) City Council ( Council) violated OMA by holding\na meeting on February 8, 2024, without adhering to the requirements of the Act.\nOn March 12, 2024,\nsubmitted the above- referenced Request\nfor Review alleging that on February 8, 2024, the City's mayor, two Council members, and two\nresidents of the City gathered in private to discuss the Oxford House, which is a property located\nin the City. On March 18, 2024, this office forwarded a copy of the Request for Review to the\nCouncil and asked it to provide a written response to the allegation that it violated OMA by\nholding a private meeting to discuss public business on February 8, 2024. Specifically, this\noffice asked the Council to confirm the City's form of government and explain whether a\nmajority of a quorum of the members of the Council gathered to discuss public business on\nFebruary 8, 2024. This office also asked the Council to provide copies of any notes, minutes, or\nrecordings of that gathering for this office's confidential review. On March 29, 2024, the\n\n\fMr. Roland R. Cross\nJune 21, 2024\nPage 2\nCouncil provided an answer with exhibits. On the same date, this office forwarded a copy of the\nCouncil' s response to\nOn April 9, 2024,\nsubmitted a written reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989).\nSection 2(a) of OMA (5 ILCS 120/ 2(a) ( West 2022), as amended by Public Act\n103- 311, effective July 28, 2023) provides that \"[ a] ll meetings of public bodies shall be open to\nthe public unless excepted in subsection ( c) and closed in accordance with Section 2a.\" Section\n1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)) defines \" meeting\" as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means ( such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held\nfor the purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. ( Emphasis added.)\nThe Council consists of six members and the mayor. A quorum of both a sixmember and seven- member public body is four, and a majority of a quorum is three. Therefore,\nif the mayor does not count toward a quorum, a gathering of two trustees and the mayor does not\nconsist of a majority of a quorum and thus is not subject to OMA. If the mayor does count\ntowards a quorum, a gathering in which two trustees and the mayor discuss public business is a\nmeeting subject to all of the requirements of OMA because it involves a majority of a quorum of\nthe Council.\nIt is undisputed that the Council did not follow the requirements of OMA in\nconnection with the gathering that occurred on February 8, 2024. It is also undisputed that the\nmatter discussed on February 8, 2024, pertained to public business. However, the Council\nargues that a \" meeting\" did not occur because the mayor \" traditionally\" has not been considered\npart of a quorum and thus a majority of a quorum did not gather on February 8, 2024. 1 The\nCouncil relies upon an ordinance it passed in 1950 which stated that Robert' s Rules of Order\n1Letter from Roland R. Cross, Brown Hay + Stephens, to Matt Goodman, Assistant Attorney\nGeneral, Public Access Bureau ( March 29, 2024), at 2.\n\n\fMr. Roland R. Cross\nJune 21, 2024\nPage 3\nRobert' s Rules) shall govern the deliberations of the Council. 2 The Council claimed that\nRobert' s Rules provide that the mayor is not considered a \" member\" of the Council and thus\nshould not be counted toward a quorum:\nAccording to Robert' s Rules, \"[ a] member of an\nassembly… is a person entitled to full participation in its\nproceedings…. [ Robert' s Rules], 11th ed, p.3. Thus, a \" quorum\nrefers to the number of members present….\" Id. at 345. Therefore,\nbecause the Mayor is not \" entitled to full participation in the\nproceedings\" and has no right to vote except under limited\ncircumstances, she cannot deemed to be a \" member\" of the body\nand/ or part of any quorum. ( Emphasis in original.)[ 3]\nThis argument overlooks that State law defines what constitutes a quorum for the\nCity. As a non-home- rule unit of local government, the City \" may exercise only those powers\ngranted to it by law and the Illinois Constitution.\" Quad Cities Open, Inc. v. City of Silvis, 208\nIll. 2d 498, 505-06 ( 2004). For cities, \" quorum\" is established and defined under section 3.1-4020 of the Illinois Municipal Code ( Municipal Code) ( 65 ILCS 5/3.1-40-20 ( West 2022)). That\nprovision states:\nA majority of the corporate authorities shall constitute a\nquorum to do business. A smaller number, however, may adjourn\nfrom time- to-time and may compel the attendance of absentees\nunder penalties including a fine for failure to attend, prescribed by\nthe Council by ordinance. ( Emphasis added.)\nThe definition of \"corporate authorities\" is found in section 1-1-2(2) of the Municipal Code ( 65\nILCS 5/1-1-2(2) (West 2022)). Section 1-1-2(2) states: \"' Corporate authorities' means ( a) the\nMayor and Aldermen or similar body when the reference is to cities.\" ( Emphasis added.)\nPlainly, neither section 3.1-40-20 nor section 1-1-2(2) of the Municipal Code empowers a nonhome- rule unit to exclude its mayor from counting toward a quorum. Because the Council is\ntypically composed of six alderpersons and the mayor, 4 four constitutes a quorum and three\nconstitutes a majority of quorum. Those three individuals may be composed of two alderpersons\n\n2City of Leland Grove Ordinance No. 3 § 4 (approved June 30, 1950).\n3Letter from Roland R. Cross, Brown Hay + Stephens, to Matt Goodman, Assistant Attorney\nGeneral, Public Access Bureau ( March 29, 2024), at 2.\n4It appears that the City may have a vacant alderperson seat, but that does not alter the math that\nthree constitutes a majority of a quorum of six.\n\n\fMr. Roland R. Cross\nJune 21, 2024\nPage 4\nand the mayor. To the extent the ordinance on which the Council relies purports to place the\nmayor outside of the quorum calculation, it is ineffectual on this issue. 5\nAlthough the Council cites McLean v. East St. Louis, 222 Ill. 510, 517 ( 1906) for\nits language that a mayor \" cannot be counted as a member to make a quorum[,]\" McLean\npredates the passage of the Municipal Code, and the relevant statutory language at the time was\nmaterially different in providing: \" A majority of the aldermen elect shall constitute a quorum to\ndo business, but a smaller number may adjourn from time to time, and may compel the\nattendance of absentees under such penalties as may be prescribed by ordinance.\" ( Emphasis\nadded.) Starr & Cur. Stat. chap. 24, par. 37. The statutory change from \"[ a] majority of the\naldermen elect shall constitute a quorum to do business\" to \"[ a] majority of the corporate\nauthorities shall constitute a quorum to do business[,]\" coupled with the definition of \"corporate\nauthorities\" as including \" the Mayor and Aldermen,\" evinces clear legislative intent to change\nthe law as it existed at the time of McLean to include a city's mayor within a quorum.\nThe Council also asserts that the mayor \" traditionally\" has not been considered\npart of a quorum when conducting business. In support of its assertion, the Council attached the\naffidavits of Saul Morse, prior General Counsel for the City, and Diana Hetherington, prior City\nClerk. Both affidavits represented that the mayor has never been considered when determining\nwhether a quorum exists for a meeting of the City Council or otherwise. Although this may have\nbeen the practice of the Council, it is irrelevant to whether gatherings of its members constitute\nmeetings subject to OMA. As explained above, the Municipal Code instead governs this matter.\nBecause a majority of a quorum of the members of the Council discussed public\nbusiness during the February 8, 2024, gathering without providing advance notice and without\nfollowing the other requirements of OMA, this office concludes that the Council violated OMA\non that date. To remedy this violation, this office requests that the Council compile and make\npublicly available minutes of the February 8, 2024, meeting, as the City's attorney agreed to do\nin the event this office determined that the Council violated OMA. This office also cautions the\nCouncil to consider in advance whether any gatherings could involve the mayor and two or more\nalderpersons engaging in deliberative discussions of public business, which would be \" meetings\"\nrequiring advance notice and adherence to the other requirements of OMA.\n\n5Robert' s Rules of Order authorize the chair to vote when their vote is needed to break a tie. This\noffice makes no determination as to whether the chair' s ability to cast decisive votes, but not votes in certain other\ncircumstances, renders the chair a non- member for quorum purposes under Robert' s Rules of Order.\n\n\fMr. Roland R. Cross\nJune 21, 2024\nPage 5\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at matthew. goodman@ilag. gov.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n80554 o 2a meeting improper mun\n\n\f","full_text_pre_reocr":"June 21, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Roland R. Cross\nAttorney\nBrown, Hay & Stephens, LLP\n205 South Fifth Street, Suite 1000\nSpringfield, Illinois 62795\nRcross@bhslaw. com\nRE: OMA Request for Review – 2024 PAC 80554\nDear\n\nand Mr. Cross:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the City of Leland Grove (City) City Council (Council) violated OMA by holding\na meeting on February 8, 2024, without adhering to the requirements of the Act.\nOn March 12, 2024,\nsubmitted the above- referenced Request\nfor Review alleging that on February 8, 2024, the City's mayor, two Council members, and two\nresidents of the City gathered in private to discuss the Oxford House, which is a property located\nin the City. On March 18, 2024, this office forwarded a copy of the Request for Review to the\nCouncil and asked it to provide a written response to the allegation that it violated OMA by\nholding a private meeting to discuss public business on February 8, 2024. Specifically, this\noffice asked the Council to confirm the City's form of government and explain whether a\nmajority of a quorum of the members of the Council gathered to discuss public business on\nFebruary 8, 2024. This office also asked the Council to provide copies of any notes, minutes, or\n\nCouncil provided an answer with exhibits. On the same date, this office forwarded a copy of the\nCouncil's response to\nOn April 9, 2024,\nsubmitted a written reply.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\nSection 2(a) of OMA (5 ILCS 120/ 2(a) (West 2022), as amended by Public Act\n103- 311, effective July 28, 2023) provides that \"[ a] ll meetings of public bodies shall be open to\nthe public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Section\n1.02 of OMA (5 ILCS 120/ 1.02 (West 2022)) defines \" meeting\" as:\nA]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held\nfor the purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. (Emphasis added.)\nThe Council consists of six members and the mayor. A quorum of both a sixmember and seven- member public body is four, and a majority of a quorum is three. Therefore,\nif the mayor does not count toward a quorum, a gathering of two trustees and the mayor does not\nconsist of a majority of a quorum and thus is not subject to OMA. If the mayor does count\ntowards a quorum, a gathering in which two trustees and the mayor discuss public business is a\nmeeting subject to all of the requirements of OMA because it involves a majority of a quorum of\nthe Council.\nIt is undisputed that the Council did not follow the requirements of OMA in\nconnection with the gathering that occurred on February 8, 2024. It is also undisputed that the\nmatter discussed on February 8, 2024, pertained to public business. However, the Council\nargues that a \" meeting\" did not occur because the mayor \" traditionally\" has not been considered\npart of a quorum and thus a majority of a quorum did not gather on February 8, 2024. 1 The\nCouncil relies upon an ordinance it passed in 1950 which stated that Robert's Rules of Order\n\nRobert's Rules) shall govern the deliberations of the Council. 2 The Council claimed that\nRobert's Rules provide that the mayor is not considered a \" member\" of the Council and thus\nshould not be counted toward a quorum:\nAccording to Robert's Rules, \"[ a] member of an\nassembly… is a person entitled to full participation in its\nproceedings…. [ Robert's Rules], 11th ed, p.3. Thus, a \" quorum\nrefers to the number of members present….\" Id. at 345. Therefore,\nbecause the Mayor is not \" entitled to full participation in the\nproceedings\" and has no right to vote except under limited\ncircumstances, she cannot deemed to be a \" member\" of the body\nand/ or part of any quorum. (Emphasis in original.)[ 3]\nThis argument overlooks that State law defines what constitutes a quorum for the\nCity. As a non-home- rule unit of local government, the City \" may exercise only those powers\ngranted to it by law and the Illinois Constitution.\" Quad Cities Open, Inc. v. City of Silvis, 208\nIll. 2d 498, 505-06 (2004). For cities, \" quorum\" is established and defined under section 3.1-4020 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/3.1-40-20 (West 2022)). That\nprovision states:\nA majority of the corporate authorities shall constitute a\nquorum to do business. A smaller number, however, may adjourn\nfrom time- to-time and may compel the attendance of absentees\nunder penalties including a fine for failure to attend, prescribed by\nthe Council by ordinance. (Emphasis added.)\nThe definition of \"corporate authorities\" is found in section 1-1-2(2) of the Municipal Code (65\nILCS 5/1-1-2(2) (West 2022)). Section 1-1-2(2) states: \"' Corporate authorities' means (a) the\nMayor and Aldermen or similar body when the reference is to cities.\" (Emphasis added.)\nPlainly, neither section 3.1-40-20 nor section 1-1-2(2) of the Municipal Code empowers a nonhome- rule unit to exclude its mayor from counting toward a quorum. Because the Council is\ntypically composed of six alderpersons and the mayor, 4 four constitutes a quorum and three\nconstitutes a majority of quorum. Those three individuals may be composed of two alderpersons\n\n2 City of Leland Grove Ordinance No. 3 § 4 (approved June 30, 1950).\n3 Letter from Roland R. Cross, Brown Hay + Stephens, to Matt Goodman, Assistant Attorney\nGeneral, Public Access Bureau (March 29, 2024), at 2.\n4 It appears that the City may have a vacant alderperson seat, but that does not alter the math that\n\nand the mayor. To the extent the ordinance on which the Council relies purports to place the\nmayor outside of the quorum calculation, it is ineffectual on this issue. 5\nAlthough the Council cites McLean v. East St. Louis, 222 Ill. 510, 517 (1906) for\nits language that a mayor \" cannot be counted as a member to make a quorum[,]\" McLean\npredates the passage of the Municipal Code, and the relevant statutory language at the time was\nmaterially different in providing: \" A majority of the aldermen elect shall constitute a quorum to\ndo business, but a smaller number may adjourn from time to time, and may compel the\nattendance of absentees under such penalties as may be prescribed by ordinance.\" (Emphasis\nadded.) Starr & Cur. Stat. chap. 24, par. 37. The statutory change from \"[ a] majority of the\naldermen elect shall constitute a quorum to do business\" to \"[ a] majority of the corporate\nauthorities shall constitute a quorum to do business[,]\" coupled with the definition of \"corporate\nauthorities\" as including \" the Mayor and Aldermen,\" evinces clear legislative intent to change\nthe law as it existed at the time of McLean to include a city's mayor within a quorum.\nThe Council also asserts that the mayor \" traditionally\" has not been considered\npart of a quorum when conducting business. In support of its assertion, the Council attached the\naffidavits of Saul Morse, prior General Counsel for the City, and Diana Hetherington, prior City\nClerk. Both affidavits represented that the mayor has never been considered when determining\nwhether a quorum exists for a meeting of the City Council or otherwise. Although this may have\nbeen the practice of the Council, it is irrelevant to whether gatherings of its members constitute\nmeetings subject to OMA. As explained above, the Municipal Code instead governs this matter.\nBecause a majority of a quorum of the members of the Council discussed public\nbusiness during the February 8, 2024, gathering without providing advance notice and without\nfollowing the other requirements of OMA, this office concludes that the Council violated OMA\non that date. To remedy this violation, this office requests that the Council compile and make\npublicly available minutes of the February 8, 2024, meeting, as the City's attorney agreed to do\nin the event this office determined that the Council violated OMA. This office also cautions the\nCouncil to consider in advance whether any gatherings could involve the mayor and two or more\nalderpersons engaging in deliberative discussions of public business, which would be \" meetings\"\nrequiring advance notice and adherence to the other requirements of OMA.\n\n5 Robert's Rules of Order authorize the chair to vote when their vote is needed to break a tie. This\noffice makes no determination as to whether the chair's ability to cast decisive votes, but not votes in certain other\ncircumstances, renders the chair a non- member for quorum purposes under Robert's Rules of Order.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at matthew. goodman@ilag. gov.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n80554 o 2a meeting improper mun","plain_summary_pre_resummarize":null,"card_headline":"A city council's unannounced private gathering","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80554/","full_text":"June 21, 2024\n\nVia electronic mail\n[REDACTED]\n\nVia electronic mail\nMr. Roland R. Cross\nAttorney\nBrown, Hay & Stephens, LLP\n205 South Fifth Street, Suite 1000\nSpringfield, Illinois 62795\nRcross@bhslaw.com\n\nRE: OMA Request for Review – 2024 PAC 80554\n\nDear [REDACTED] and Mr. Cross:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\nconcludes that the City of Leland Grove (City) City Council (Council) violated OMA by holding\na meeting on February 8, 2024, without adhering to the requirements of the Act.\n\nOn March 12, 2024, [REDACTED] submitted the above-referenced Request\nfor Review alleging that on February 8, 2024, the City’s mayor, two Council members, and two\nresidents of the City gathered in private to discuss the Oxford House, which is a property located\nin the City. On March 18, 2024, this office forwarded a copy of the Request for Review to the\nCouncil and asked it to provide a written response to the allegation that it violated OMA by\nholding a private meeting to discuss public business on February 8, 2024. Specifically, this\noffice asked the Council to confirm the City’s form of government and explain whether a\nmajority of a quorum of the members of the Council gathered to discuss public business on\nFebruary 8, 2024. This office also asked the Council to provide copies of any notes, minutes, or\nrecordings of that gathering for this office’s confidential review. On March 29, 2024, the\n\nMr. Roland R. Cross\nJune 21, 2024\nPage 2\n\nCouncil provided an answer with exhibits. On the same date, this office forwarded a copy of the\nCouncil's response to [REDACTED]. On April 9, 2024, [REDACTED] submitted a written reply.\n\nDETERMINATION\n\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\n\nSection 2(a) of OMA (5 ILCS 120/2(a) (West 2022), as amended by Public Act\n103-311, effective July 28, 2023) provides that \"[a]ll meetings of public bodies shall be open to\nthe public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Section\n1.02 of OMA (5 ILCS 120/1.02 (West 2022)) defines \"meeting\" as:\n\n[A]ny gathering, whether in person or by video or audio\nconference, telephone call, electronic means (such as, without\nlimitation, electronic mail, electronic chat, and instant messaging),\nor other means of contemporaneous interactive communication, of\na majority of a quorum of the members of a public body held\nfor the purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. (Emphasis added.)\n\nThe Council consists of six members and the mayor. A quorum of both a six-\nmember and seven-member public body is four, and a majority of a quorum is three. Therefore,\nif the mayor does not count toward a quorum, a gathering of two trustees and the mayor does not\nconsist of a majority of a quorum and thus is not subject to OMA. If the mayor does count\ntowards a quorum, a gathering in which two trustees and the mayor discuss public business is a\nmeeting subject to all of the requirements of OMA because it involves a majority of a quorum of\nthe Council.\n\nIt is undisputed that the Council did not follow the requirements of OMA in\nconnection with the gathering that occurred on February 8, 2024. It is also undisputed that the\nmatter discussed on February 8, 2024, pertained to public business. However, the Council\nargues that a \"meeting\" did not occur because the mayor \"traditionally\" has not been considered\npart of a quorum and thus a majority of a quorum did not gather on February 8, 2024. The\nCouncil relies upon an ordinance it passed in 1950 which stated that Robert's Rules of Order\n\n1Letter from Roland R. Cross, Brown Hay + Stephens, to Matt Goodman, Assistant Attorney\nGeneral, Public Access Bureau (March 29, 2024), at 2.\n\nMr. Roland R. Cross\nJune 21, 2024\nPage 3\n(Robert's Rules) shall govern the deliberations of the Council.2 The Council claimed that\nRobert's Rules provide that the mayor is not considered a \"member\" of the Council and thus\nshould not be counted toward a quorum:\n\nAccording to Robert's Rules, \"[a] member of an\nassembly...is a person entitled to full participation in its\nproceedings.... [Robert's Rules], 11th ed, p.3. Thus, a \"quorum\nrefers to the number of members present....\" Id. at 345. Therefore,\nbecause the Mayor is not \"entitled to full participation in the\nproceedings\" and has no right to vote except under limited\ncircumstances, she cannot deemed to be a \"member\" of the body\nand/or part of any quorum. (Emphasis in original.)[3]\n\nThis argument overlooks that State law defines what constitutes a quorum for the\nCity. As a non-home-rule unit of local government, the City \"may exercise only those powers\ngranted to it by law and the Illinois Constitution.\" Quad Cities Open, Inc. v. City of Silvis, 208\nIll. 2d 498, 505-06 (2004). For cities, \"quorum\" is established and defined under section 3.1-40-\n20 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/3.1-40-20 (West 2022)). That\nprovision states:\n\nA majority of the corporate authorities shall constitute a\nquorum to do business. A smaller number, however, may adjourn\nfrom time-to-time and may compel the attendance of absentees\nunder penalties including a fine for failure to attend, prescribed by\nthe Council by ordinance. (Emphasis added.)\n\nThe definition of \"corporate authorities\" is found in section 1-1-2(2) of the Municipal Code (65\nILCS 5/1-1-2(2) (West 2022)). Section 1-1-2(2) states: \"\"Corporate authorities' means (a) the\nMayor and Aldermen or similar body when the reference is to cities.\" (Emphasis added.)\nPlainly, neither section 3.1-40-20 nor section 1-1-2(2) of the Municipal Code empowers a non-\nhome-rule unit to exclude its mayor from counting toward a quorum. Because the Council is\ntypically composed of six alderpersons and the mayor, 4 four constitutes a quorum and three\nconstitutes a majority of quorum. Those three individuals may be composed of two alderpersons\n\n2City of Leland Grove Ordinance No. 3 § 4 (approved June 30, 1950).\n\n3Letter from Roland R. Cross, Brown Hay + Stephens, to Matt Goodman, Assistant Attorney\nGeneral, Public Access Bureau (March 29, 2024), at 2.\n\n4It appears that the City may have a vacant alderperson seat, but that does not alter the math that\nthree constitutes a majority of a quorum of six.\n\nMr. Roland R. Cross\nJune 21, 2024\nPage 4\nand the mayor. To the extent the ordinance on which the Council relies purports to place the\nmayor outside of the quorum calculation, it is ineffectual on this issue.5\nAlthough the Council cites McLean v. East St. Louis, 222 Ill. 510, 517 (1906) for\nits language that a mayor \"cannot be counted as a member to make a quorum[,]\" McLean\npredates the passage of the Municipal Code, and the relevant statutory language at the time was\nmaterially different in providing: \"A majority of the aldermen elect shall constitute a quorum to\ndo business, but a smaller number may adjourn from time to time, and may compel the\nattendance of absentees under such penalties as may be prescribed by ordinance.\" (Emphasis\nadded.) Starr & Cur. Stat. chap. 24, par. 37. The statutory change from \"[a] majority of the\naldermen elect shall constitute a quorum to do business\" to \"[a] majority of the corporate\nauthorities shall constitute a quorum to do business[,]\" coupled with the definition of \"corporate\nauthorities\" as including \"the Mayor and Aldermen,\" evinces clear legislative intent to change\nthe law as it existed at the time of McLean to include a city's mayor within a quorum.\nThe Council also asserts that the mayor \"traditionally\" has not been considered\npart of a quorum when conducting business. In support of its assertion, the Council attached the\naffidavits of Saul Morse, prior General Counsel for the City, and Diana Hetherington, prior City\nClerk. Both affidavits represented that the mayor has never been considered when determining\nwhether a quorum exists for a meeting of the City Council or otherwise. Although this may have\nbeen the practice of the Council, it is irrelevant to whether gatherings of its members constitute\nmeetings subject to OMA. As explained above, the Municipal Code instead governs this matter.\nBecause a majority of a quorum of the members of the Council discussed public\nbusiness during the February 8, 2024, gathering without providing advance notice and without\nfollowing the other requirements of OMA, this office concludes that the Council violated OMA\non that date. To remedy this violation, this office requests that the Council compile and make\npublicly available minutes of the February 8, 2024, meeting, as the City's attorney agreed to do\nin the event this office determined that the Council violated OMA. This office also cautions the\nCouncil to consider in advance whether any gatherings could involve the mayor and two or more\nalderpersons engaging in deliberative discussions of public business, which would be \"meetings\"\nrequiring advance notice and adherence to the other requirements of OMA.\n5Robert's Rules of Order authorize the chair to vote when their vote is needed to break a tie. This\noffice makes no determination as to whether the chair's ability to cast decisive votes, but not votes in certain other\ncircumstances, renders the chair a non-member for quorum purposes under Robert's Rules of Order.\n\nMr. Roland R. Cross\nJune 21, 2024\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at matthew.goodman@ilag.gov.\n\nVery truly yours,\n\n[REDACTED]\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n80554 o 2a meeting improper mun"}
{"id":1458,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-06-17","case_number":null,"request_numbers":["80950","80951","81027"],"title":"Village of Glendale Heights Board violated OMA by restricting public comment","filename":"80950 80951 81027, issued June 17, 2024.pdf","rel_path":null,"word_count":1935,"summary":"The PAC investigated complaints that the Village of Glendale Heights Board of Trustees improperly restricted public comment during an April 4, 2024, meeting. The PAC determined that the Board violated the Open Meetings Act by prohibiting public comments on matters of Village business and adjourning before all members of the public had an opportunity to speak.","plain_summary":"Several citizens complained that the Village of Glendale Heights Board of Trustees cut off public comments and ended a meeting before everyone could speak. The Attorney General's office found that the Board violated the law by preventing people from speaking on matters of Village business. The Board has been asked to allow public comments at future meetings regardless of whether the topic is on the agenda.","holding":"The Village of Glendale Heights Board of Trustees violated section 2.06(g) of the Open Meetings Act by imposing improper limitations on public comment.","legal_question":"Whether the Village of Glendale Heights Board of Trustees violated section 2.06(g) of the Open Meetings Act by restricting public comment during a regular meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Glendale Heights Board of Trustees","requesting_party":"Multiple individuals","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The restriction of public comment during a Village Board of Trustees meeting.","ocr_status":"ok","ocr_quality":93.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/80950 80951 81027, issued June 17, 2024.pdf","sha256":"2aee34de9e2a02309c714902c87d8d29a94043949c8631ddffbeab55bb1373cf","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","open meetings act","meeting rules","village board"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"June 17, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\nMr. Peter A. Pacione\n\nAttorney for Village of Glendale Heights\nSTORINO, RAMELLO & DURKIN\n\n[street address redacted for site publication -- see original PDF]\nc/o cdimopoulos@srd-law.com\nRE:\n\nOMA Requests for Review – 2024 PAC 80950; 80951; 80952; 81027\n\nDear , , , ,\n\nand Mr. Pacione:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Village of Glendale Heights (Village) Board of Trustees (Board) violated\nOMA during its April 4, 2024, regular meeting by imposing improper limitations on public\n\ncomment.\nBACKGROUND\nOn April 8, 2024, April 9, 2024, and April 13, 2024, the Public Access Bureau\nreceived Requests for Review from , ,\n\nand\n\nalleging that the Board violated OMA by restricting\n\n\fMr. Peter A. Pacione\nJune 17, 2024\n\nPage 2\npublic comment at its April 4, 2024, meeting and adjourning the meeting without\nallowing additional public comments for those who wished to address the Board.\nOn April 16, 2024, and April 17, 2024, this office sent copies of the Requests for\n\nReview to the Board and asked it to provide a written response to the allegations that it\nimproperly restricted public comments at its April 4, 2024, meeting. On May 8, 2024, the Board\n\nprovided its response. On that same date, this office forwarded copies of the Board's responses\nto , , ,\n\nand ;\n\nthey did not reply.\n\nDETERMINATION\nSection 2.06( g) of OMA1 provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\n\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. A public body may restrict public comment\n\nonly pursuant to its established and recorded rules. Ill. Att'y Gen. Pub. Acc. Op. No. 19-002,\nissued January 9, 2019 ( board improperly enforced a rule on public comment that was not\n\nestablished and recorded in violation of section 2.06(g)). Although OMA does not specify the\nnature of rules a public body may permissibly adopt, a board may adopt rules to maintain order\n\nand decorum at public meetings to ensure that meetings are conducted efficiently. Ill. Att'y Gen.\nPub. Acc. Op. No. 14- 012, at 5 ( a public body may promulgate reasonable \" time, place and\n\nmanner\" rules aimed at preserving order and decorum); see Timmon v. Wood, 633 F. Supp. 2d\n453, 465 ( W.D. Mich. 2008) ( acknowledging that public bodies \" have legitimate reasons for\n\nhaving rules to maintain decorum at public meetings\").\nIn its response to this office, the Board stated that\n\nwas asked to \"focus\n\n2\n\nher public comments to an appropriate topic\" when she began speaking about the current\n\nconflict in Gaza because the topic did not relate to an agenda item or other Village business. The\nBoard acknowledged, however, that resolutions calling for a ceasefire or peaceful resolution to\n\nthe conflict appeared on agendas for the Board's March 21, 2024, April 18, 2024, and May 2,\n2024, meetings. The Board further stated:\nSection 1-6-4 of the Glendale Heights Village Code (\" Code\") calls\n\nfor two periods of public comment during a meeting before the\nVillage Board. A copy of Section 1-6-4 of the Code has been\n\nattached to this letter for reference. Each of those public comment\n15 ILCS 120/2.06(g) (West 2022).\n2Letter from Peter A. Pacione, Storino, Romello & Durkin, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau ( May 8, 2024), at [2].\n\n\fMr. Peter A. Pacione\nJune 17, 2024\n\nPage 3\nperiods is restricted to agenda items, and more specifically to\nUnfinished or old business\" and \" Miscellaneous or new business\".\n\nHowever, the Village Board has historically expanded its public\ncomment periods to include any topic related to Village business.\n\nThe Village Board does not entertain public comment related to\nworld issues, Donald Trump, Joe Biden, and other issues not\n\ngermane to the meeting agenda or Village business because a\nmeeting before the Village Board is not the proper venue to\n\naddress those matters.[3]\nThe Board argued that restricting the content of public comments to agenda items is a reasonable\nand permissible restriction, arguing that \"[ s] ome courts have designated this type of forum,\n\nwhere public comment is confined to agenda items, as a limited public forum, which is subject to\nthe same scrutiny as nonpublic forums, i.e., reasonableness and viewpoint neutrality.\" 4\nThe Board cited several first amendment court decisions in support of its\n\ncontention that it may limit public comments under section 2.06(g) to matters that are germane\nand relevant to the meeting agenda. Although first amendment case law pertaining to\n\npermissible limitations on the content of public comments during public meetings provides\nuseful guidance, 5 the first amendment does not define the parameters of the statutory right to\n\naddress a public body during an open meeting under section 2.06(g) of OMA. OMA is a\nstatutory scheme, and the right to address public officials under section 2.06( g) must be analyzed\n\nin the context of that statute as a whole.\nDuring regular meetings, OMA does not preclude members of a public body from\nconsidering \" items not specifically set forth in the agenda,\" ( 5 ILCS 120/ 2.02( a) ( West 2022)), as\n\n3Letter from Peter A. Pacione, Storino, Romello & Durkin, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau (May 8, 2024), at [ 1-2].\n4Letter from Peter A. Pacione, Storino, Romello & Durkin, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau ( May 8, 2024), at [ 3]; citing Reza v. Pearce, 806 F. 3d 497, 502-03 (9th\nCir. 2015); Rowe v. City of Cocoa, 358 F. 3d 800, 803 (11th Cir. 2004) ( per curium).\n5See, e.g., Youkhanna v. City of Sterling Heights, 934 F.3d 508, 519 (6th Cir. 2019) (city council\ndid not violate the first amendment because its rule requiring comments to be relevant to the agenda was reasonable\nin light of the purpose served by the forum -- meeting to approve a settlement that would give zoning permission to\nbuild a mosque -- and because the rule limiting public comment to the agenda item was viewpoint-neutral);\nEichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004) (\"[ M]atters presented at a citizen's forum may be\nlimited to issues germane to town government.\"); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990)\nI]n dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers\nto the subject at hand.\"); I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 924 (N.D. Ill. 2009) (\" A\ncouncil does not violate the First Amendment when it limits public participants to speaking only about subjects on\nthe agenda.\").\n\n\fMr. Peter A. Pacione\nJune 17, 2024\n\nPage 4\nlong as the public body does not take final action on items not listed on the agenda. Given that\nthe public body itself is permitted to discuss matters that are not specifically listed on the agenda,\n\na rule that would prohibit members of the public from addressing matters relevant to the business\nof a public body which are not listed on the agenda would impermissibly restrict the right to\n\npublic comment. Accordingly, this office has determined that a rule limiting participants to\nspeaking only on subjects listed on the agenda would exceed the scope of permissible\n\nrulemaking authorized by section 2.06(g). See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 38037,\nissued August 1, 2016, at 3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 45349, issued March 16, 2017, at\n\n6.\nThese determinations, however, do not conclude that participants have unlimited\ndiscretion to address a public body on any issue. Rather, under section 2.06( g), a public body\n\nmay establish rules that limit public comment to matters directly relevant or germane to the\nbusiness of that particular public body. Otherwise, allowing the public to comment on matters\n\nunrelated to public business would impede the public body's ability to run efficient meetings.\nSee, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6 ( commission\n\ndid not violate 2.06(g) by limiting public comment to matters that were germane to matters that\nthe commission had the authority to consider); Ill. Att'y Gen. PAC Req. Rev. Ltr. 51665, issued\n\nFebruary 5, 2019, at 7 (board did not violate section 2.06(g) by prohibiting speaker from\ncommenting on highly personal matters not related to the business of the board); Scroggins v.\n\nCity of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did not violate first\namendment to the United States Constitution by restricting personal comments about an\n\nappointee to a mayoral commission that were not directly relevant to the business of the public\nbody).\nThis office' s review of the video recording of the Board' s April 4, 2024, regular\n\nmeeting confirmed that the Board interrupted\n\ncomment as she began speaking about\n\nthe current conflict in Gaza. The Village' s attorney informed\n\non topics related to Village business.\n\nthat she may only speak\n\nindicated she would skip ahead to a topic\n\nrelated to Village business, and then stated: \" If Glendale Heights chose to call for a ceasefire,\n\nthis would not be the first time a local body of Americans stood for\" before she was cut off by\nthe Village attorney, who asserted the comment did not concern Village business. 6 After a few\n\nmoments of disagreement by members of the public, the attorney asked if anyone else would like\nto discuss Village business. Before any member of the public had an opportunity to respond, the\n\nChair asked for a motion to adjourn, another member made the motion, the motion was\nseconded, and the Board voted to end the meeting.\nThe Board argued that its meetings are not the proper venue to address world\n\nissues, but resolutions calling for a ceasefire in Gaza appeared on the Board's March 21, 2024,\n6Glendale Heights Village Board, Regular Meeting, April 4, 2024, Video Recording,\nhttps:// www.youtube. com/watch?v=MTWjVD30kow, at 26:54-27:00.\n\n\fMr. Peter A. Pacione\nJune 17, 2024\n\nPage 5\nmeeting agenda as well as the agendas for the two regular meetings that immediately followed\nthe April 4, 2024, regular meeting. Under these circumstances,\n\nwas not attempting to\n\ncomment on random international affairs unrelated to Village business when she was prohibited\nfrom speaking about the Gaza conflict at the April 4, 2024, meeting. Therefore, the Board\n\nviolated section 2.06(g) of OMA by restricting\nbefore\n\ncomment and ending its meeting\n\nand other members of the public had an opportunity to address the Board.\nIn accordance with the conclusions of this determination, this office requests that\n\nthe Board instruct its presiding officers to refrain at its future meetings from prohibiting\nmembers of the public from providing public comments regarding issues of Village business,\n\nregardless of whether the matter appears on the agenda for that meeting.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\n\nplease contact me at benjamin.silver@ilag.gov or (773) 590-7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n80950 80951 80952 81027 o 206g improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Restriction of public comment at a village board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-80950/","full_text":"June 17, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\n\nVia electronic mail\nMr. Peter A. Pacione\n\nAttorney for Village of Glendale Heights\nSTORINO, RAMELLO & DURKIN\n\n[street address redacted for site publication -- see original PDF]\nc/o cdimopoulos@srd-law.com\nRE:\n\nOMA Requests for Review – 2024 PAC 80950; 80951; 80952; 81027\n\nDear,,,,\n\nand Mr. Pacione:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that the Village of Glendale Heights (Village) Board of Trustees (Board) violated\nOMA during its April 4, 2024, regular meeting by imposing improper limitations on public\n\ncomment.\n\npublic comment at its April 4, 2024, meeting and adjourning the meeting without\nallowing additional public comments for those who wished to address the Board.\nOn April 16, 2024, and April 17, 2024, this office sent copies of the Requests for\n\nReview to the Board and asked it to provide a written response to the allegations that it\nimproperly restricted public comments at its April 4, 2024, meeting. On May 8, 2024, the Board\n\nprovided its response. On that same date, this office forwarded copies of the Board's responses\nto,,,\n\nand;\n\nthey did not reply.\n\nDETERMINATION\nSection 2.06(g) of OMA1 provides that \"[ a] ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" This provision \" requires that all public bodies subject to the Act provide an opportunity\n\nfor members of the public to address public officials at open meetings.\" Ill. Att'y Gen. Pub. Acc.\nOp. No. 14- 012, issued September 30, 2014, at 5. A public body may restrict public comment\n\nonly pursuant to its established and recorded rules. Ill. Att'y Gen. Pub. Acc. Op. No. 19-002,\nissued January 9, 2019 (board improperly enforced a rule on public comment that was not\n\nestablished and recorded in violation of section 2.06(g)). Although OMA does not specify the\nnature of rules a public body may permissibly adopt, a board may adopt rules to maintain order\n\nand decorum at public meetings to ensure that meetings are conducted efficiently. Ill. Att'y Gen.\nPub. Acc. Op. No. 14- 012, at 5 (a public body may promulgate reasonable \" time, place and\n\nmanner\" rules aimed at preserving order and decorum); see Timmon v. Wood, 633 F. Supp. 2d\n453, 465 (W.D. Mich. 2008) (acknowledging that public bodies \" have legitimate reasons for\n\nhaving rules to maintain decorum at public meetings\").\nIn its response to this office, the Board stated that\n\nwas asked to \"focus\n\n2\n\nher public comments to an appropriate topic\" when she began speaking about the current\n\nconflict in Gaza because the topic did not relate to an agenda item or other Village business. The\nBoard acknowledged, however, that resolutions calling for a ceasefire or peaceful resolution to\n\nthe conflict appeared on agendas for the Board's March 21, 2024, April 18, 2024, and May 2,\n2024, meetings. The Board further stated:\nSection 1-6-4 of the Glendale Heights Village Code (\" Code\") calls\n\nfor two periods of public comment during a meeting before the\n\nperiods is restricted to agenda items, and more specifically to\nUnfinished or old business\" and \" Miscellaneous or new business\".\n\nHowever, the Village Board has historically expanded its public\ncomment periods to include any topic related to Village business.\n\nThe Village Board does not entertain public comment related to\nworld issues, Donald Trump, Joe Biden, and other issues not\n\ngermane to the meeting agenda or Village business because a\nmeeting before the Village Board is not the proper venue to\n\naddress those matters.[3]\nThe Board argued that restricting the content of public comments to agenda items is a reasonable\nand permissible restriction, arguing that \"[ s] ome courts have designated this type of forum,\n\nwhere public comment is confined to agenda items, as a limited public forum, which is subject to\nthe same scrutiny as nonpublic forums, i.e., reasonableness and viewpoint neutrality.\" 4\nThe Board cited several first amendment court decisions in support of its\n\ncontention that it may limit public comments under section 2.06(g) to matters that are germane\nand relevant to the meeting agenda. Although first amendment case law pertaining to\n\npermissible limitations on the content of public comments during public meetings provides\nuseful guidance, 5 the first amendment does not define the parameters of the statutory right to\n\naddress a public body during an open meeting under section 2.06(g) of OMA. OMA is a\nstatutory scheme, and the right to address public officials under section 2.06(g) must be analyzed\n\nin the context of that statute as a whole.\nDuring regular meetings, OMA does not preclude members of a public body from\nconsidering \" items not specifically set forth in the agenda,\" (5 ILCS 120/ 2.02(a) (West 2022)), as\n\n3 Letter from Peter A. Pacione, Storino, Romello & Durkin, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau (May 8, 2024), at [ 1-2].\n4 Letter from Peter A. Pacione, Storino, Romello & Durkin, to Benjamin J. Silver, Assistant\nAttorney General, Public Access Bureau (May 8, 2024), at [ 3]; citing Reza v. Pearce, 806 F. 3d 497, 502-03 (9th\nCir. 2015); Rowe v. City of Cocoa, 358 F. 3d 800, 803 (11th Cir. 2004) (per curium).\n5 See, e.g., Youkhanna v. City of Sterling Heights, 934 F.3d 508, 519 (6th Cir. 2019) (city council\ndid not violate the first amendment because its rule requiring comments to be relevant to the agenda was reasonable\nin light of the purpose served by the forum -- meeting to approve a settlement that would give zoning permission to\nbuild a mosque -- and because the rule limiting public comment to the agenda item was viewpoint-neutral);\nEichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004) (\"[ M]atters presented at a citizen's forum may be\nlimited to issues germane to town government.\"); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990)\nI]n dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers\nto the subject at hand.\"); I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 924 (N.D. Ill. 2009) (\" A\ncouncil does not violate the First Amendment when it limits public participants to speaking only about subjects on\n\nlong as the public body does not take final action on items not listed on the agenda. Given that\nthe public body itself is permitted to discuss matters that are not specifically listed on the agenda,\n\na rule that would prohibit members of the public from addressing matters relevant to the business\nof a public body which are not listed on the agenda would impermissibly restrict the right to\n\npublic comment. Accordingly, this office has determined that a rule limiting participants to\nspeaking only on subjects listed on the agenda would exceed the scope of permissible\n\nrulemaking authorized by section 2.06(g). See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 38037,\nissued August 1, 2016, at 3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 45349, issued March 16, 2017, at\n\n6.\nThese determinations, however, do not conclude that participants have unlimited\ndiscretion to address a public body on any issue. Rather, under section 2.06(g), a public body\n\nmay establish rules that limit public comment to matters directly relevant or germane to the\nbusiness of that particular public body. Otherwise, allowing the public to comment on matters\n\nunrelated to public business would impede the public body's ability to run efficient meetings.\nSee, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 49820, issued January 31, 2019, at 6 (commission\n\ndid not violate 2.06(g) by limiting public comment to matters that were germane to matters that\nthe commission had the authority to consider); Ill. Att'y Gen. PAC Req. Rev. Ltr. 51665, issued\n\nFebruary 5, 2019, at 7 (board did not violate section 2.06(g) by prohibiting speaker from\ncommenting on highly personal matters not related to the business of the board); Scroggins v.\n\nCity of Topeka, Kan., 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998) (city council did not violate first\namendment to the United States Constitution by restricting personal comments about an\n\nappointee to a mayoral commission that were not directly relevant to the business of the public\nbody).\nThis office's review of the video recording of the Board's April 4, 2024, regular\n\nmeeting confirmed that the Board interrupted\n\ncomment as she began speaking about\n\nthe current conflict in Gaza. The Village's attorney informed\n\non topics related to Village business.\n\nthat she may only speak\n\nindicated she would skip ahead to a topic\n\nrelated to Village business, and then stated: \" If Glendale Heights chose to call for a ceasefire,\n\nthis would not be the first time a local body of Americans stood for\" before she was cut off by\nthe Village attorney, who asserted the comment did not concern Village business. 6 After a few\n\nmoments of disagreement by members of the public, the attorney asked if anyone else would like\nto discuss Village business. Before any member of the public had an opportunity to respond, the\n\nChair asked for a motion to adjourn, another member made the motion, the motion was\nseconded, and the Board voted to end the meeting.\nThe Board argued that its meetings are not the proper venue to address world\n\nissues, but resolutions calling for a ceasefire in Gaza appeared on the Board's March 21, 2024,\n\nmeeting agenda as well as the agendas for the two regular meetings that immediately followed\nthe April 4, 2024, regular meeting. Under these circumstances,\n\nwas not attempting to\n\ncomment on random international affairs unrelated to Village business when she was prohibited\nfrom speaking about the Gaza conflict at the April 4, 2024, meeting. Therefore, the Board\n\nviolated section 2.06(g) of OMA by restricting\nbefore\n\ncomment and ending its meeting\n\nand other members of the public had an opportunity to address the Board.\nIn accordance with the conclusions of this determination, this office requests that\n\nthe Board instruct its presiding officers to refrain at its future meetings from prohibiting\nmembers of the public from providing public comments regarding issues of Village business,\n\nregardless of whether the matter appears on the agenda for that meeting.\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\n\nplease contact me at benjamin.silver@ilag.gov or (773) 590-7878.\nVery truly yours,\n\nBENJAMIN J. SILVER\nAssistant Attorney General\n\nPublic Access Bureau\n80950 80951 80952 81027 o 206g improper mun"}
{"id":1459,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-07-16","case_number":null,"request_numbers":["81010"],"title":"Joliet Junior College Board of Trustees violated Open Meetings Act by voting on censure motions not on agenda","filename":"81010, issued July 16, 2024.pdf","rel_path":null,"word_count":3342,"summary":"A requester alleged that the Joliet Junior College Board of Trustees improperly discussed her conduct in closed session and took final action on censure motions without proper agenda notice. The PAC determined that while the closed session discussion was permissible, the Board violated the Open Meetings Act by voting on censure motions that were not listed on the meeting agenda.","plain_summary":"A college board held a closed-door meeting to discuss a trustee's conduct and subsequently voted on thirteen motions to censure her. The Attorney General's office found that the board failed to follow the law because they did not list these censure votes on the public meeting agenda beforehand. This means the board denied the public the required notice of the actions they intended to take.","holding":"The Board of Trustees violated section 2.02(c) of the Open Meetings Act by voting on thirteen censure motions without providing the general subject matter of those censures in the meeting agenda.","legal_question":"Did the Board of Trustees violate the Open Meetings Act by voting on censure motions that were not included in the meeting's public agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Joliet Junior College Board of Trustees","requesting_party":"Ms. [Name Redacted]","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board of Trustees voted on thirteen censure motions against a trustee without providing notice of those actions on the meeting agenda.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/81010, issued July 16, 2024.pdf","sha256":"f39e6d9c4ecafda6f11c1cd6bbcb8ceff68b545c5d91c17270a152677ab8e84e","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","censure","public notice","closed session","board of trustees"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"July 16, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable James Budzinski\nChairman, Board of Trustees\n\nJoliet Junior College\n1215 Houbolt Road\n\nJoliet, Illinois 60431\nc/o Karyn. Reczek@jjc. edu\nRE: OMA Request for Review – 2024 PAC 81010\nDear\n\nand Mr. Budzinski:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)).\nBACKGROUND\nOn April 12, 2024,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board of Trustees ( Board) of Joliet Junior College\n\nCollege) violated OMA at its February 14, 2024, meeting by discussing a matter in closed\nsession that did not fall within the scope of section 2(c)( 1) of OMA, 1 one of the exceptions cited\n\nas the basis for the closed session. Specifically, she contended that the Board discussed issues\nrelated to her conduct in her capacity as an elected trustee.\n\nalso asserted that\n\n15 ILCS 120/2(c)(1) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 2\ntrustees improperly took notes in closed session, which were then \"used to draft motions of 13\ncensures voted on by the Board following. In addition, the President of JJC brought the discussed\n\nitems out of the closed session on his laptop and the Board illegally voted on them.\" 2\nOn April 19, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its February 14, 2024, meeting agenda,\n\nopen and closed session minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to the allegation that the Board improperly\n\ndiscussed issues related to\n\nin closed session. On April 30, 2024, this office\n\nreceived the requested materials, including a complete response for this office' s confidential\n\nreview and a redacted version for this office to forward to\noffice forwarded a copy of the Board' s response to\n\n3\n\nOn May 1, 2024, this\n\nshe replied on May 20, 2024.\n\nAs an initial matter, the Public Access Counselor' s authority to resolve disputes is\n\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/1 et seq.\nWest 2022)). See 15 ILCS 205/ 7(c)(3) ( West 2022). OMA concerns the transparency with\n\nwhich public bodies meet and conduct business. It does not address whether members of a\npublic body may take notes in closed session or whether those notes may be disseminated or\n\nused outside of the closed session. Accordingly, this office took no further action on the\nallegation that Board members improperly prepared and disseminated notes outside of a closed\n\nsession.\nHowever, based on this office's review of the meeting minutes, this office\nrequested a supplemental response from the Board on June 25, 2024, addressing whether it\n\ncomplied with the agenda requirements in section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West\n2022)) related to its votes in open session on the censures. On July 12, 2024, the Board\n\nresponded.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989).\n\n2E- mail from\n\nJJC Trustee, to Public Access (April 12, 2024).\n\n3See 5 ILCS 120/3.5(c) (West 2022) (\" The Public Access Counselor shall forward a copy of the answer\nor redacted answer, if furnished, to the person submitting the request for review.\").\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 3\nClosed Session Discussion\nSection 2(a) of OMA4 provides that all meetings of a public body must be open to\nthe public unless the discussion falls within the scope of one of the exceptions set out in section\n\n2(c) of OMA.5 Section 2(c)(1) of OMA permits a public body to hold closed session to discuss,\nin pertinent part:\nThe appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees, specific\nindividuals who serve as independent contractors in a park,\n\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\n\nvalidity.\nThe \"purpose of the [2(c)(1)] exception is to protect the identity and reputation of\na person[.]\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 128. In construing\n\nthis exception, the Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)( 1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3). The Public Access Bureau has previously determined that \"[ t]he use\nof the term ' specific employees' in section 2(c)( 1) significantly limits the scope of the exception\"\n\nto \"the hiring merits, performance, conduct or terms of employment of individual employees.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.\nIn its response to this office, the Board asserted it properly entered closed session\n\nto discuss an employee matter pursuant to section 2(c)(1). Specifically, the Board stated it\nentered closed session to discuss the employment contract of College President Clyne Namuo.\n\nThe Board asserted that during the closed session, President Namuo presented \" his concerns and\n\n45 ILCS 120/2(a) ( West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n55 ILCS 120/2(c) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 4\nissues\" related to his employment, and the Board then discussed those matters.6 The Board\nstated that the trustees \" offered their views on the situation and their concerns\" about the matters\n\nraised by President Namuo.7 In the confidential portions of its response, the Board addressed its\nclaim that the discussion related to President Namuo' s employment contract and described in\n\nfurther detail its discussion. Additionally, the Board argued that its trustees are \" volunteers\"\nbecause they are not compensated for their service and thus that any closed session discussions\n\nconcerning particular trustees still fell within the scope of section 2(c)(1). In reply to that\nanswer,\n\ndisputed the Board' s claim that she was a volunteer, reiterating that she is\n\nan elected official rather than a volunteer of the board.\nHaving reviewed the verbatim recording of the disputed closed session\ndiscussion, it is apparent that the discussion focused on the employment of a specific employee,\n\nPresident Namuo. Because the Board addressed its arguments concerning the 2(c)(1) exception\nin the confidential portions of its response, this office cannot address them other than to confirm\n\nthat the Board discussed certain issues raised by President Namuo. These issues directly\npertained to the working conditions surrounding his employment and reputation as president of\n\nthe College. Although the issues also related to\n\nthe discussion of her conduct\n\nwas intertwined with and directly relevant to the Board' s consideration of ways to address\n\nPresident Namuo's employment. Because the discussion of\n\nconduct provided\n\ncontext that was needed to fully consider the terms of Dr. Namuo' s employment and how to\n\nresolve his concerns regarding his continued employment at the College, they did not exceed the\nscope of section 2(c)( 1). See Gosnell v. Hogan, 179 Ill. App. 3d 161, 175- 76 ( 1989) ( school\n\nboard did not improperly discuss employee's goals in closed session under exception for\ndiscussions of employee' s performance because goals and performance are inextricably\n\nintertwined); Galena Gazette Publications, Inc. v. County of Jo Daviess, 375 Ill. App. 3d 338,\n344 (2007) (discussion of the racking of promotional brochures at property that was the subject\nof a proposed subleasing agreement was permissible under the exception that permits public\n\nbodies to discuss \"[ t]he purchase or lease of real property for the use of the public body[ ]\" 8 in\nclosed session \" because it was pertinent to the terms, effects, or desirability of the proposed\n\nsubleasing arrangement. The participants did not discuss the racking of promotional literature\nseparately from their consideration of the proposed subleasing * * *.\n\nTo abstract any such\n\ndiscussions from the larger context would ignore the participants' purposes in raising the\nissue[.]\").\n\nAccordingly, this office concludes that the Board' s closed session discussion did not\n\nviolate OMA.\n6Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (April 30, 2024), at 2.\n7Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (April 30, 2024), at 2.\n85 ILCS 120/2(c-5) (West 2004).\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 5\n\nDespite that finding, this office would be remiss if it did not also conclude, for\n\nfuture reference, that Board members plainly are not \"specific volunteers of the public body\"\nwhose \" appointment, employment, compensation, discipline, performance, or dismissal\" may be\n\ndiscussed in closed session pursuant to section 2(c)(1) of OMA. A \"volunteer\" is defined as \"[ a]\nvoluntary actor or agent in a transaction; esp; a person who, without an employer' s assent and\n\nwithout any justification from legitimate personal interest, helps * * * in the performance of the\nemployer' s business.\"\n\nBlack' s Law Dictionary 1887 ( 11th ed. 2019). The Board' s response to\n\nthis office emphasized that Board members are not paid for their services and noted that a\nvolunteer\" is also defined as \"[ a] person who gives his services without any express or implied\n\npromise of renumeration.\" Black's Law Dictionary 1413 (5th ed. 1979). OMA, however,\nexpressly identifies members of public bodies as \" public officials[.]\"\n\nSee 5 ILCS 120/ 2.06( g)\n\nWest 2022) (\" Any person shall be permitted an opportunity to address public officials under the\nrules established and recorded by the public body.\") A \"public official\" is \"[ s] omeone who holds\n\nor is invested with a public office; a person elected or appointed to carry out some portion of a\ngovernment' s sovereign powers.\" Black' s Law Dictionary 1309 ( 11th ed. 2019). In Ill. Att'y\n\nGen. Pub. Acc. Op. No. 17-013, issued November 21, 2017, at 4, the Attorney General\nconcluded that \" elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies that may be discussed in closed session under section 2(c)(1).\"\nLikewise, elected officials are not \" volunteers\" for purposes of section 2(c)( 1). The exception\n\nthat permits closed session discussions of members of public bodies is found in section 2(c)(3) of\nOMA, 9 but it is applicable only to particular topics and public bodies with certain powers.\n\nSpecifically, section 2(c)(3) of OMA applies to:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\n\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\n\noffice, when the public body is given power to remove the\noccupant under law or ordinance.\n\nThe Board should be mindful of the limited scope of sections 2(c)(1) and 2(c)(3) before\ndetermining whether to hold any future closed session discussions that pertain to the conduct of\n\nits members.\n\n95 ILCS 120/2(c)(3) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 6\nSufficiency of Meeting Agenda\nSection 1 of OMA (5 ILCS 120/1 (West 2022)) \" declares it to be the public policy\nof this State that its citizens shall be given advance notice of and the right to attend all meetings\n\nat which any business of a public body is discussed or acted upon in any way.\" To that end,\nsection 2.02( c) of OMA ( 5 ILCS 120/ 2.02( c) ( West 2022)) provides that \"[ a] ny agenda required\n\nunder this Section shall set forth the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\nIn its supplemental response to this office, the Board did not deny that it voted on\n\ncertain motions to censure\n\nin her role as a trustee. The Board explained that\n\nt]he purpose of the censures was to allow the Board of Trustees to govern itself and its\n\nmembers in the conduct of its business.\" 10 The Board argued, however, that those censure\nmotions were not required to be included in the agenda:\nA reprimand is neither an ordinance nor a resolution that binds the\n\npublic body to some future conduct or policy. It does not require\nany action to be taken on behalf of the public body, such as\n\nenforcement of a regulation, execution of an agreement,\nperformance of an action pursuant to a contract or other obligation,\n\netc. Nor is the reprimand a public statement of a policy or\nproclamation of the College. Eash censure was simply a\n\nreprimand (and, in this case, each was not a written reprimand,\nmerely an oral reprimand) by the Board – not the College – of one\n\nof its members.[11]\nIn support of its contention that the censure motions were not binding or substantive actions, the\n\nBoard highlighted that under Robert's Rules of Order, a public body may adopt a motion of\ncensure without requiring any formal disciplinary proceeding.\n\nThe Board also contended that\n\nthe censure motions, which were simply oral reprimands, do not rise to the same level of\ninvolvement and obligation of the public body or its resources\" 12 as the actions that this office\n\n10Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 4.\n11Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 2.\n12Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 3.\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 7\nhas found in binding opinions13 to violate the agenda requirements of section 2.02(c).\nAdditionally, the Board argued that \" requir[ ing] the Board of Trustees to put on the agenda items\n\nthat require immediate response in order to effectively provide for the administration of its\nbusiness on behalf of the College would be overly restrictive.\" 14\nThe primary objective when construing the meaning of a statute is to ascertain\n\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). The most reliable indicator of legislative intent is the statutory language, given its plain\n\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Black' s Law Dictionary defines \" resolution,\" in relevant part, as: \" Formal\n\naction by a corporate board of directors or other corporate body authorizing a particular act,\ntransaction, or appointment.\" ( Emphasis added.) Black' s Law Dictionary 1568 ( 11th ed. 2019).\nThe Board' s February 14, 2024, meeting minutes15 reflect that during the \" New\n\nBusiness\" portion of the meeting, the Board discussed and voted on thirteen motions to censure\nin her capacity as a trustee for violations of the Board' s Code of Conduct. The\n\nagenda provides no mention of or reference to a possible censure of a trustee under \"New\nBusiness\" or any other section of the agenda.\nHaving reviewed the meeting materials and Board' s supplemental response, the\n\nBoard took final action by voting on motions to censure a trustee without providing advance\nnotice of the general subject matter of that action in the meeting agenda. As the Board noted, a\n\nreprimand\" is defined as \"[ a] public and formal censure or severe reproof, administered to a\nperson in fault by his superior officer or by a body to which he belongs.\" 16 Although the Board\n\ndid not label the censures as a \" resolution,\" it is clear that the Board went beyond merely\ndiscussing issues concerning\n\nand expressing opinions about her conduct. The\n\nBoard took the matter a step further by voting to authorize thirteen formal censures or\n13Ill. Att'y Gen. Pub. Acc. Op. No. 15-005, issued August 4, 2015 (agenda did not provide advance\nnotice to public that board might take final action to approve a contract for police services); Ill. Att'y Gen. Pub. Acc.\nOp. No. 16-015, issued December 30, 2016 (agenda did not provide general subject matter of vote to amend and\napprove a settlement agreement); Ill. Att'y Gen. Pub. Acc. Op. No. 22 -006, issued May 6, 2022 (board improperly\ntook final action when it made a decision to amend school district's masking guidelines without providing advance\nnotice of that possible action in the agenda).\n14Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 4.\n15Illinois Community College District 525, Joliet Junior College Board of Trustees, Meeting,\nFebruary 14, 2024, Minutes 4-8.\n16Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 2 (citing Black's Law Dictionary, 2nd\nEdition).\n\n\fThe Honorable James Budzinski\nJuly 16, 2024\nPage 8\nreprimands of\n\nand therefore took final action on a \" resolution\" under the plain\n\nmeaning of that word. This type of substantive action is distinguishable from procedural matters,\n\nsuch as motions to adjourn and motions to enter closed session, that do not constitute final action\nand therefore are not required to appear on meeting agendas.\nThe Board downplays its reprimands by asserting that the reprimands did not\n\ninvolve any formal disciplinary proceeding and were not a public statement of policy or\nproclamation of the College. As the College' s governing body, the Board of Trustees represents\n\nthe interests of the College and, therefore, any public statements from the Board reflect on the\nCollege. Even if the censures were not binding on any future policy, the censures were an\n\nofficial action by the Board aimed at changing or improving the conduct of a trustee. Board\nmembers may have believed the underlying situation was a pressing matter that required a timely\n\nresponse, but OMA did not authorize the Board to act without providing advance notice to the\npublic. Accordingly, this office concludes that the Board violated section 2.02( c) of OMA by\n\nvoting on thirteen censure motions without providing the general subject matter of those\ncensures in the February 14, 2024, meeting agenda.\n\nThis office cautions the Board to ensure that its future agendas provide sufficient\nadvance notice of final actions in accordance with section 2.02( c) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n81010 o 2c1 proper 202c improper univ\ncc:\n\nVia electronic mail\nMr. Brian Kopman\n\nAttorney for Joliet Junior College\nKGG, LLC\n\n111 North Ottawa Street\nJoliet, Illinois 60432\n\nbkopman@kggllc.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's vote on undisclosed censure motions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-81010/","full_text":"July 16, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable James Budzinski\nChairman, Board of Trustees\n\nJoliet Junior College\n1215 Houbolt Road\n\nJoliet, Illinois 60431\nc/o Karyn. Reczek@jjc. edu\nRE: OMA Request for Review – 2024 PAC 81010\nDear\n\nand Mr. Budzinski:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)).\nBACKGROUND\nOn April 12, 2024,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the Board of Trustees (Board) of Joliet Junior College\n\nCollege) violated OMA at its February 14, 2024, meeting by discussing a matter in closed\nsession that did not fall within the scope of section 2(c)(1) of OMA, 1 one of the exceptions cited\n\nas the basis for the closed session. Specifically, she contended that the Board discussed issues\nrelated to her conduct in her capacity as an elected trustee.\n\nalso asserted that\n\n15 ILCS 120/2(c)(1) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\ntrustees improperly took notes in closed session, which were then \"used to draft motions of 13\ncensures voted on by the Board following. In addition, the President of JJC brought the discussed\n\nitems out of the closed session on his laptop and the Board illegally voted on them.\" 2\nOn April 19, 2024, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its February 14, 2024, meeting agenda,\n\nopen and closed session minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to the allegation that the Board improperly\n\ndiscussed issues related to\n\nin closed session. On April 30, 2024, this office\n\nreceived the requested materials, including a complete response for this office's confidential\n\nreview and a redacted version for this office to forward to\noffice forwarded a copy of the Board's response to\n\n3\n\nOn May 1, 2024, this\n\nshe replied on May 20, 2024.\n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/1 et seq.\nWest 2022)). See 15 ILCS 205/ 7(c)(3) (West 2022). OMA concerns the transparency with\n\nwhich public bodies meet and conduct business. It does not address whether members of a\npublic body may take notes in closed session or whether those notes may be disseminated or\n\nused outside of the closed session. Accordingly, this office took no further action on the\nallegation that Board members improperly prepared and disseminated notes outside of a closed\n\nsession.\nHowever, based on this office's review of the meeting minutes, this office\nrequested a supplemental response from the Board on June 25, 2024, addressing whether it\n\ncomplied with the agenda requirements in section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West\n2022)) related to its votes in open session on the censures. On July 12, 2024, the Board\n\nresponded.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\n\n2E- mail from\n\nJJC Trustee, to Public Access (April 12, 2024).\n\n3 See 5 ILCS 120/3.5(c) (West 2022) (\" The Public Access Counselor shall forward a copy of the answer\n\nClosed Session Discussion\nSection 2(a) of OMA4 provides that all meetings of a public body must be open to\nthe public unless the discussion falls within the scope of one of the exceptions set out in section\n\n2(c) of OMA.5 Section 2(c)(1) of OMA permits a public body to hold closed session to discuss,\nin pertinent part:\nThe appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees, specific\nindividuals who serve as independent contractors in a park,\n\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\n\nvalidity.\nThe \"purpose of the [2(c)(1)] exception is to protect the identity and reputation of\na person[.]\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 128. In construing\n\nthis exception, the Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)(1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3). The Public Access Bureau has previously determined that \"[ t]he use\nof the term ' specific employees' in section 2(c)(1) significantly limits the scope of the exception\"\n\nto \"the hiring merits, performance, conduct or terms of employment of individual employees.\"\nIll. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.\nIn its response to this office, the Board asserted it properly entered closed session\n\nto discuss an employee matter pursuant to section 2(c)(1). Specifically, the Board stated it\nentered closed session to discuss the employment contract of College President Clyne Namuo.\n\nThe Board asserted that during the closed session, President Namuo presented \" his concerns and\n\nissues\" related to his employment, and the Board then discussed those matters.6 The Board\nstated that the trustees \" offered their views on the situation and their concerns\" about the matters\n\nraised by President Namuo.7 In the confidential portions of its response, the Board addressed its\nclaim that the discussion related to President Namuo's employment contract and described in\n\nfurther detail its discussion. Additionally, the Board argued that its trustees are \" volunteers\"\nbecause they are not compensated for their service and thus that any closed session discussions\n\nconcerning particular trustees still fell within the scope of section 2(c)(1). In reply to that\nanswer,\n\ndisputed the Board's claim that she was a volunteer, reiterating that she is\n\nan elected official rather than a volunteer of the board.\nHaving reviewed the verbatim recording of the disputed closed session\ndiscussion, it is apparent that the discussion focused on the employment of a specific employee,\n\nPresident Namuo. Because the Board addressed its arguments concerning the 2(c)(1) exception\nin the confidential portions of its response, this office cannot address them other than to confirm\n\nthat the Board discussed certain issues raised by President Namuo. These issues directly\npertained to the working conditions surrounding his employment and reputation as president of\n\nthe College. Although the issues also related to\n\nthe discussion of her conduct\n\nwas intertwined with and directly relevant to the Board's consideration of ways to address\n\nPresident Namuo's employment. Because the discussion of\n\nconduct provided\n\ncontext that was needed to fully consider the terms of Dr. Namuo's employment and how to\n\nresolve his concerns regarding his continued employment at the College, they did not exceed the\nscope of section 2(c)(1). See Gosnell v. Hogan, 179 Ill. App. 3d 161, 175- 76 (1989) (school\n\nboard did not improperly discuss employee's goals in closed session under exception for\ndiscussions of employee's performance because goals and performance are inextricably\n\nintertwined); Galena Gazette Publications, Inc. v. County of Jo Daviess, 375 Ill. App. 3d 338,\n344 (2007) (discussion of the racking of promotional brochures at property that was the subject\nof a proposed subleasing agreement was permissible under the exception that permits public\n\nbodies to discuss \"[ t]he purchase or lease of real property for the use of the public body[ ]\" 8 in\nclosed session \" because it was pertinent to the terms, effects, or desirability of the proposed\n\nsubleasing arrangement. The participants did not discuss the racking of promotional literature\nseparately from their consideration of the proposed subleasing * * *.\n\nTo abstract any such\n\ndiscussions from the larger context would ignore the participants' purposes in raising the\nissue[.]\").\n\nAccordingly, this office concludes that the Board's closed session discussion did not\n\nviolate OMA.\n\nDespite that finding, this office would be remiss if it did not also conclude, for\n\nfuture reference, that Board members plainly are not \"specific volunteers of the public body\"\nwhose \" appointment, employment, compensation, discipline, performance, or dismissal\" may be\n\ndiscussed in closed session pursuant to section 2(c)(1) of OMA. A \"volunteer\" is defined as \"[ a]\nvoluntary actor or agent in a transaction; esp; a person who, without an employer's assent and\n\nwithout any justification from legitimate personal interest, helps * * * in the performance of the\nemployer's business.\"\n\nBlack's Law Dictionary 1887 (11th ed. 2019). The Board's response to\n\nthis office emphasized that Board members are not paid for their services and noted that a\nvolunteer\" is also defined as \"[ a] person who gives his services without any express or implied\n\npromise of renumeration.\" Black's Law Dictionary 1413 (5th ed. 1979). OMA, however,\nexpressly identifies members of public bodies as \" public officials[.]\"\n\nSee 5 ILCS 120/ 2.06(g)\n\nWest 2022) (\" Any person shall be permitted an opportunity to address public officials under the\nrules established and recorded by the public body.\") A \"public official\" is \"[ s] omeone who holds\n\nor is invested with a public office; a person elected or appointed to carry out some portion of a\ngovernment's sovereign powers.\" Black's Law Dictionary 1309 (11th ed. 2019). In Ill. Att'y\n\nGen. Pub. Acc. Op. No. 17-013, issued November 21, 2017, at 4, the Attorney General\nconcluded that \" elected members of a Village Board are occupants of a public office, not\n\nemployees' of public bodies that may be discussed in closed session under section 2(c)(1).\"\nLikewise, elected officials are not \" volunteers\" for purposes of section 2(c)(1). The exception\n\nthat permits closed session discussions of members of public bodies is found in section 2(c)(3) of\nOMA, 9 but it is applicable only to particular topics and public bodies with certain powers.\n\nSpecifically, section 2(c)(3) of OMA applies to:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\n\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\n\noffice, when the public body is given power to remove the\noccupant under law or ordinance.\n\nThe Board should be mindful of the limited scope of sections 2(c)(1) and 2(c)(3) before\ndetermining whether to hold any future closed session discussions that pertain to the conduct of\n\nits members.\n\n95 ILCS 120/2(c)(3) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\nSufficiency of Meeting Agenda\nSection 1 of OMA (5 ILCS 120/1 (West 2022)) \" declares it to be the public policy\nof this State that its citizens shall be given advance notice of and the right to attend all meetings\n\nat which any business of a public body is discussed or acted upon in any way.\" To that end,\nsection 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2022)) provides that \"[ a] ny agenda required\n\nunder this Section shall set forth the general subject matter of any resolution or ordinance that\nwill be the subject of final action at the meeting.\"\nIn its supplemental response to this office, the Board did not deny that it voted on\n\ncertain motions to censure\n\nin her role as a trustee. The Board explained that\n\nt]he purpose of the censures was to allow the Board of Trustees to govern itself and its\n\nmembers in the conduct of its business.\" 10 The Board argued, however, that those censure\nmotions were not required to be included in the agenda:\nA reprimand is neither an ordinance nor a resolution that binds the\n\npublic body to some future conduct or policy. It does not require\nany action to be taken on behalf of the public body, such as\n\nenforcement of a regulation, execution of an agreement,\nperformance of an action pursuant to a contract or other obligation,\n\netc. Nor is the reprimand a public statement of a policy or\nproclamation of the College. Eash censure was simply a\n\nreprimand (and, in this case, each was not a written reprimand,\nmerely an oral reprimand) by the Board – not the College – of one\n\nof its members.[11]\nIn support of its contention that the censure motions were not binding or substantive actions, the\n\nBoard highlighted that under Robert's Rules of Order, a public body may adopt a motion of\ncensure without requiring any formal disciplinary proceeding.\n\nThe Board also contended that\n\nthe censure motions, which were simply oral reprimands, do not rise to the same level of\ninvolvement and obligation of the public body or its resources\" 12 as the actions that this office\n\n10 Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 4.\n11 Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 2.\n12 Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\n\nhas found in binding opinions13 to violate the agenda requirements of section 2.02(c).\nAdditionally, the Board argued that \" requir[ ing] the Board of Trustees to put on the agenda items\n\nthat require immediate response in order to effectively provide for the administration of its\nbusiness on behalf of the College would be overly restrictive.\" 14\nThe primary objective when construing the meaning of a statute is to ascertain\n\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). The most reliable indicator of legislative intent is the statutory language, given its plain\n\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Black's Law Dictionary defines \" resolution,\" in relevant part, as: \" Formal\n\naction by a corporate board of directors or other corporate body authorizing a particular act,\ntransaction, or appointment.\" (Emphasis added.) Black's Law Dictionary 1568 (11th ed. 2019).\nThe Board's February 14, 2024, meeting minutes15 reflect that during the \" New\n\nBusiness\" portion of the meeting, the Board discussed and voted on thirteen motions to censure\nin her capacity as a trustee for violations of the Board's Code of Conduct. The\n\nagenda provides no mention of or reference to a possible censure of a trustee under \"New\nBusiness\" or any other section of the agenda.\nHaving reviewed the meeting materials and Board's supplemental response, the\n\nBoard took final action by voting on motions to censure a trustee without providing advance\nnotice of the general subject matter of that action in the meeting agenda. As the Board noted, a\n\nreprimand\" is defined as \"[ a] public and formal censure or severe reproof, administered to a\nperson in fault by his superior officer or by a body to which he belongs.\" 16 Although the Board\n\ndid not label the censures as a \" resolution,\" it is clear that the Board went beyond merely\ndiscussing issues concerning\n\nand expressing opinions about her conduct. The\n\nBoard took the matter a step further by voting to authorize thirteen formal censures or\n13 Ill. Att'y Gen. Pub. Acc. Op. No. 15-005, issued August 4, 2015 (agenda did not provide advance\nnotice to public that board might take final action to approve a contract for police services); Ill. Att'y Gen. Pub. Acc.\nOp. No. 16-015, issued December 30, 2016 (agenda did not provide general subject matter of vote to amend and\napprove a settlement agreement); Ill. Att'y Gen. Pub. Acc. Op. No. 22 -006, issued May 6, 2022 (board improperly\ntook final action when it made a decision to amend school district's masking guidelines without providing advance\nnotice of that possible action in the agenda).\n14 Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 4.\n15 Illinois Community College District 525, Joliet Junior College Board of Trustees, Meeting,\nFebruary 14, 2024, Minutes 4-8.\n16 Letter from Bryan W. Kopman, KGG, LLC, to Teresa Lim, Supervising Attorney, Public Access\nBureau, Office of the Attorney General, State of Illinois (July 12, 2024), at 2 (citing Black's Law Dictionary, 2nd\n\nreprimands of\n\nand therefore took final action on a \" resolution\" under the plain\n\nmeaning of that word. This type of substantive action is distinguishable from procedural matters,\n\nsuch as motions to adjourn and motions to enter closed session, that do not constitute final action\nand therefore are not required to appear on meeting agendas.\nThe Board downplays its reprimands by asserting that the reprimands did not\n\ninvolve any formal disciplinary proceeding and were not a public statement of policy or\nproclamation of the College. As the College's governing body, the Board of Trustees represents\n\nthe interests of the College and, therefore, any public statements from the Board reflect on the\nCollege. Even if the censures were not binding on any future policy, the censures were an\n\nofficial action by the Board aimed at changing or improving the conduct of a trustee. Board\nmembers may have believed the underlying situation was a pressing matter that required a timely\n\nresponse, but OMA did not authorize the Board to act without providing advance notice to the\npublic. Accordingly, this office concludes that the Board violated section 2.02(c) of OMA by\n\nvoting on thirteen censure motions without providing the general subject matter of those\ncensures in the February 14, 2024, meeting agenda.\n\nThis office cautions the Board to ensure that its future agendas provide sufficient\nadvance notice of final actions in accordance with section 2.02(c) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nSupervising Attorney\n\nPublic Access Bureau\n81010 o 2c1 proper 202c improper univ\ncc:\n\nVia electronic mail\nMr. Brian Kopman\n\nAttorney for Joliet Junior College\nKGG, LLC\n\n111 North Ottawa Street\nJoliet, Illinois 60432\n\nbkopman@kggllc.com"}
{"id":1460,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-09-23","case_number":null,"request_numbers":["81146"],"title":"Elk Grove Park District board did not violate OMA by omitting resolution versions from agenda","filename":"81146, issued September 23, 2024.pdf","rel_path":null,"word_count":2070,"summary":"A requester alleged that the Elk Grove Park District Board violated the Open Meetings Act by failing to provide adequate notice that two versions of a resolution regarding public comment rules were being considered. The PAC determined that the agenda provided sufficient detail to identify the transaction and that the Board's actions complied with OMA requirements.","plain_summary":"A citizen complained that a Park District board meeting agenda was misleading because it didn't specify that two different versions of a public comment policy were being considered. The Attorney General's office reviewed the matter and found that the agenda was sufficiently detailed to inform the public of the topic being discussed. Therefore, no violation of the Open Meetings Act occurred.","holding":"The Elk Grove Park District Board did not violate the Open Meetings Act by failing to list multiple versions of a resolution on its agenda.","legal_question":"Whether a public body violates the Open Meetings Act by failing to explicitly list multiple versions of a resolution on an agenda when the general subject matter is properly noticed.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.02(c)","5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Elk Grove Park District","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board considered two versions of a resolution establishing rules for public comment during a public meeting.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/81146, issued September 23, 2024.pdf","sha256":"e1d54bfae74da8f0ad799a9ca528fdad0983622b2fae50a94cc852065a406ba1","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting notice","agenda","public comment","park district"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"September 23, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable John R. Walz\nPresident, Board of Commissioners\n\nElk Grove Park District\n1000 Wellington Avenue\n\nElk Grove Village, Illinois 60007\ncommissioner@elkgroveparks.\n\norg\n\nRE: OMA Request for Review – 2024 PAC 81146\nDear\n\nand Mr. Walz:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2022)).\nBACKGROUND\nOn April 23, 2024,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the Board of Commissioners ( Board) of the Elk Grove Park District\n\nDistrict) violated sections 2.02(c) and 2(e) of OMA1 at its March 28, 2024, meeting.\nSpecifically,\n\nalleged that the Board considered two different versions of a resolution\n\nestablishing public comment rules, but that the agenda did not indicate that two versions were the\nsubject of potential final action at the meeting.\n\nexplained that Board President John\n\nWalz announced that the Board was considering the adoption of a resolution establishing rules\nfor addressing public officials and referred the commissioners to their meeting packet. He\n15 ILCS 120/2.02(c) (West 2022); 5 ILCS 120/2(e) ( West 2022), as amended by Public Act 103311, effective July 28, 2023.\n\n\fThe Honorable John R. Walz\nSeptember 23, 2024\nPage 2\nasserted that President Walz then noted that there were two versions of the resolution on the\ntable, one that contained a 3-minute time limit and another that contained a 5-minute time limit.\n\ncontended:\nConfusion began at the moment that President Walz\nreferenced the existence of two versions of the resolution as the\n\npublic was not aware that two versions of the resolution were\nbeing considered and was further unclear as to which version of\n\nthe resolution had been motioned and seconded to be voted on.[2]\nBy contrast,\n\nasserted that another public body, a school district, had listed three\n\nversions of a resolution in its meeting agenda and voted on each version individually. He\n\nquestioned whether the Board should have done the same.\n\nstated that the Board's\n\nattorney subsequently \" indicate[ d] that the board could vote on a three minute or five- minute\n\nversion or neither then the board expressed that they were voting on the version of the resolution\nthat featured a five minute time limit.\" 3\nOn May 2, 2024, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide a written response to\n\nOMA allegations. This office\n\nalso requested copies of the March 28, 2024, meeting agenda, any versions of the resolution that\n\nwas considered at the meeting, and the minutes. On May 13, 2024, this office received the\nrequested materials. On May 15, 2024, this office forwarded a copy of the Board' s response to\n\nhe replied on May 22, 2024.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989).\nSection 2.02( c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nThe Public Access Bureau has previously reviewed the legislative\n\nhistory of this provision and determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\n\n2Letter from\n\nto Public Access Counselor, Office of the Attorney General ( April 23,\n\n3Letter from\n\nto Public Access Counselor, Office of the Attorney General (April 23,\n\n2024), at 2.\n\n2024), at 4.\n\n\fThe Honorable John R. Walz\nSeptember 23, 2024\nPage 3\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\n\nnew city administrator to a five-year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate section 2.02( c) of OMA).\nFurther, section 2(e) of OMA provides that \"[ f]inal action shall be preceded by a\n\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\"\n\nIn Board of Education of Springfield School\n\nDistrict No. 186 v. Attorney General, 2017 IL 120343, ¶ 64, the Illinois Supreme Court\nconsidered the scope of the public recital requirement in section 2(e) and held that \" a public\n\nrecital must take place at the open meeting before the matter is voted upon; the recital must\nannounce the nature of the matter under consideration, with sufficient detail to identify the\n\nparticular transaction or issue, but need not provide an explanation of its terms or its\nsignificance.\"\nIn its response to this office, the Board contended it met the requirements of\n\nsections 2.02(c) and 2(e), asserting that \"[ i]t was never the intent of the Park Board to take final\naction on two different Resolutions 24- 2[.]\" 4 The Board acknowledged that the meeting packet\n\ncontained two versions of the resolution but argued that the only difference between the two\nversions was one word, unlike the versions of the resolution in the school district matter cited by\n\nThe Board further contended that \"the question as to the three minute or five minute\nlimitation on a speaker' s comments was plainly and clearly resolved prior to final action\" when\n\none of the commissioners addressed the issue of the time limit before the Board's vote.5 In\nparticular, the Board asserted that before the vote, Commissioner Bob Biedke specified that the\n\nresolution under consideration was the resolution containing the 5-minute time limit.\nIn reply to that answer,\n\nhighlighted that even Board members appeared\n\nunclear as to which version was up for final action. He also argued that the one- word difference\n\nbetween the two versions of Resolution 24-02 was a substantive rather than trivial difference.\nsought clarity on the following:\nThe primary question in this matter is if a public body has\n\nmultiple versions of a resolution within its board packet at the time\nof the meeting should the public body be required to formally\n\nacknowledge the existence of multiple versions of the resolution\n\n4Letter from Thomas G. Hoffman to Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Attorney General, State of Illinois (May 13, 2024).\n5Letter from Thomas G. Hoffman to Teresa Lim, Supervising Attorney, Public Access Bureau,\nOffice of the Attorney General, State of Illinois (May 13, 2024).\n\n\fThe Honorable John R. Walz\nSeptember 23, 2024\nPage 4\nvisa-vie a separate agenda item on the official agenda and with a\nseparate and specific public recital following each separate vote.[ 6]\nThis office has reviewed the posted recording7 of the March 28, 2024, meeting\n\npertaining to the Board's consideration of agenda item 7b. As\n\ndescribed, President\n\nWalz introduced item 7b by reciting the resolution as stated in the agenda and entertaining a\n\nmotion to consider the item, which was seconded. One of the commissioners began the\ndiscussion by expressing his thoughts on the issue of time limits for public comments. President\n\nWalz noted that there were two time limits on the table, one for three minutes and one for five\nminutes. Another commissioner weighed in on the issue, and the audience appeared at that point\n\nto ask questions about the resolution that was being considered. President Walz responded to the\naudience by stating that he would ask the Board' s attorney but wanted to get through the\n\ndiscussion. Other commissioners jumped in by stating that it was one resolution but that changes\ncould be made to it. Further Board discussion ensued, and the commissioners asked the Board' s\n\nattorney questions about the resolution. A question was then asked about whether the motion\nneeded to be amended. Commissioner Biedke responded, in relevant part:\nWhat I'm saying is I think the motion can stand because I think\n\nPresident Walz misspoke when he said there was two resolutions.\nThere' s not two resolutions, and what we made the motion on and\n\nwhat was seconded is correct for the simple fact that it only says\nfive minutes in duration, there is no three. So if we would be\n\nvoting for this or turning, rejecting this, we would be going at,\nwhat it says, that was given to the public, is five minutes.[ 8]\nAfter Commissioner Biedke' s response, the Board took a roll call vote on the resolution, which\n\nfailed, and proceeded on to the next agenda item.\nAs discussed above, a public body must set forth in the agenda the main elements\nof the item on which the public body intends to take final action. A public body generally need\n\nnot include details of the agenda item, such as the specific terms of an ordinance or resolution.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 26622, issued February 27, 2018 ( agenda\n\nitem \"Ordinance Regarding Public Comments at Council Meetings\" satisfied section 2.02(c) of\n6Letter from\n\nto Public Access Counselor, Office of the Attorney General (May 22,\n\n2024), at 1.\n7Elk Grove Village, Park Board Meeting – March 28, 2024, YouTube (March 28, 2024),\nhttps://egtv6.cablecast.tv/CablecastPublicSite/ show/1284?site=1.\n8Elk Grove Village, Park Board Meeting – March 28, 2024, YouTube (March 28, 2024),\nhttps://egtv6.cablecast.tv/CablecastPublicSite/ show/1284?site=1.\n\n\fThe Honorable John R. Walz\nSeptember 23, 2024\nPage 5\nOMA). In this matter, item 7b of the agenda stated: \" b. Adoption of Resolution 24-02: A\nResolution establishing new rules to govern and facilitate the exercise of the right of any person\n\nto have the opportunity to address public officials at any meeting thereof.\" 9 This agenda item\nsufficiently described the main elements of the resolution at issue— rules for addressing public\n\nofficials at meetings. To the extent that the two versions of the resolution could be construed as\nseparate and district, the Board only voted on one version and section 2.02( c) of OMA did not\n\nrequire the agenda to identify the specific time limit on public comment in that version. While\nthe agenda could have better informed the public by noting the two different versions of the\n\nresolution that were provided in the meeting packet, a public body may discuss issues that are\nnot included in a regular meeting agenda, provided it does not take final action on them. See 5\n\nILCS 120/2.02(a) (\" The requirement of a regular meeting agenda shall not preclude the\nconsideration of items not specifically set forth in the agenda.\").\nHere, the Board took final action on only one of the two versions of the\n\nresolution. The Board recited verbatim agenda item 7b and then discussed the terms of the\nresolution.\n\nillustrated that there was some confusion regarding the two versions of the\n\nresolution that were in the meeting packet and the different time limits set forth in them.\nHowever, the Board provided adequate clarification before its vote that it was acting on the\n\nversion of Resolution 24-02 that contained the 5-minute time limit. The time limit appears to\nhave been the only difference in the two versions. Under these circumstances, the Board\n\ndescribed the nature of the matter being considered (rules for addressing public officials) with\nsufficient detail to identify the transaction at issue ( adoption of the version of rules that included\n\na 5-minute time limit). OMA did not require the Board to take a separate vote on the version\ncontaining the 3-minute time limit. Accordingly, this office concludes that the Board' s final\n\naction on Resolution 24-02 did not violate sections 2.02(c) or 2(e) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nSupervising Attorney\nPublic Access Bureau\n81146 o 202c notice proper 2e final action proper pkd\n\n9Elk Grove Park District, Agenda Item 7, New Business (March 28, 2024).\n\n\fThe Honorable John R. Walz\nSeptember 23, 2024\nPage 6\ncc:\n\nVia electronic mail\nMr. Thomas G. Hoffman\n\nAttorney for Elk Grove Park District\nLaw Office of Thomas G. Hoffman\n\n27 North Wacker Drive, Suite 410\nChicago, Illinois 60606\n\nparklaw7@gmail.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Two versions of a resolution on public comment rules","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-81146/","full_text":"September 23, 2024\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable John R. Walz\nPresident, Board of Commissioners\n\nElk Grove Park District\n1000 Wellington Avenue\n\nElk Grove Village, Illinois 60007\ncommissioner@elkgroveparks.\n\norg\n\nRE: OMA Request for Review – 2024 PAC 81146\nDear\n\nand Mr. Walz:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2022)).\nBACKGROUND\nOn April 23, 2024,\n\nsubmitted a Request for Review to the Public\n\nAccess Bureau alleging that the Board of Commissioners (Board) of the Elk Grove Park District\n\nDistrict) violated sections 2.02(c) and 2(e) of OMA1 at its March 28, 2024, meeting.\nSpecifically,\n\nalleged that the Board considered two different versions of a resolution\n\nestablishing public comment rules, but that the agenda did not indicate that two versions were the\nsubject of potential final action at the meeting.\n\nexplained that Board President John\n\nWalz announced that the Board was considering the adoption of a resolution establishing rules\nfor addressing public officials and referred the commissioners to their meeting packet. He\n15 ILCS 120/2.02(c) (West 2022); 5 ILCS 120/2(e) (West 2022), as amended by Public Act 103311, effective July 28, 2023.\n\nasserted that President Walz then noted that there were two versions of the resolution on the\ntable, one that contained a 3-minute time limit and another that contained a 5-minute time limit.\n\ncontended:\nConfusion began at the moment that President Walz\nreferenced the existence of two versions of the resolution as the\n\npublic was not aware that two versions of the resolution were\nbeing considered and was further unclear as to which version of\n\nthe resolution had been motioned and seconded to be voted on.[2]\nBy contrast,\n\nasserted that another public body, a school district, had listed three\n\nversions of a resolution in its meeting agenda and voted on each version individually. He\n\nquestioned whether the Board should have done the same.\n\nstated that the Board's\n\nattorney subsequently \" indicate[ d] that the board could vote on a three minute or five- minute\n\nversion or neither then the board expressed that they were voting on the version of the resolution\nthat featured a five minute time limit.\" 3\nOn May 2, 2024, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide a written response to\n\nOMA allegations. This office\n\nalso requested copies of the March 28, 2024, meeting agenda, any versions of the resolution that\n\nwas considered at the meeting, and the minutes. On May 13, 2024, this office received the\nrequested materials. On May 15, 2024, this office forwarded a copy of the Board's response to\n\nhe replied on May 22, 2024.\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\nSection 2.02(c) of OMA provides that \"[ a] ny agenda required under this Section\n\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nThe Public Access Bureau has previously reviewed the legislative\n\nhistory of this provision and determined that \"the General Assembly's use of the term 'general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\n\n2 Letter from\n\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5 (determining that voting to sign a\n\nnew city administrator to a five-year contract under the agenda item \"Appointment of the City\nAdministrator\" did not violate section 2.02(c) of OMA).\nFurther, section 2(e) of OMA provides that \"[ f]inal action shall be preceded by a\n\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\"\n\nIn Board of Education of Springfield School\n\nDistrict No. 186 v. Attorney General, 2017 IL 120343, ¶ 64, the Illinois Supreme Court\nconsidered the scope of the public recital requirement in section 2(e) and held that \" a public\n\nrecital must take place at the open meeting before the matter is voted upon; the recital must\nannounce the nature of the matter under consideration, with sufficient detail to identify the\n\nparticular transaction or issue, but need not provide an explanation of its terms or its\nsignificance.\"\nIn its response to this office, the Board contended it met the requirements of\n\nsections 2.02(c) and 2(e), asserting that \"[ i]t was never the intent of the Park Board to take final\naction on two different Resolutions 24- 2[.]\" 4 The Board acknowledged that the meeting packet\n\ncontained two versions of the resolution but argued that the only difference between the two\nversions was one word, unlike the versions of the resolution in the school district matter cited by\n\nThe Board further contended that \"the question as to the three minute or five minute\nlimitation on a speaker's comments was plainly and clearly resolved prior to final action\" when\n\none of the commissioners addressed the issue of the time limit before the Board's vote.5 In\nparticular, the Board asserted that before the vote, Commissioner Bob Biedke specified that the\n\nresolution under consideration was the resolution containing the 5-minute time limit.\nIn reply to that answer,\n\nhighlighted that even Board members appeared\n\nunclear as to which version was up for final action. He also argued that the one- word difference\n\nbetween the two versions of Resolution 24-02 was a substantive rather than trivial difference.\nsought clarity on the following:\nThe primary question in this matter is if a public body has\n\nmultiple versions of a resolution within its board packet at the time\nof the meeting should the public body be required to formally\n\nvisa-vie a separate agenda item on the official agenda and with a\nseparate and specific public recital following each separate vote.[ 6]\nThis office has reviewed the posted recording7 of the March 28, 2024, meeting\n\npertaining to the Board's consideration of agenda item 7b. As\n\ndescribed, President\n\nWalz introduced item 7b by reciting the resolution as stated in the agenda and entertaining a\n\nmotion to consider the item, which was seconded. One of the commissioners began the\ndiscussion by expressing his thoughts on the issue of time limits for public comments. President\n\nWalz noted that there were two time limits on the table, one for three minutes and one for five\nminutes. Another commissioner weighed in on the issue, and the audience appeared at that point\n\nto ask questions about the resolution that was being considered. President Walz responded to the\naudience by stating that he would ask the Board's attorney but wanted to get through the\n\ndiscussion. Other commissioners jumped in by stating that it was one resolution but that changes\ncould be made to it. Further Board discussion ensued, and the commissioners asked the Board's\n\nattorney questions about the resolution. A question was then asked about whether the motion\nneeded to be amended. Commissioner Biedke responded, in relevant part:\nWhat I'm saying is I think the motion can stand because I think\n\nPresident Walz misspoke when he said there was two resolutions.\nThere's not two resolutions, and what we made the motion on and\n\nwhat was seconded is correct for the simple fact that it only says\nfive minutes in duration, there is no three. So if we would be\n\nvoting for this or turning, rejecting this, we would be going at,\nwhat it says, that was given to the public, is five minutes.[ 8]\nAfter Commissioner Biedke's response, the Board took a roll call vote on the resolution, which\n\nfailed, and proceeded on to the next agenda item.\nAs discussed above, a public body must set forth in the agenda the main elements\nof the item on which the public body intends to take final action. A public body generally need\n\nnot include details of the agenda item, such as the specific terms of an ordinance or resolution.\nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 26622, issued February 27, 2018 (agenda\n\nitem \"Ordinance Regarding Public Comments at Council Meetings\" satisfied section 2.02(c) of\n6 Letter from\n\nto Public Access Counselor, Office of the Attorney General (May 22,\n\nOMA). In this matter, item 7b of the agenda stated: \" b. Adoption of Resolution 24-02: A\nResolution establishing new rules to govern and facilitate the exercise of the right of any person\n\nto have the opportunity to address public officials at any meeting thereof.\" 9 This agenda item\nsufficiently described the main elements of the resolution at issue— rules for addressing public\n\nofficials at meetings. To the extent that the two versions of the resolution could be construed as\nseparate and district, the Board only voted on one version and section 2.02(c) of OMA did not\n\nrequire the agenda to identify the specific time limit on public comment in that version. While\nthe agenda could have better informed the public by noting the two different versions of the\n\nresolution that were provided in the meeting packet, a public body may discuss issues that are\nnot included in a regular meeting agenda, provided it does not take final action on them. See 5\n\nILCS 120/2.02(a) (\" The requirement of a regular meeting agenda shall not preclude the\nconsideration of items not specifically set forth in the agenda.\").\nHere, the Board took final action on only one of the two versions of the\n\nresolution. The Board recited verbatim agenda item 7b and then discussed the terms of the\nresolution.\n\nillustrated that there was some confusion regarding the two versions of the\n\nresolution that were in the meeting packet and the different time limits set forth in them.\nHowever, the Board provided adequate clarification before its vote that it was acting on the\n\nversion of Resolution 24-02 that contained the 5-minute time limit. The time limit appears to\nhave been the only difference in the two versions. Under these circumstances, the Board\n\ndescribed the nature of the matter being considered (rules for addressing public officials) with\nsufficient detail to identify the transaction at issue (adoption of the version of rules that included\n\na 5-minute time limit). OMA did not require the Board to take a separate vote on the version\ncontaining the 3-minute time limit. Accordingly, this office concludes that the Board's final\n\naction on Resolution 24-02 did not violate sections 2.02(c) or 2(e) of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\ncc:\n\nVia electronic mail\nMr. Thomas G. Hoffman\n\nAttorney for Elk Grove Park District\nLaw Office of Thomas G. Hoffman\n\n27 North Wacker Drive, Suite 410\nChicago, Illinois 60606\n\nparklaw7@gmail.com"}
{"id":1462,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-03-26","case_number":null,"request_numbers":["81208"],"title":"Winnetka Park District Board did not violate OMA by deliberating censure outside meeting","filename":"81208, issued March 26, 2025.pdf","rel_path":null,"word_count":5473,"summary":"A requester alleged that the Winnetka Park District Board of Commissioners violated the Open Meetings Act by engaging in improper deliberations regarding the censure of a board member prior to a public meeting. The PAC determined that the matter did not require a binding opinion and closed the file.","plain_summary":"A citizen alleged that the Winnetka Park District Board violated the Open Meetings Act by secretly deliberating about censuring a board member before their April 25, 2024, meeting. The Illinois Attorney General's office investigated and found that the information provided did not show that at least three board members held a group discussion or reached a consensus about the censure before the meeting. The determination concluded that the evidence did not indicate a violation of the Open Meetings Act.","holding":"The Attorney General determined that the information provided did not indicate a violation of the Open Meetings Act.","legal_question":"Whether the Board of Commissioners violated the Open Meetings Act by deliberating on a censure resolution outside of a public meeting.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Winnetka Park District Board of Commissioners","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"closed session","subject_description":"The alleged improper deliberation of a board member's censure resolution outside of a public meeting.","ocr_status":"reocr_tesseract","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/81208, issued March 26, 2025.pdf","sha256":"12683c639c89c6c6229222d148abdae0bb0c52bef4bcf1d0320984e422fc7ec3","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","deliberation","public meeting","censure"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nMarch 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Christina Codo\nPresident\nBoard of Commissioners\nWinnetka Park District\n540 Hibbard Road\nWinnetka, Illinois 60093\nccodo@winpark.org\nRE: OMA Request for Review - 2024 PAC 81208\nDear\n\nand Ms. Codo:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nOn April 26, 2024,\nsubmitted a Request for Review\nalleging that the Board of Commissioners (Board) of the Winnetka Park District (District)\nviolated OMA in connection with the censure of a Board member. Specifically,.\nalleged that before an April 25, 2024, meeting in which the Board member was\ncensured, the Board improperly communicated and deliberated about the proposed censure\nwithout complying with the requirements of OMA.\nasserted that \"the events\nand comments at the meeting * * * demonstrate that these five members of the Board\ncoordinated their efforts in a manner that required ongoing discussions both among the Members\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 2\nand District staff and counsel.\" 1 A recording of the meeting posted on the District's website\nshows that the Board approved a one-year censure resolution, which had been prepared in\nadvance of the meeting, detailing violations of the Board's code of ethics. Several Board\nmembers made what appear to be prepared statements in support of the resolution, while another\nBoard member stated that she had no knowledge of the resolution until she saw it on the meeting\nagenda. The censured Board member also read a statement, saying she inferred she was the\nsubject of the censure resolution upon seeing it on the agenda but received no prior notice of its\ncontents and had no communications about it with other members. 2 The Board approved the\ncensure resolution by a 5-2 vote.\nOn May 9, 2024, this office sent a copy of the Request for Review to the Board\nand asked it to provide copies of all written communications and records related to the proposed\ncensure and conduct of the censured Board member which were created, sent, or received by\nBoard members and/or District staff before the April 25, 2024, meeting. This office also\nrequested a response to the allegations in the Request for Review which explained the origin of\nthe proposed censure and how it was developed and reduced to written form. In addition, this\noffice requested a description of any verbal communications among Board members concerning\nthe proposed censure, specifying when and where those discussions occurred and identifying the\nBoard members who participated, and copies of any recordings or related documentation of the\ndiscussions.\nOn May 16, 2024, the Board's attorney furnished a written response along with\ncopies of communications related to the censure and an affidavit from the Board President; the\nBoard's attorney indicated that contents of certain attorney-client communications were redacted.\nOn May 24, 2024, this office forwarded the written response to\n. On June 3,\n2024,\nsubmitted a reply and the following day he submitted an additional\nreply requesting that the District provide unredacted copies of the communications for this\noffice's confidential review. This office received unredacted copies of those records in\nconnection with a related FOIA Request for Review (2024 PAC 81740) in which.\ndisputed the District's partial denial of those records in response to his Freedom\noflnformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)) request.\nOn December 23, 2024, the Board furnished an additional affidavit from the\nBoard President in response to this office's request for additional details concerning\ncommunications among Board members related to the censure before the April 25, 2024,\n1\n\n(April 26, 2024).\n\nLetter from\n\nto Public Access Counselor, Office of the Attorney General\n\nWinnetka Park District Board of Commissioners, Regular Meeting, April 25, 2024, available at\nhttps ://winpark.diligent.community/ document/118 92/?splitscreen=true&media=true\n2\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 3\nmeeting. Additional clarification was provided on February 11, 2025, and additional records and\na confidential explanation were provided on February 13, 2025. 3\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\n(Emphasis added.)\nThe Board is comprised of seven members. Accordingly, four members of the\nBoard constitute a quorum, and a majority of the quorum is three members. Therefore, any\ngathering, whether in-person or electronically involving at least three members of the Board\nwhich is held for the purpose of discussing public business would ordinarily constitute a meeting\nof the Board that would be subject to the procedural safeguards and requirements of OMA.\nThe correspondence provided to this office mostly consisted of exchanges\nbetween the Board President and the Board's attorney and/or Park District staff. The\ncorrespondence did include copies of e-mails that were each sent within minutes of each other by\nthe Board President to individual Board members asking to discuss an e-mail sent by the\ncensured Board member to the president of the Village of Winnetka (Village) Board of Trustees.\nThe Board's response to this office stated that the Board's attorney \"prepared the original draft of\n3 With the exception of the written response to the allegations in the Request for Review, this\n\noffice is precluded from disseminating copies of the affidavits and other materials furnished by the Board. 5 ILCS\n120/3.S(g) (West 2022) (\"Records that are obtained by the Public Access Counselor from a public body for purposes\nof addressing a request for review under this Section 3.5 may not be disclosed to the public, including the requester,\nby the Public Access Counselor.\").\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 4\nthe body of the [censure] resolution and modified it upon receiving feedback from Commissioner\n[and Board President Christina] Codo.\" 4 An affidavit prepared by the Board President indicated\nthat before the April 25, 2024, meeting, she \"communicated with other Commissioners regarding\nthe Censure strictly on a one-on-one basis regardless of whether my communications were\nspoken or in writing, including electronic communications.\" 5 The affidavit further stated, among\nother things, that the Board President prepared an exhibit to the censure resolution with examples\nof alleged misconduct, including the e-mail from the censured Board member to the Village\nPresident, and hand-delivered drafts of the censure resolution to other Board members on a one­\non-one basis. The Board president averred that she \"did not confer, orally or in writing\n(including electronic communications), contemporaneously with a majority of a quorum of the\nBoard of Park Commissioners regarding the Censure[ ]\" or \"engage in an informal vote related to\nthe Censure.\" 6\nIn his reply,\nnoted that the Board's response did not describe\nthe origin and development of the proposed censure. He inferred the following chain of events:\n[T]he Board President, apparently, through a series of\nserial verbal interactions, discussed the Resolution with a majority\nof a quorum of the Board, each individual member\n\"contemporaneously interacting\" with the Board President, who\nthen repeated this \"contemporaneously interactive\" discussion with\nthe next member, likely sharing elements of prior interactions, as\nthis public matter was privately and serially deliberated.\nAt the conclusion of these \"deliberations,\" the Board\nPresident contacted Counsel, and provided \"feedback\" on the draft\nResolution, which was then modified by Counsel. It is not\nplausible to believe that this \"feedback\" was the Board President's\nalone. Rather, it almost certainly represented a \"consensus\" of\nopinions and suggestions that the Board President compiled as she\ndeliberated the Resolution with a majority of Board members_[?]\n\n4\nLetter from Adam B. Simon, Ancel Glink, to Steve Silverman, Bureau Chief, Public Access\nBureau (May 16, 2024), at 2.\n\n5\n\nCodo Aff.14, May 15, 2024.\n\n6\n\nCodo Aff.116-7, May 15, 2024.\n\nLetter fro-to Steve Silverman, Bureau Chief, Public Access Bureau\n(June 3, 2024), at 6-7.\n7\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 5\nIn response to this office's request for additional details, on December 23, 2024, the Board\nprovided another affidavit which indicated that a few days before the April 25, 2024, meeting,\nthe Board President forwarded to four other members the e-mail that the censured Board member\nsent to the Village President. The affidavit stated that the Board President held one-on-one\nphone conversations with other Board members \"related to each commissioner's own feelings\nabout the* * * E-mail[,]\" 8 which was referenced in the addendum to the censure resolution as an\nexample of alleged misconduct. The Board President stated she \"did not engage in consensus\nbuilding during these communications.\" 9 She stated that other Board members did not convey\nhow they intended to vote, and that she \"received no assurances that any other commissioner\nwould agree that conduct described in the Censure was severe enough to warrant public\ncondemnation.\"10 In response to this office's request for additional clarification, counsel for the\nBoard provided an e-mail in which the Board President indicated that she held brief individual\ndiscussions with Board members when the draft resolution was distributed. The Board president\nstated that she advised other members to do their own thinking and that she did not have advance\nknowledge of how they would vote during the meeting or what their comments would be.\nRecords provided to this office indicate that before the April 25, 2024, meeting, another Board\nmember asked to have one-on-one discussions with two additional Board members other than the\nBoard President; counsel for the Board provided details of those discussions confidentially.\nThe information that the Board provided to this office does not indicate that at\nleast three members of the Board held a group discussion related to the resolution or collectively\nreached a consensus concerning the resolution before the April 25, 2024, meeting. While the\nproximity of one-on-one discussions between Board members is unclear, the Board asserts that\nthose discussions cannot constitute a \"meeting\" under the definition of that term in OMA\nbecause they did not involve at least a majority of a quorum of the Board.\ncontends that \"it is clear that the serial one-on-one verbal communications between the Board\nPresident and a majority of Board members were, in fact, a 'contemporaneous interactive'\nmeeting, and are subject to the requirements of the OMA.\"11\nIn support of that argument,\ncites authority from other\njurisdictions that recognized a series of communications that each directly involve less than a\nquorum of the members of a public body-as ordinarily required to trigger the requirements of\nthose states' versions of OMA-could constitute a meeting under certain circumstances. In Kan.\nCodo Aff. ,i 4.C, December 19, 2024.\n\n8\n\nCodo Aff. ,i 4.C, December 19, 2024.\n\n9\n\n10\n\ncodo Aff. ,i,i 4.F, 5, December 19, 2024.\n\nLetter from\n(June 3, 2024), at 11.\n11\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 6\nOp. Att'y Gen. 98-26 (1998), at 1-2, the Kansas Attorney General provided the example of a\n\"calling tree\", in which the head of a public body proposes that each of the members telephone\neach other individually or in small groups to discuss their opinions with each other, and then\nindividually calls each of the members to survey their opinions in advance of a formal vote at the\nnext open meeting. The information provided to this office does not indicate that such\nmaneuvering occurred in this matter. The Board's President indicated that she did not seek to\nform a consensus or receive assurances to support the censure resolution, and that she was\nunaware how other Board members would vote at the April 25, 2024, meeting.\nNext,\npointed to the Washington appellate court ruling that a\nplaintiff established a prima facie case for a violation of Washington's OMA statute 12 based on\ngroup e-mails in which e-mails were circulated amongst members of a school board. Wood v.\nBattle Ground School District, 107 Wn. App. 550, 565 (Wash. Ct. App. 2001). Because those\ncircumstances \"involved a quorum of the five member Board[]\" participating in an \"active\nexchange of information and opinions in these e-mails, as opposed to the mere passive receipt of\ninformation,\" the court held there were \"genuine issues of material fact as to whether the\nmembers held a m�ail[]\" under Washington's version of OMA. Wood, 107\nWn. App. at 566. -asserts this finding also has relevance to verbal\ncommunications that are more likely to involve active exchanges of information than e-mails.\nBased on this office's review of the correspondence exchanged by members of the\nBoard that was provided to this office, none of it reflected deliberations and none of it included\ncontemporaneous interactive communications amongst three or more Board members discussing\npublic business. The Public Access Bureau has consistently determined that at least a majority\nof a quorum of the members of a public body must actively interact with each other in group e­\nmails during a short duration to trigger the requirements of OMA. Compare Ill. Att'y Gen. Req.\nRev. Ltr. 24827, issued June 8, 2015, at 2-3 (e-mail exchanges involving no more than two\nmembers of a seven-member body and e-mails sent to three or more members that did not elicit\nresponses in which a majority of a quorum discussed public business did not violate OMA), with\nIll. Att'y Req. Rev. Ltr. S-0478, issued December 27, 2021, at 7 (three members of a public body\nheld a meeting when one member sent a group e-mail seeking input from three members and two\nof the mem� all the other members within a period of 40 minutes). To the\nextent that-attempts to extrapolate the Wood court's analysis to apply to the\nBoard's verbal communications, its relevance is limited by different types of communications\nand definitions of the term \"meeting[.]\" The Wood court noted that the Washington statute\n\"simply defines 'meeting' as 'meetings at which action is taken. ' [Citation.]\" Wood, 107 Wn.\nApp. at 566. The \"general definition of 'meeting,' combined with the directive to liberally\nconstrue the\" Washington OMA led the court to \"conclude that the legislature intended a broad\ndefinition of the word 'meeting.\"' Wood, 107 Wn. App. at 562. In contrast and as discussed in\nWash. Rev. Code ch. 42.30 (West 1996).\n\n12\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 7\nmore detail below, Illinois FOIA plainly and unambiguously defines a \"meeting\" as a\n\"gathering\" of a majority of a quorum of the members of a public for the purpose of discussing\npublic business.\nalso cited a California appellate court case in which members\nof a public body were alleged to have '\"participated in a one-to-one telephonic poll initiated by\"'\nits attorney \"'for the purpose of obtaining a collective commitment or promise to approve\" a\nproperty transfer. https://plus.lexis.com/api/document/collection/cases/id/3RX6Stockton Newspapers v. Redevelopment Agency, 171 Cal. App. 3d 95, 99 (Cal.\nhttps://\nKJS0-003D-J543-00000-00?page=99&reporter=3056&cite=171%20Cal.\nApp. 1985). The trial\ncourt granted summary judgment, ruling that the discussions did not\nplus.lexis.c\n%20App.%203d%2095&context=1530671\nviolate California's version of OMA. 13 Stockton Newspapers, 171 Cal. App. 3d at 100. The\nom/api/\nappellate court reversed, holding that the allegation was \"reasonably susceptible to the\ndocument/\nconstruction that each of the defendants, * * * concurred in the purpose of arriving at a collective\ncommitment through the medium of the serially conducted telephonic poll. If a quorum of the\ncollection/\nmembers of the legislative body so intended to unite in an agreement to agree, a violation of the\ncases/\nBrown Act would be established.\" Stockton Newspapers, 171 Cal. App. 3d at 103. This is\nid/3RX6factually\nKJS0-003distinguishable from the communications reviewed by this office and the descriptions\nof one-on-one discussions held by individual Board members. There is no evidence showing\nDthat a quorum or a majority of a quorum of the Board collectively reached an agreement or\nJ543-0000\nmanifested a consensus outside of an open meeting.\n0-00?\npage=99&\nTo the extent that the Board President sought input from Board members\nreporter=3\nconcerning the conduct of the Board member who was the subject of the censure, those\n056&cite=\ncircumstances more closely align with another case\ncited. In Del Papa v.\n171%\nBoard ofRegents of University & Community College System ofNevada, 114 Nev. 388, 391\n20Cal.%\n(Nev. 1988), the chairman of a board circulated a draft of a media advisory condemning\n20App.%\ncomments by another member of the board along with a memorandum seeking feedback which\nstated that \"no release would occur without Board approval.\" After other members responded to\n203d%\nthe chairman and/or the board's media representative by telephone, the chairman decided against\n2095&cont\nissuing the advisory. Del Papa, 114 Nev. at 391. An ensuing lawsuit alleged that the\next=15306\ncommunications\nviolated Nevada's version of OMA, 14 which specifically prohibited \"the use of\n71\nelectronic communication to 'circumvent the spirit' of'' that law. Del Papa, 114 Nev. at 394-95.\nBased in part on the legislative history of that provision, the court held:\n[A] quorum of a public body using serial electronic\ncommunication to deliberate toward a decision or to make a\ndecision on any matter over which the public body has supervision,\ncontrol, jurisdiction or advisory power violates the Open Meeting\nLaw. That is not to say that in the absence of a quorum, members\nof a public body cannot privately discuss public issues or even\n13 Cal. Gov. Code§ 54950.5 (West 1984).\n\nhttps://\nplus.lexis.com/\n14\nNev. Rev. Stat. ch. 241 (West 1990).\ndocument?\npdmfid=1530671\n&pddocfullpath=\n%2Fshared%\n2Fdocument%\nOffice of the Illinois Attorney General\n2Fcases%2Furn\n%3AcontentItem\n%3A3RX6-\n\n\f-Codo\nMarch 26, 2025\nPage 8\nlobby for votes. However, if a quorum is present, or is gathered by\nserial electronic communications, the body must deliberate and\nactually vote on the matter in a public meeting. Del. Papa, 114\nNev. at 400.\nThe court went on to conclude that \"[b]ecause the Board utilized University resources, because\nthe advisory was drafted as an attempted statement of University policy, and because the Board\ntook action on the draft, we hold that the Board acted in its official capacity as a public body[,]\"\nand violated OMA by choosing \"to take a position on the advisory, yea or nay, via a non-public\nvote[.]\"\nTo be sure, a public body may violate OMA by making and implementing a final\ndecision through a series of one-on-one communications as the board apparently did in Del\nPapa, when it collectively decided not to release the advisory. Section 2(e) of OMA (5 ILCS\n120/2(e) (West 2023 Supp.)) provides that \"[n]o final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\" See also\nLawrence v. Williams, 2013 IL App (1st) 130757, � 21 (electoral board violated OMA when two\nof three members signed a written decision before a meeting and only one member attended the\nmeeting where the decision was issued). Unlike in Del Papa and Williams, no evidence provided\nto this office shows that the Board held a non-public vote or collectively manifested a consensus\nin private before voting to approve the censure in open session during the April 25, 2024,\nmeeting. It is, however, undisputed that several Board members held individual discussions\nrelated to the proposed censure before the meeting and were provided with drafts of the censure\nresolution, while two other members were unaware of that proposal until or shortly before the\nmeeting.\nThe North Carolina appellate court has considered roughly similar circumstances\nHildebran Heritage & Development\nand found no violation of that state's version of OMA. 15 https://plus.lexis.com/api/document/\nhttps://plus.lexis.com/api/document/collection/cases/id/5N4Mcollection/cases/id/5N4M-RRX1Ass'n v. Town ofHildebran, 252 N.C. App. 286, (N.C. Ct.\nApp. 2017). There, a member of a\nRRX1-F04H-F029-00000-00?\nF04H-F029-00000-00?\ncity council acknowledged holding one-on-one discussions\nwith the mayor and other members of\npage=293&reporter=3333&cite=252%20N.C.%20App.%\nthe council about amending a meeting agenda to include page=293&reporter=3333&cite=252\nthe demolition of a building, but did not\n20286&context=1530671\ncontact another member who held an adverse position. Hildebran\nHeritage & Development\n%20N.C.%20App.%\nAss'n, 252 N.C. App. at 300. The court concluded that even\nif the councilman held one-on-one\n20286&context=1530671\ndiscussions with other members to avoid meeting in public, those discussions did not violate\nOMA because \"the vote itself took place at the 26 January 2015 meeting, at which the public was\npresent, minutes were taken, and the votes of the Town Council were recorded.\" Hildebran\nHeritage & Development Ass'n, 252 N.C. App. at 293.\nCourts in other jurisdictions have held that members of public bodies do not\nillegally meet in violation of OMA by holding one-on-one discussions or gathering in small\nhttps://plus.lexis.com/\nN.C. Gen. Stat.§§ 143-318.9 et seq. (2005).\ndocument?\npdmfid=1530671&pdd\nocfullpath=%2Fshared\n%2Fdocument%\nOffice of the Illinois Attorney General\n2Fcases%2Furn%\n3AcontentItem%\n3A5N4M-RRX1-F04H-\n\n15\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 9\ngroups that do not include a sufficient number of members to constitute a meeting under the\nplain language of their state statutes' definitions of \"meeting.\" In Willems v. State, 2014 Mont.\n82, ,r,r 9-10 (Mont. 2014), the Montana Supreme Court analyzed whether members of a\ncommission that determined the boundaries of legislative districts violated OMA by holding\nindividual discussions about a proposed amendment to assign a state senator to a particular\ndistrict before publicly voting to approve a redistricting plan that included the amendment. The\nMontana statute defined \"meeting\" as \"'the convening of a quorum ofthe constituent\nmembership of a public agency * * * to hear, discuss, or act upon a matter over which the agency\nhas supervision, control, jurisdiction or advisory power.\"' 16 The court acknowledged that courts\nin certain other states have recognized a so-called \"'constructive quorum\"' rule prohibiting a\nmajority of members from engaging in one-on-one discussions about public business, but held\nthat such an interpretation was not supported by the plain language of the Montana OMA in the\nabsence of evidence that commissioners reached an agreement in private:\nEven liberally construing the statute, we determine that the\nlanguage of [OMA], is plain and unambiguous, and that the\ndefinition of \"meeting\" does not include \"serial one-on-one\ndiscussions.\" * * *. There is no evidence that a majority of\nCommissioners reached any agreement regarding the Jones\nagreement prior to the February 12 meeting, and no decisions were\nmade outside the public meeting. Willems 2014 Mont. 82, ,r 25.\nThe court went on to conclude that the one-on-one discussions were not subject to OMA\n\"because a majority ofcommission members never 'convened' or 'deliberated' as a 'public body'\noutside of a public meeting.\" Willems 2014 Mont. 82, ,r 25.\nSimilarly, the Indiana appellate court held that the University oflndiana Board of\nTrustees did not violate that state's Open Door Law 17 when the board president held back-to­\nback gatherings of two groups of trustees, each comprising less than a quorum of the board, to\nupdate them on an investigation and discuss alleged misconduct by basketball coach Bobby\nKnight. https://plus.lexis.com/api/document/collection/cases/id/4K3D-51S0-TVTWDillman v. Trustees ofIndiana University, 848 N.E.2d 348, 350 (Ind. Ct. App. 2006).\nB1WT-00000-00?page=351&reporter=4912&cite=848%20N.E.2d%\nThe board president testified that '\"he deliberately gathered with fewer than a quorum ofthe\nTrustees20348&context=1530671\n\"to exclude any impropriety with respect to the Open Door Act.\"' Dillman, 848 N.E.2d\nat 350. The court declined to find a violation despite characterizing the board's conduct as \"in\ndirect contravention to the public policy behind the Open Door Law. While a more open process\nin matters of governance such as this might be preferable, the legislative branch of our state\ngovernment has spoken. The law does not prohibit this conduct.\" Dillman, 848 N.E.2d at 352.\nThe court observed that \"the legislature has specifically defined 'meeting' under the Open Door\nMont. Code Ann. § 2-3-202 (West 2012).\n\n16\n17\n\nhttps://\nInd. Code § 5-14-1.5-1 (2002).\nplus.lexis.com/\ndocument?\npdmfid=1530671\n&pddocfullpath=\n%2Fshared% Office of the Illinois Attorney General\n2Fdocument%\n2Fcases%2Furn\n\n\fThe Honorable Christina Codo\nMarch 26,2025\nPage 10\nLaw as 'a gathering of a majority of the governing body ....' Ind. Code§ 5-14-1.5-2(c). Thus,\nwithout a majority present,no meeting occurs for purposes of the Open Door Law.\" Dillman,\n848 N.E.2d at 351.\nLikewise,in Slagle v. Ross, 125 So. 3d 117,126 (Ala. 2012),the Alabama\nSupreme Court held that three groups of school board members each comprising less than a\nquorum of the school board did not violate Alabama's version of OMA 18 by holding successive\ngatherings with the superintendent to discuss goals for the school district because the statute\n\"clearly defines the term 'meeting' to include a gathering of a majority of the members [of] a\ngovernmental body. In the instances challenged in this case,no such gatherings of the Board\noccurred so as to constitute a meeting[.]\" The court emphasized that it was \"not free to take up\n[the plaintiff's] invitation to provide a 'liberal construction' of the term 'meeting' as defined in the\nstatute because the language of the Act defining that term is plain and unambiguous.\" Slagle,\n125 So. 3d at 125. The court acknowledged that courts in other jurisdictions had construed the\nterm \"meeting\" more broadly,but stated that \"in cases in which courts have applied a plain­\nmeaning analysis to their open-meetings statutes,they have arrived at the same conclusion we\narrive at in this case.\" Slagle, 125 So. 3d at 125.\nBecause no Illinois reviewing court has construed the definition of \"meeting\"\nmore expansively,fundamental principles of statutory construction compel the same conclusion\nin this matter. In interpreting a statute,the primary objective \"is to ascertain and give effect to\nthe intent of the General Assembly.\" Southern Illinoisan v. Illinois Department of Public Health,\n218 Ill. 2d 390,415 (2006). \"[T]he surest and most reliable indicator of'' legislative intent \"is the\nstatutory language itself,given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343,,r 24. Where\nthe language of a statute is clear and unambiguous,a reviewing body \"may not depart from the\nplain language by reading into the statute exceptions,limitations,or conditions that the\nlegislature did not express.\" Hayashi v. Illinois Department of Financial & Professional\nRegulation, 2014 IL 116023,,r 16.\nThe definition of \"meeting in section 1.02 of OMA requires a \"gathering, * * * of\na majority of a quorum of the members of a public body held for the purpose of discussing public\nbusiness[.]\" (Emphasis added.) A \"gathering\" is defined as a \"coming together of people in a\ngroup (as for social,religious,or political purposes)[.]\" Merriam-Webster Online Dictionary,\nhttps://www.merriam-webster.com/dictionary/gathering. A one-on-one verbal discussion or an\ne-mail or text message exchange between two members of public body is a coming together of\ntwo members in a group-not at least three members,as is required for a gathering of majority of\n\nhttps://plus.lexis.com/\nAla. Code§ 36-25A-l et seq. (West 2008).\ndocument?\npdmfid=1530671&pdd\nocfullpath=%2Fshared\n%2Fdocument%\n2Fcases%2Furn%\n3AcontentItem%Office of the Illinois Attorney General\n3A55WM-0W61-F048D06F-00000-00&pdco\n\n18\n\n\fThe Honorable Christina Codo\nMarch 26,2025\nPage 11\na quorum of the seven-member Board to trigger the requirements of OMA. 19\nasserts that \"[t]o determine these serial communications\nshould not be considered a 'meeting' under OMA,completely eviscerates the OMA.\" 20 As\ndiscussed above,even if a series of one-on-one conversations does not constitute a \"meeting\",a\npublic body still may violate OMA by making a final decision through a series of one-on-one\ncommunications. It is apparent that Board members held one-on-one discussions concerning the\ncensure before the April 25,2024,meeting. Most notably,the Board President received\nfeedback on an e-mail that the censured Board member sent to the Board president and\ndistributed a draft of the censure resolution to some-but not all-of the other members of the\nBoard before meeting. But the Board President expressly denied obtaining commitments or\notherwise stitching together a consensus of Board members to support a censure and there is no\nindication that Board members otherwise collectively made and implemented a decision before\nthe meeting where the Board publicly approved the censure resolution as required by OMA.\nSuch communications simply do not constitute gatherings of a majority of a quorum of the Board\nor final action that is prohibited by OMA. This office cannot disregard the plain language of the\nstatute by reading into the definition of \"meeting\" an exception for one-on-one discussions when\ntwo members does not constitute at least a majority of a quorum of a public body. If the General\nAssembly wishes to prohibit an individual member of a public body from holding individual\none-on-one conversations that cumulatively add up to a majority of a quorum of the members of\na public body,it would have to amend the definition of \"meeting\" in OMA to account for that\ncircumstance. Accordingly,this office concludes that the Board did not violate OMA in\nconnection with its April 25,2024,meeting.\nDespite that conclusion,the manner in which the censure resolution was\nand others who submitted\naddressed during the meeting understandably led\nsimilar complaints to infer that a violation of OMA could have occurred. This office makes no\nfindings as to the intentions of Board members, and notes that it is not uncommon for members\nof public bodies to individually consider proposals and crystallize their positions on matters to be\nvoted on before a meeting commences. See https://plus.lexis.com/api/document/collection/\nCity of Elkhorn v. City of Omaha, 272 Neb. 867,881\ncases/id/4MTT-1YF0-0039-44D6-00000-00?\n(Neb. 2007) (OMA \"does not require policymakers to remain ignorant of the issues they must\npage=881&reporter=3270&cite=272%20Neb.%\n20867&context=1530671\n19\ncited, does not\nThis office's determination in Binding Opinion 23-003, which\nsuggest otherwise. The Attorney General concluded that \"[t]he requirements of OMA apply not only to those\ngatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of\ncollecting information.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. But the gathering at\nissue in that opinion involved an in-person gathering of three members of a library board rather than a series of one­\non-one discussions. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n20Letter\n\n(June 3, 2024), at 12.\n\nfrom\n\nto Steve Silverman, Bureau Chief, Public Access Bureau\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Christina Codo\nMarch 26, 2025\nPage 12\ndecide until the moment the public is invited to comment on a proposed policy. The public\nwould be ill served by restricting policymakers from reflecting and preparing to consider\nproposals, or from privately suggesting alternatives.\"). Still, when members of a public body\nread prepared statements and then vote in alignment to support a resolution without those\nmembers holding back-and-forth discussions amongst themselves in open session, the\ncircumstances may lead to the perception that the public body acted in a manner that\ncircumvented the requirements of OMA or were inconsistent with the spirit of the Act. Board\nmembers should, therefore, be mindful of the requirements of the public policy behind OMA that\nfavors the open discussion of public business before considering whether to engage in private\ncommunications that could be construed as inconsistent with the requirements or at least the\npurpose of OMA. See 5 ILCS 140/1 (West 2022) (\"It is the public policy of this State that public\nbodies exist to aid in the conduct of the people's business and that the people have a right to be\ninformed as to the conduct of their business. In order that the people shall be informed, the\nGeneral Assembly finds and declares that it is the intent of this Act to ensure that the actions of\npublic bodies be taken openly and that their deliberations be conducted openly.\").\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at (312) 814-6756 or steven.silverman@ilag.gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access and Opinions Division\n81208 o 2a meeting proper pkd\n\ncc:\n\nVia electronic mail\nMr. Adam B. Simon, Partner\nAncel Glink\n175 East Hawthorn Parkway, Suite 145\nVernon Hills, Illinois 60061\nasimon@ancelglink.com\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nMarch 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Christina Codo\nPresident\nBoard of Commissioners\nWinnetka Park District\n540 Hibbard Road\nWinnetka, Illinois 60093\nccodo@winpark.org\nRE: OMA Request for Review - 2024 PAC 81208\nDear\n\nand Ms. Codo:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\nOn April 26, 2024,\nsubmitted a Request for Review\nalleging that the Board of Commissioners (Board) of the Winnetka Park District (District)\nviolated OMA in connection with the censure of a Board member. Specifically,.\nalleged that before an April 25, 2024, meeting in which the Board member was\ncensured, the Board improperly communicated and deliberated about the proposed censure\nwithout complying with the requirements of OMA.\nasserted that \"the events\nand comments at the meeting * * * demonstrate that these five members of the Board\ncoordinated their efforts in a manner that required ongoing discussions both among the Members\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nand District staff and counsel.\" 1 A recording of the meeting posted on the District's website\nshows that the Board approved a one-year censure resolution, which had been prepared in\nadvance of the meeting, detailing violations of the Board's code of ethics. Several Board\nmembers made what appear to be prepared statements in support of the resolution, while another\nBoard member stated that she had no knowledge of the resolution until she saw it on the meeting\nagenda. The censured Board member also read a statement, saying she inferred she was the\nsubject of the censure resolution upon seeing it on the agenda but received no prior notice of its\ncontents and had no communications about it with other members. 2 The Board approved the\ncensure resolution by a 5-2 vote.\nOn May 9, 2024, this office sent a copy of the Request for Review to the Board\nand asked it to provide copies of all written communications and records related to the proposed\ncensure and conduct of the censured Board member which were created, sent, or received by\nBoard members and/or District staff before the April 25, 2024, meeting. This office also\nrequested a response to the allegations in the Request for Review which explained the origin of\nthe proposed censure and how it was developed and reduced to written form. In addition, this\noffice requested a description of any verbal communications among Board members concerning\nthe proposed censure, specifying when and where those discussions occurred and identifying the\nBoard members who participated, and copies of any recordings or related documentation of the\ndiscussions.\nOn May 16, 2024, the Board's attorney furnished a written response along with\ncopies of communications related to the censure and an affidavit from the Board President; the\nBoard's attorney indicated that contents of certain attorney-client communications were redacted.\nOn May 24, 2024, this office forwarded the written response to\n. On June 3,\n2024,\nsubmitted a reply and the following day he submitted an additional\nreply requesting that the District provide unredacted copies of the communications for this\noffice's confidential review. This office received unredacted copies of those records in\nconnection with a related FOIA Request for Review (2024 PAC 81740) in which.\ndisputed the District's partial denial of those records in response to his Freedom\noflnformation Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)) request.\nOn December 23, 2024, the Board furnished an additional affidavit from the\nBoard President in response to this office's request for additional details concerning\ncommunications among Board members related to the censure before the April 25, 2024,\n1\n\n(April 26, 2024).\n\nLetter from\n\nto Public Access Counselor, Office of the Attorney General\n\nWinnetka Park District Board of Commissioners, Regular Meeting, April 25, 2024, available at\n\nmeeting. Additional clarification was provided on February 11, 2025, and additional records and\na confidential explanation were provided on February 13, 2025. 3\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\n(Emphasis added.)\nThe Board is comprised of seven members. Accordingly, four members of the\nBoard constitute a quorum, and a majority of the quorum is three members. Therefore, any\ngathering, whether in-person or electronically involving at least three members of the Board\nwhich is held for the purpose of discussing public business would ordinarily constitute a meeting\nof the Board that would be subject to the procedural safeguards and requirements of OMA.\nThe correspondence provided to this office mostly consisted of exchanges\nbetween the Board President and the Board's attorney and/or Park District staff. The\ncorrespondence did include copies of e-mails that were each sent within minutes of each other by\nthe Board President to individual Board members asking to discuss an e-mail sent by the\ncensured Board member to the president of the Village of Winnetka (Village) Board of Trustees.\nThe Board's response to this office stated that the Board's attorney \"prepared the original draft of\n3 With the exception of the written response to the allegations in the Request for Review, this\n\noffice is precluded from disseminating copies of the affidavits and other materials furnished by the Board. 5 ILCS\n120/3.S(g) (West 2022) (\"Records that are obtained by the Public Access Counselor from a public body for purposes\nof addressing a request for review under this Section 3.5 may not be disclosed to the public, including the requester,\n\nthe body of the [censure] resolution and modified it upon receiving feedback from Commissioner\n[and Board President Christina] Codo.\" 4 An affidavit prepared by the Board President indicated\nthat before the April 25, 2024, meeting, she \"communicated with other Commissioners regarding\nthe Censure strictly on a one-on-one basis regardless of whether my communications were\nspoken or in writing, including electronic communications.\" 5 The affidavit further stated, among\nother things, that the Board President prepared an exhibit to the censure resolution with examples\nof alleged misconduct, including the e-mail from the censured Board member to the Village\nPresident, and hand-delivered drafts of the censure resolution to other Board members on a one­\non-one basis. The Board president averred that she \"did not confer, orally or in writing\n(including electronic communications), contemporaneously with a majority of a quorum of the\nBoard of Park Commissioners regarding the Censure[ ]\" or \"engage in an informal vote related to\nthe Censure.\" 6\nIn his reply,\nnoted that the Board's response did not describe\nthe origin and development of the proposed censure. He inferred the following chain of events:\n[T]he Board President, apparently, through a series of\nserial verbal interactions, discussed the Resolution with a majority\nof a quorum of the Board, each individual member\n\"contemporaneously interacting\" with the Board President, who\nthen repeated this \"contemporaneously interactive\" discussion with\nthe next member, likely sharing elements of prior interactions, as\nthis public matter was privately and serially deliberated.\nAt the conclusion of these \"deliberations,\" the Board\nPresident contacted Counsel, and provided \"feedback\" on the draft\nResolution, which was then modified by Counsel. It is not\nplausible to believe that this \"feedback\" was the Board President's\nalone. Rather, it almost certainly represented a \"consensus\" of\nopinions and suggestions that the Board President compiled as she\ndeliberated the Resolution with a majority of Board members_[?]\n\n4\nLetter from Adam B. Simon, Ancel Glink, to Steve Silverman, Bureau Chief, Public Access\nBureau (May 16, 2024), at 2.\n\n5\n\nCodo Aff.14, May 15, 2024.\n\n6\n\nIn response to this office's request for additional details, on December 23, 2024, the Board\nprovided another affidavit which indicated that a few days before the April 25, 2024, meeting,\nthe Board President forwarded to four other members the e-mail that the censured Board member\nsent to the Village President. The affidavit stated that the Board President held one-on-one\nphone conversations with other Board members \"related to each commissioner's own feelings\nabout the* * * E-mail[,]\" 8 which was referenced in the addendum to the censure resolution as an\nexample of alleged misconduct. The Board President stated she \"did not engage in consensus\nbuilding during these communications.\" 9 She stated that other Board members did not convey\nhow they intended to vote, and that she \"received no assurances that any other commissioner\nwould agree that conduct described in the Censure was severe enough to warrant public\ncondemnation.\"10 In response to this office's request for additional clarification, counsel for the\nBoard provided an e-mail in which the Board President indicated that she held brief individual\ndiscussions with Board members when the draft resolution was distributed. The Board president\nstated that she advised other members to do their own thinking and that she did not have advance\nknowledge of how they would vote during the meeting or what their comments would be.\nRecords provided to this office indicate that before the April 25, 2024, meeting, another Board\nmember asked to have one-on-one discussions with two additional Board members other than the\nBoard President; counsel for the Board provided details of those discussions confidentially.\nThe information that the Board provided to this office does not indicate that at\nleast three members of the Board held a group discussion related to the resolution or collectively\nreached a consensus concerning the resolution before the April 25, 2024, meeting. While the\nproximity of one-on-one discussions between Board members is unclear, the Board asserts that\nthose discussions cannot constitute a \"meeting\" under the definition of that term in OMA\nbecause they did not involve at least a majority of a quorum of the Board.\ncontends that \"it is clear that the serial one-on-one verbal communications between the Board\nPresident and a majority of Board members were, in fact, a 'contemporaneous interactive'\nmeeting, and are subject to the requirements of the OMA.\"11\nIn support of that argument,\ncites authority from other\njurisdictions that recognized a series of communications that each directly involve less than a\nquorum of the members of a public body-as ordinarily required to trigger the requirements of\nthose states' versions of OMA-could constitute a meeting under certain circumstances. In Kan.\nCodo Aff.,i 4.C, December 19, 2024.\n\n8\n\nCodo Aff.,i 4.C, December 19, 2024.\n\n9\n\n10\n\ncodo Aff.,i,i 4.F, 5, December 19, 2024.\n\nOp. Att'y Gen. 98-26 (1998), at 1-2, the Kansas Attorney General provided the example of a\n\"calling tree\", in which the head of a public body proposes that each of the members telephone\neach other individually or in small groups to discuss their opinions with each other, and then\nindividually calls each of the members to survey their opinions in advance of a formal vote at the\nnext open meeting. The information provided to this office does not indicate that such\nmaneuvering occurred in this matter. The Board's President indicated that she did not seek to\nform a consensus or receive assurances to support the censure resolution, and that she was\nunaware how other Board members would vote at the April 25, 2024, meeting.\nNext,\npointed to the Washington appellate court ruling that a\nplaintiff established a prima facie case for a violation of Washington's OMA statute 12 based on\ngroup e-mails in which e-mails were circulated amongst members of a school board. Wood v.\nBattle Ground School District, 107 Wn. App. 550, 565 (Wash. Ct. App. 2001). Because those\ncircumstances \"involved a quorum of the five member Board[]\" participating in an \"active\nexchange of information and opinions in these e-mails, as opposed to the mere passive receipt of\ninformation,\" the court held there were \"genuine issues of material fact as to whether the\nmembers held a m�ail[]\" under Washington's version of OMA. Wood, 107\nWn. App. at 566. -asserts this finding also has relevance to verbal\ncommunications that are more likely to involve active exchanges of information than e-mails.\nBased on this office's review of the correspondence exchanged by members of the\nBoard that was provided to this office, none of it reflected deliberations and none of it included\ncontemporaneous interactive communications amongst three or more Board members discussing\npublic business. The Public Access Bureau has consistently determined that at least a majority\nof a quorum of the members of a public body must actively interact with each other in group e­\nmails during a short duration to trigger the requirements of OMA. Compare Ill. Att'y Gen. Req.\nRev. Ltr. 24827, issued June 8, 2015, at 2-3 (e-mail exchanges involving no more than two\nmembers of a seven-member body and e-mails sent to three or more members that did not elicit\nresponses in which a majority of a quorum discussed public business did not violate OMA), with\nIll. Att'y Req. Rev. Ltr. S-0478, issued December 27, 2021, at 7 (three members of a public body\nheld a meeting when one member sent a group e-mail seeking input from three members and two\nof the mem� all the other members within a period of 40 minutes). To the\nextent that-attempts to extrapolate the Wood court's analysis to apply to the\nBoard's verbal communications, its relevance is limited by different types of communications\nand definitions of the term \"meeting[.]\" The Wood court noted that the Washington statute\n\"simply defines 'meeting' as 'meetings at which action is taken. ' [Citation.]\" Wood, 107 Wn.\nApp. at 566. The \"general definition of 'meeting,' combined with the directive to liberally\nconstrue the\" Washington OMA led the court to \"conclude that the legislature intended a broad\ndefinition of the word 'meeting.\"' Wood, 107 Wn. App. at 562. In contrast and as discussed in\n\nmore detail below, Illinois FOIA plainly and unambiguously defines a \"meeting\" as a\n\"gathering\" of a majority of a quorum of the members of a public for the purpose of discussing\npublic business.\nalso cited a California appellate court case in which members\nof a public body were alleged to have '\"participated in a one-to-one telephonic poll initiated by\"'\nits attorney \"'for the purpose of obtaining a collective commitment or promise to approve\" a\nproperty transfer. https://plus.lexis.com/api/document/collection/cases/id/3RX6Stockton Newspapers v. Redevelopment Agency, 171 Cal. App. 3d 95, 99 (Cal.\nhttps://\nKJS0-003D-J543-00000-00?page=99&reporter=3056&cite=171%20Cal.\nApp. 1985). The trial\ncourt granted summary judgment, ruling that the discussions did not\nplus.lexis.c\n%20App.%203d%2095&context=1530671\nviolate California's version of OMA. 13 Stockton Newspapers, 171 Cal. App. 3d at 100. The\nom/api/\nappellate court reversed, holding that the allegation was \"reasonably susceptible to the\ndocument/\nconstruction that each of the defendants, * * * concurred in the purpose of arriving at a collective\ncommitment through the medium of the serially conducted telephonic poll. If a quorum of the\ncollection/\nmembers of the legislative body so intended to unite in an agreement to agree, a violation of the\ncases/\nBrown Act would be established.\" Stockton Newspapers, 171 Cal. App. 3d at 103. This is\nid/3RX6factually\nKJS0-003distinguishable from the communications reviewed by this office and the descriptions\nof one-on-one discussions held by individual Board members. There is no evidence showing\nDthat a quorum or a majority of a quorum of the Board collectively reached an agreement or\nJ543-0000\nmanifested a consensus outside of an open meeting.\n0-00?\npage=99&\nTo the extent that the Board President sought input from Board members\nreporter=3\nconcerning the conduct of the Board member who was the subject of the censure, those\n056&cite=\ncircumstances more closely align with another case\ncited. In Del Papa v.\n171%\nBoard ofRegents of University & Community College System ofNevada, 114 Nev. 388, 391\n20 Cal.%\n(Nev. 1988), the chairman of a board circulated a draft of a media advisory condemning\n20 App.%\ncomments by another member of the board along with a memorandum seeking feedback which\nstated that \"no release would occur without Board approval.\" After other members responded to\n203d%\nthe chairman and/or the board's media representative by telephone, the chairman decided against\n2095&cont\nissuing the advisory. Del Papa, 114 Nev. at 391. An ensuing lawsuit alleged that the\next=15306\ncommunications\nviolated Nevada's version of OMA, 14 which specifically prohibited \"the use of\n71\nelectronic communication to 'circumvent the spirit' of'' that law. Del Papa, 114 Nev. at 394-95.\nBased in part on the legislative history of that provision, the court held:\n[A] quorum of a public body using serial electronic\ncommunication to deliberate toward a decision or to make a\ndecision on any matter over which the public body has supervision,\ncontrol, jurisdiction or advisory power violates the Open Meeting\nLaw. That is not to say that in the absence of a quorum, members\nof a public body cannot privately discuss public issues or even\n13 Cal. Gov. Code§ 54950.5 (West 1984).\n\nhttps://\nplus.lexis.com/\n14\nNev. Rev. Stat. ch. 241 (West 1990).\ndocument?\npdmfid=1530671\n&pddocfullpath=\n%2Fshared%\n\nlobby for votes. However, if a quorum is present, or is gathered by\nserial electronic communications, the body must deliberate and\nactually vote on the matter in a public meeting. Del. Papa, 114\nNev. at 400.\nThe court went on to conclude that \"[b]ecause the Board utilized University resources, because\nthe advisory was drafted as an attempted statement of University policy, and because the Board\ntook action on the draft, we hold that the Board acted in its official capacity as a public body[,]\"\nand violated OMA by choosing \"to take a position on the advisory, yea or nay, via a non-public\nvote[.]\"\nTo be sure, a public body may violate OMA by making and implementing a final\ndecision through a series of one-on-one communications as the board apparently did in Del\nPapa, when it collectively decided not to release the advisory. Section 2(e) of OMA (5 ILCS\n120/2(e) (West 2023 Supp.)) provides that \"[n]o final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\" See also\nLawrence v. Williams, 2013 IL App (1st) 130757, � 21 (electoral board violated OMA when two\nof three members signed a written decision before a meeting and only one member attended the\nmeeting where the decision was issued). Unlike in Del Papa and Williams, no evidence provided\nto this office shows that the Board held a non-public vote or collectively manifested a consensus\nin private before voting to approve the censure in open session during the April 25, 2024,\nmeeting. It is, however, undisputed that several Board members held individual discussions\nrelated to the proposed censure before the meeting and were provided with drafts of the censure\nresolution, while two other members were unaware of that proposal until or shortly before the\nmeeting.\nThe North Carolina appellate court has considered roughly similar circumstances\nHildebran Heritage & Development\nand found no violation of that state's version of OMA. 15 https://plus.lexis.com/api/document/\nhttps://plus.lexis.com/api/document/collection/cases/id/5N4Mcollection/cases/id/5N4M-RRX1Ass'n v. Town ofHildebran, 252 N.C. App. 286, (N.C. Ct.\nApp. 2017). There, a member of a\nRRX1-F04H-F029-00000-00?\nF04H-F029-00000-00?\ncity council acknowledged holding one-on-one discussions\nwith the mayor and other members of\npage=293&reporter=3333&cite=252%20N.C.%20App.%\nthe council about amending a meeting agenda to include page=293&reporter=3333&cite=252\nthe demolition of a building, but did not\n20286&context=1530671\ncontact another member who held an adverse position. Hildebran\nHeritage & Development\n%20N.C.%20App.%\nAss'n, 252 N.C. App. at 300. The court concluded that even\nif the councilman held one-on-one\n20286&context=1530671\ndiscussions with other members to avoid meeting in public, those discussions did not violate\nOMA because \"the vote itself took place at the 26 January 2015 meeting, at which the public was\npresent, minutes were taken, and the votes of the Town Council were recorded.\" Hildebran\nHeritage & Development Ass'n, 252 N.C. App. at 293.\nCourts in other jurisdictions have held that members of public bodies do not\nillegally meet in violation of OMA by holding one-on-one discussions or gathering in small\nhttps://plus.lexis.com/\nN.C. Gen. Stat.§§ 143-318.9 et seq. (2005).\ndocument?\npdmfid=1530671&pdd\nocfullpath=%2Fshared\n%2Fdocument%\n\ngroups that do not include a sufficient number of members to constitute a meeting under the\nplain language of their state statutes' definitions of \"meeting.\" In Willems v. State, 2014 Mont.\n82,,r,r 9-10 (Mont. 2014), the Montana Supreme Court analyzed whether members of a\ncommission that determined the boundaries of legislative districts violated OMA by holding\nindividual discussions about a proposed amendment to assign a state senator to a particular\ndistrict before publicly voting to approve a redistricting plan that included the amendment. The\nMontana statute defined \"meeting\" as \"'the convening of a quorum ofthe constituent\nmembership of a public agency * * * to hear, discuss, or act upon a matter over which the agency\nhas supervision, control, jurisdiction or advisory power.\"' 16 The court acknowledged that courts\nin certain other states have recognized a so-called \"'constructive quorum\"' rule prohibiting a\nmajority of members from engaging in one-on-one discussions about public business, but held\nthat such an interpretation was not supported by the plain language of the Montana OMA in the\nabsence of evidence that commissioners reached an agreement in private:\nEven liberally construing the statute, we determine that the\nlanguage of [OMA], is plain and unambiguous, and that the\ndefinition of \"meeting\" does not include \"serial one-on-one\ndiscussions.\" * * *. There is no evidence that a majority of\nCommissioners reached any agreement regarding the Jones\nagreement prior to the February 12 meeting, and no decisions were\nmade outside the public meeting. Willems 2014 Mont. 82,,r 25.\nThe court went on to conclude that the one-on-one discussions were not subject to OMA\n\"because a majority ofcommission members never 'convened' or 'deliberated' as a 'public body'\noutside of a public meeting.\" Willems 2014 Mont. 82,,r 25.\nSimilarly, the Indiana appellate court held that the University oflndiana Board of\nTrustees did not violate that state's Open Door Law 17 when the board president held back-to­\nback gatherings of two groups of trustees, each comprising less than a quorum of the board, to\nupdate them on an investigation and discuss alleged misconduct by basketball coach Bobby\nKnight. https://plus.lexis.com/api/document/collection/cases/id/4K3D-51S0-TVTWDillman v. Trustees ofIndiana University, 848 N.E.2d 348, 350 (Ind. Ct. App. 2006).\nB1WT-00000-00?page=351&reporter=4912&cite=848%20N.E.2d%\nThe board president testified that '\"he deliberately gathered with fewer than a quorum ofthe\nTrustees20348&context=1530671\n\"to exclude any impropriety with respect to the Open Door Act.\"' Dillman, 848 N.E.2d\nat 350. The court declined to find a violation despite characterizing the board's conduct as \"in\ndirect contravention to the public policy behind the Open Door Law. While a more open process\nin matters of governance such as this might be preferable, the legislative branch of our state\ngovernment has spoken. The law does not prohibit this conduct.\" Dillman, 848 N.E.2d at 352.\nThe court observed that \"the legislature has specifically defined 'meeting' under the Open Door\nMont. Code Ann. § 2-3-202 (West 2012).\n\n16\n17\n\nhttps://\nInd. Code § 5-14-1.5-1 (2002).\nplus.lexis.com/\ndocument?\n\nLaw as 'a gathering of a majority of the governing body....' Ind. Code§ 5-14-1.5-2(c). Thus,\nwithout a majority present,no meeting occurs for purposes of the Open Door Law.\" Dillman,\n848 N.E.2d at 351.\nLikewise,in Slagle v. Ross, 125 So. 3d 117,126 (Ala. 2012),the Alabama\nSupreme Court held that three groups of school board members each comprising less than a\nquorum of the school board did not violate Alabama's version of OMA 18 by holding successive\ngatherings with the superintendent to discuss goals for the school district because the statute\n\"clearly defines the term 'meeting' to include a gathering of a majority of the members [of] a\ngovernmental body. In the instances challenged in this case,no such gatherings of the Board\noccurred so as to constitute a meeting[.]\" The court emphasized that it was \"not free to take up\n[the plaintiff's] invitation to provide a 'liberal construction' of the term 'meeting' as defined in the\nstatute because the language of the Act defining that term is plain and unambiguous.\" Slagle,\n125 So. 3d at 125. The court acknowledged that courts in other jurisdictions had construed the\nterm \"meeting\" more broadly,but stated that \"in cases in which courts have applied a plain­\nmeaning analysis to their open-meetings statutes,they have arrived at the same conclusion we\narrive at in this case.\" Slagle, 125 So. 3d at 125.\nBecause no Illinois reviewing court has construed the definition of \"meeting\"\nmore expansively,fundamental principles of statutory construction compel the same conclusion\nin this matter. In interpreting a statute,the primary objective \"is to ascertain and give effect to\nthe intent of the General Assembly.\" Southern Illinoisan v. Illinois Department of Public Health,\n218 Ill. 2d 390,415 (2006). \"[T]he surest and most reliable indicator of'' legislative intent \"is the\nstatutory language itself,given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343,,r 24. Where\nthe language of a statute is clear and unambiguous,a reviewing body \"may not depart from the\nplain language by reading into the statute exceptions,limitations,or conditions that the\nlegislature did not express.\" Hayashi v. Illinois Department of Financial & Professional\nRegulation, 2014 IL 116023,,r 16.\nThe definition of \"meeting in section 1.02 of OMA requires a \"gathering, * * * of\na majority of a quorum of the members of a public body held for the purpose of discussing public\nbusiness[.]\" (Emphasis added.) A \"gathering\" is defined as a \"coming together of people in a\ngroup (as for social,religious,or political purposes)[.]\" Merriam-Webster Online Dictionary,\nhttps://www.merriam-webster.com/dictionary/gathering. A one-on-one verbal discussion or an\ne-mail or text message exchange between two members of public body is a coming together of\ntwo members in a group-not at least three members,as is required for a gathering of majority of\n\nhttps://plus.lexis.com/\nAla. Code§ 36-25A-l et seq. (West 2008).\ndocument?\npdmfid=1530671&pdd\nocfullpath=%2Fshared\n\na quorum of the seven-member Board to trigger the requirements of OMA. 19\nasserts that \"[t]o determine these serial communications\nshould not be considered a 'meeting' under OMA,completely eviscerates the OMA.\" 20 As\ndiscussed above,even if a series of one-on-one conversations does not constitute a \"meeting\",a\npublic body still may violate OMA by making a final decision through a series of one-on-one\ncommunications. It is apparent that Board members held one-on-one discussions concerning the\ncensure before the April 25,2024,meeting. Most notably,the Board President received\nfeedback on an e-mail that the censured Board member sent to the Board president and\ndistributed a draft of the censure resolution to some-but not all-of the other members of the\nBoard before meeting. But the Board President expressly denied obtaining commitments or\notherwise stitching together a consensus of Board members to support a censure and there is no\nindication that Board members otherwise collectively made and implemented a decision before\nthe meeting where the Board publicly approved the censure resolution as required by OMA.\nSuch communications simply do not constitute gatherings of a majority of a quorum of the Board\nor final action that is prohibited by OMA. This office cannot disregard the plain language of the\nstatute by reading into the definition of \"meeting\" an exception for one-on-one discussions when\ntwo members does not constitute at least a majority of a quorum of a public body. If the General\nAssembly wishes to prohibit an individual member of a public body from holding individual\none-on-one conversations that cumulatively add up to a majority of a quorum of the members of\na public body,it would have to amend the definition of \"meeting\" in OMA to account for that\ncircumstance. Accordingly,this office concludes that the Board did not violate OMA in\nconnection with its April 25,2024,meeting.\nDespite that conclusion,the manner in which the censure resolution was\nand others who submitted\naddressed during the meeting understandably led\nsimilar complaints to infer that a violation of OMA could have occurred. This office makes no\nfindings as to the intentions of Board members, and notes that it is not uncommon for members\nof public bodies to individually consider proposals and crystallize their positions on matters to be\nvoted on before a meeting commences. See https://plus.lexis.com/api/document/collection/\nCity of Elkhorn v. City of Omaha, 272 Neb. 867,881\ncases/id/4MTT-1YF0-0039-44D6-00000-00?\n(Neb. 2007) (OMA \"does not require policymakers to remain ignorant of the issues they must\npage=881&reporter=3270&cite=272%20Neb.%\n20867&context=1530671\n19\ncited, does not\nThis office's determination in Binding Opinion 23-003, which\nsuggest otherwise. The Attorney General concluded that \"[t]he requirements of OMA apply not only to those\ngatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of\ncollecting information.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. But the gathering at\nissue in that opinion involved an in-person gathering of three members of a library board rather than a series of one­\non-one discussions. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n\ndecide until the moment the public is invited to comment on a proposed policy. The public\nwould be ill served by restricting policymakers from reflecting and preparing to consider\nproposals, or from privately suggesting alternatives.\"). Still, when members of a public body\nread prepared statements and then vote in alignment to support a resolution without those\nmembers holding back-and-forth discussions amongst themselves in open session, the\ncircumstances may lead to the perception that the public body acted in a manner that\ncircumvented the requirements of OMA or were inconsistent with the spirit of the Act. Board\nmembers should, therefore, be mindful of the requirements of the public policy behind OMA that\nfavors the open discussion of public business before considering whether to engage in private\ncommunications that could be construed as inconsistent with the requirements or at least the\npurpose of OMA. See 5 ILCS 140/1 (West 2022) (\"It is the public policy of this State that public\nbodies exist to aid in the conduct of the people's business and that the people have a right to be\ninformed as to the conduct of their business. In order that the people shall be informed, the\nGeneral Assembly finds and declares that it is the intent of this Act to ensure that the actions of\npublic bodies be taken openly and that their deliberations be conducted openly.\").\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at (312) 814-6756 or steven.silverman@ilag.gov.\nVery truly yours,\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access and Opinions Division\n81208 o 2a meeting proper pkd\n\ncc:\n\nVia electronic mail\nMr. Adam B. Simon, Partner\nAncel Glink\n175 East Hawthorn Parkway, Suite 145\nVernon Hills, Illinois 60061\nasimon@ancelglink.com\n\nOffice of the Illinois Attorney General","plain_summary_pre_resummarize":null,"card_headline":"Board deliberation on a censure resolution outside a public meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-81208/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL.\n\nMarch 26, 2025\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Christina Codo\nPresident\n\nBoard of Commissioners\nWinnetka Park District\n\n540 Hibbard Road\n\nWinnetka, Illinois 60093\nccodo@winpark.org\n\nRE: OMA Request for Review — 2024 PAC 81208\n\nDear Po and Ms. Codo:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2022)).\n\nOn April 26, 2024, BEE submitted a Request for Review\n\nalleging that the Board of Commissioners (Board) of the Winnetka Park District (District)\nviolated OMA in connection with the censure of a Board member. Specifically, am\n\nalleged that before an April 25, 2024, meeting in which the Board member was\ncensured, the Board improperly communicated and deliberated about the proposed censure\nwithout complying with the requirements of OMA. asserted that \"the events\nand comments at the meeting * * * demonstrate that these five members of the Board\ncoordinated their efforts in a manner that required ongoing discussions both among the Members\n\n500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C\nSpringfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Minois 62903\n(217) 782-109@ + Fax: (217) 782-7046 (312) 814-3000 + Fax: (312) 814-3806 (618) 529-640@ + Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilitics can reach us by using the 7-1-1 relay service.\n\nwww lilinoisAttorneyGeneral.gov\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 2\n\nand District staff and counsel.\"! A recording of the meeting posted on the District's website\nshows that the Board approved a one-year censure resolution, which had been prepared in\nadvance of the meeting, detailing violations of the Board's code of ethics. Several Board\nmembers made what appear to be prepared statements in support of the resolution, while another\nBoard member stated that she had no knowledge of the resolution until she saw it on the meeting\nagenda. The censured Board member also read a statement, saying she inferred she was the\nsubject of the censure resolution upon seeing it on the agenda but received no prior notice of its\ncontents and had no communications about it with other members.” The Board approved the\ncensure resolution by a 5-2 vote.\n\nOn May 9, 2024, this office sent a copy of the Request for Review to the Board\nand asked it to provide copies of all written communications and records related to the proposed\ncensure and conduct of the censured Board member which were created, sent, or received by\nBoard members and/or District staff before the April 25, 2024, meeting. This office also\nrequested a response to the allegations in the Request for Review which explained the origin of\nthe proposed censure and how it was developed and reduced to written form. In addition, this\noffice requested a description of any verbal communications among Board members concerning\nthe proposed censure, specifying when and where those discussions occurred and identifying the\nBoard members who participated, and copies of any recordings or related documentation of the\ndiscussions.\n\nOn May 16, 2024, the Board's attorney furnished a written response along with\ncopies of communications related to the censure and an affidavit from the Board President; the\nBoard's attorney indicated that contents of certain attorney-client communications were redacted.\nOn May 24, 2024, this office forwarded the written response a. 8 =—Seti<‘SCOCT On June 3,\n2021 submitted a reply and the following day he submitted an additional\nreply requesting that the District provide unredacted copies of the communications for this\noffice's confidential review. This office received unredacted copies of those records in\nconnection with a related FOIA Request for Review (2024 PAC 81740) in which\n\ndisputed the District's partial denial of those records in response to his Freedom\nof Information Act (FOIA) (5 ILCS 140/1 et seg. (West 2022)) request.\n\nOn December 23, 2024, the Board furnished an additional affidavit from the\nBoard President in response to this office's request for additional details concerning\ncommunications among Board members related to the censure before the April 25, 2024,\n\n'Letter fom i 0 Public Access Counselor, Office of the Attorney General\n\n(April 26, 2024).\n\n?Winnetka Park District Board of Commissioners, Regular Meeting, April 25, 2024, available at\nhttps://winpark.diligent.community/document/11892/?splitscreen=true&media=true\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 3\n\nmeeting. Additional clarification was provided on February 11, 2025, and additional records and\na confidential explanation were provided on February 13, 2025.7\n\nDETERMINATION\n\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\n\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2022)):\n\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[. ]\n(Emphasis added.)\n\nThe Board is comprised of seven members. Accordingly, four members of the\nBoard constitute a quorum, and a majority of the quorum is three members. Therefore, any\ngathering, whether in-person or electronically involving at least three members of the Board\nwhich is held for the purpose of discussing public business would ordinarily constitute a meeting\nof the Board that would be subject to the procedural safeguards and requirements of OMA.\n\nThe correspondence provided to this office mostly consisted of exchanges\nbetween the Board President and the Board's attorney and/or Park District staff. The\ncorrespondence did include copies of e-mails that were each sent within minutes of each other by\nthe Board President to individual Board members asking to discuss an e-mail sent by the\ncensured Board member to the president of the Village of Winnetka (Village) Board of Trustees.\nThe Board's response to this office stated that the Board's attorney \"prepared the original draft of\n\n3With the exception of the written response to the allegations in the Request for Review, this\noffice is precluded from disseminating copies of the affidavits and other materials furnished by the Board. 5 TLCS\n120/3.5(g) (West 2022) (\"Records that are obtained by the Public Access Counselor from a public body for purposes\nof addressing a request for review under this Section 3.5 may not be disclosed to the public, including the requester,\nby the Public Access Counselor.\").\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 4\n\nthe body of the [censure] resolution and modified it upon receiving feedback from Commissioner\n[and Board President Christina] Codo.\"* An affidavit prepared by the Board President indicated\nthat before the April 25, 2024, meeting, she \"communicated with other Commissioners regarding\nthe Censure strictly on a one-on-one basis regardless of whether my communications were\nspoken or in writing, including electronic communications.\"* The affidavit further stated, among\nother things, that the Board President prepared an exhibit to the censure resolution with examples\nof alleged misconduct, including the e-mail from the censured Board member to the Village\nPresident, and hand-delivered drafts of the censure resolution to other Board members on a one-\non-one basis. The Board president averred that she \"did not confer, orally or in writing\n(including electronic communications), contemporaneously with a majority of a quorum of the\nBoard of Park Commissioners regarding the Censure[ |\" or \"engage in an informal vote related to\nthe Censure.\"°\n\nIn his reply noted that the Board's response did not describe\n\nthe origin and development of the proposed censure. He inferred the following chain of events:\n\n[T]he Board President, apparently, through a series of\n\nserial verbal interactions, discussed the Resolution with a majority\nof a quorum of the Board, each individual member\n\"contemporaneously interacting” with the Board President, who\nthen repeated this \"contemporaneously interactive\" discussion with\nthe next member, likely sharing elements of prior interactions, as\nthis public matter was privately and serially deliberated.\n\nAt the conclusion of these \"deliberations,\" the Board\nPresident contacted Counsel, and provided \"feedback\" on the draft\nResolution, which was then modified by Counsel. It is not\nplausible to believe that this \"feedback\" was the Board President’s\nalone. Rather, it almost certainly represented a \"consensus\" of\nopinions and suggestions that the Board President compiled as she\ndeliberated the Resolution with a majority of Board members.!7!\n\n‘Letter from Adam B. Simon, Ancel Glink, to Steve Silverman, Bureau Chief, Public Access\nBureau (May 16, 2024), at 2.\n\n5Codo Aff. 7 4, May 15, 2024.\n’Codo Aff. {9 6-7, May 15, 2024.\n\n7Letter fro to Steve Silverman, Bureau Chief, Public Access Bureau\n(June 3, 2024), at 6-7.\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 5\n\nIn response to this office's request for additional details, on December 23, 2024, the Board\nprovided another affidavit which indicated that a few days before the April 25, 2024, meeting,\nthe Board President forwarded to four other members the e-mail that the censured Board member\nsent to the Village President. The affidavit stated that the Board President held one-on-one\nphone conversations with other Board members \"related to each commissioner's own feelings\nabout the * * * E-maill[,]\"® which was referenced in the addendum to the censure resolution as an\nexample of alleged misconduct. The Board President stated she \"did not engage in consensus\nbuilding during these communications.\"’ She stated that other Board members did not convey\nhow they intended to vote, and that she \"received no assurances that any other commissioner\nwould agree that conduct described in the Censure was severe enough to warrant public\ncondemnation.\"!° In response to this office's request for additional clarification, counsel for the\nBoard provided an e-mail in which the Board President indicated that she held brief individual\ndiscussions with Board members when the draft resolution was distributed. The Board president\nstated that she advised other members to do their own thinking and that she did not have advance\nknowledge of how they would vote during the meeting or what their comments would be.\nRecords provided to this office indicate that before the April 25, 2024, meeting, another Board\nmember asked to have one-on-one discussions with two additional Board members other than the\nBoard President; counsel for the Board provided details of those discussions confidentially.\n\nThe information that the Board provided to this office does not indicate that at\nleast three members of the Board held a group discussion related to the resolution or collectively\nreached a consensus concerning the resolution before the April 25, 2024, meeting. While the\nproximity of one-on-one discussions between Board members is unclear, the Board asserts that\nthose discussions cannot constitute a \"meeting\" under the definition of that term in OMA\nbecause they did not involve at least a majority of a quorum of the Board.\ncontends that \"it is clear that the serial one-on-one verbal communications between the Board\nPresident and a majority of Board members were, in fact, a 'contemporaneous interactive'\nmeeting, and are subject to the requirements of the OMA.\"\"!\n\nIn support of that argument i cites authority from other\n\njurisdictions that recognized a series of communications that each directly involve less than a\nquorum of the members of a public body—as ordinarily required to trigger the requirements of\nthose states’ versions of OMA—could constitute a meeting under certain circumstances. In Kan.\n\n8Codo Aff. { 4.C, December 19, 2024.\n°Codo Aff. { 4.C, December 19, 2024.\n\n'0Codo Aff. 9 4.F, 5, December 19, 2024.\n\n\"Letter on i... Steve Silverman, Bureau Chief, Public Access Bureau\n\n(June 3, 2024), at 11.\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 6\n\nOp. Att'y Gen. 98-26 (1998), at 1-2, the Kansas Attorney General provided the example of a\n\"calling tree\", in which the head of a public body proposes that each of the members telephone\neach other individually or in small groups to discuss their opinions with each other, and then\nindividually calls each of the members to survey their opinions in advance of a formal vote at the\nnext open meeting. The information provided to this office does not indicate that such\nmaneuvering occurred in this matter. The Board's President indicated that she did not seek to\nform a consensus or receive assurances to support the censure resolution, and that she was\nunaware how other Board members would vote at the April 25, 2024, meeting.\n\nNext, pointed to the Washington appellate court ruling that a\nplaintiff established a prima facie case for a violation of Washington's OMA statute!” based on\n\ngroup e-mails in which e-mails were circulated amongst members of a school board. Wood v.\nBattle Ground School District, 107 Wn. App. 550, 565 (Wash. Ct. App. 2001). Because those\ncircumstances \"involved a quorum of the five member Board[ ]\" participating in an \"active\nexchange of information and opinions in these e-mails, as opposed to the mere passive receipt of\ninformation,\" the court held there were \"genuine issues of material fact as to whether the\nmembers held a meeting * * * by e-mail[ ]\" under Washington's version of OMA. Wood, 107\nWn. App. at 566. asserts this finding also has relevance to verbal\ncommunications that are more likely to involve active exchanges of information than e-mails.\n\nBased on this office's review of the correspondence exchanged by members of the\nBoard that was provided to this office, none of it reflected deliberations and none of it included\ncontemporaneous interactive communications amongst three or more Board members discussing\npublic business. The Public Access Bureau has consistently determined that at least a majority\nof a quorum of the members of a public body must actively interact with each other in group e-\nmails during a short duration to trigger the requirements of OMA. Compare Ill. Att'y Gen. Req.\nRev. Ltr. 24827, issued June 8, 2015, at 2-3 (e-mail exchanges involving no more than two\nmembers of a seven-member body and e-mails sent to three or more members that did not elicit\nresponses in which a majority of a quorum discussed public business did not violate OMA), with\nIll. Att'y Req. Rev. Ltr. S-0478, issued December 27, 2021, at 7 (three members of a public body\nheld a meeting when one member sent a group e-mail seeking input from three members and two\nof the members sent replies to all the other members within a period of 40 minutes). To the\nextent i __—_— attempts to extrapolate the Wood court's analysis to apply to the\nBoard's verbal communications, its relevance is limited by different types of communications\nand definitions of the term \"meeting[.]\" The Wood court noted that the Washington statute\n\"simply defines 'meeting' as 'meetings at which action is taken.’ [Citation.]\" Wood, 107 Wn.\nApp. at 566. The \"general definition of 'meeting,' combined with the directive to liberally\nconstrue the\" Washington OMA led the court to \"conclude that the legislature intended a broad\ndefinition of the word 'meeting.™ Wood, 107 Wn. App. at 562. In contrast and as discussed in\n\n\"Wash. Rev. Code ch. 42.30 (West 1996).\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 7\n\nmore detail below, Illinois FOIA plainly and unambiguously defines a \"meeting\" as a\n\"gathering\" of a majority of a quorum of the members of a public for the purpose of discussing\npublic business.\n\nalso cited a California appellate court case in which members\nof a public body were alleged to have \"participated in a one-to-one telephonic poll initiated by\"\nits attorney \"for the purpose of obtaining a collective commitment or promise to approve\" a\nproperty transfer. Stockton Newspapers v. Redevelopment Agency, 171 Cal. App. 3d 95, 99 (Cal.\nApp. 1985). The trial court granted summary judgment, ruling that the discussions did not\nviolate California's version of OMA.!? Stockton Newspapers, 171 Cal. App. 3d at 100. The\nappellate court reversed, holding that the allegation was \"reasonably susceptible to the\nconstruction that each of the defendants, * * * concurred in the purpose of arriving at a collective\ncommitment through the medium of the serially conducted telephonic poll. Ifa quorum of the\nmembers of the legislative body so intended to unite in an agreement to agree, a violation of the\nBrown Act would be established.\" Stockton Newspapers, 171 Cal. App. 3d at 103. This is\nfactually distinguishable from the communications reviewed by this office and the descriptions\nof one-on-one discussions held by individual Board members. There is no evidence showing\nthat a quorum or a majority of a quorum of the Board collectively reached an agreement or\nmanifested a consensus outside of an open meeting.\n\nTo the extent that the Board President sought input from Board members\nconcerning the conduct of the Board member who was the subject of the censure, those\ncircumstances more closely align with another case cited. In Del Papa v.\nBoard of Regents of University & Community College System of Nevada, 114 Nev. 388, 391\n(Nev. 1988), the chairman of a board circulated a draft of a media advisory condemning\ncomments by another member of the board along with a memorandum seeking feedback which\nstated that \"no release would occur without Board approval.\" After other members responded to\nthe chairman and/or the board's media representative by telephone, the chairman decided against\nissuing the advisory. Del Papa, 114 Nev. at 391. An ensuing lawsuit alleged that the\ncommunications violated Nevada's version of OMA,!4 which specifically prohibited \"the use of\nelectronic communication to ‘circumvent the spirit’ of\" that law. De/ Papa, 114 Nev. at 394-95.\nBased in part on the legislative history of that provision, the court held:\n\n[A] quorum of a public body using serial electronic\ncommunication to deliberate toward a decision or to make a\ndecision on any matter over which the public body has supervision,\ncontrol, jurisdiction or advisory power violates the Open Meeting\nLaw. That is not to say that in the absence of a quorum, members\nof a public body cannot privately discuss public issues or even\n\nCal. Gov. Code § 54950.5 (West 1984).\n\n'4Nev. Rev. Stat. ch. 241 (West 1990).\n\nOffice of the Illinois Attorney General\n\nCodo\nMarch 26, 2025\nPage 8\n\nlobby for votes. However, if a quorum is present, or is gathered by\nserial electronic communications, the body must deliberate and\nactually vote on the matter in a public meeting. Del. Papa, 114\nNev. at 400.\n\nThe court went on to conclude that \"[b]ecause the Board utilized University resources, because\nthe advisory was drafted as an attempted statement of University policy, and because the Board\ntook action on the draft, we hold that the Board acted in its official capacity as a public body[, |\"\nand violated OMA by choosing \"to take a position on the advisory, yea or nay, via a non-public\nvote[.]\"\n\nTo be sure, a public body may violate OMA by making and implementing a final\ndecision through a series of one-on-one communications as the board apparently did in De/\nPapa, when it collectively decided not to release the advisory. Section 2(e) of OMA (5 ILCS\n120/2(e) (West 2023 Supp.)) provides that \"[n]o final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\" See also\nLawrence v. Williams, 2013 IL App (1st) 130757, 4 21 (electoral board violated OMA when two\nof three members signed a written decision before a meeting and only one member attended the\nmeeting where the decision was issued). Unlike in Del Papa and Williams, no evidence provided\nto this office shows that the Board held a non-public vote or collectively manifested a consensus\nin private before voting to approve the censure in open session during the April 25, 2024,\nmeeting. It is, however, undisputed that several Board members held individual discussions\nrelated to the proposed censure before the meeting and were provided with drafts of the censure\nresolution, while two other members were unaware of that proposal until or shortly before the\nmeeting.\n\nThe North Carolina appellate court has considered roughly similar circumstances\nand found no violation of that state's version of OMA.!° Hildebran Heritage & Development\nAss'n v. Town of Hildebran, 252 N.C. App. 286, (N.C. Ct. App. 2017). There, a member of a\ncity council acknowledged holding one-on-one discussions with the mayor and other members of\nthe council about amending a meeting agenda to include the demolition of a building, but did not\ncontact another member who held an adverse position. Hildebran Heritage & Development\nAss'n, 252 N.C. App. at 300. The court concluded that even if the councilman held one-on-one\ndiscussions with other members to avoid meeting in public, those discussions did not violate\nOMA because \"the vote itself took place at the 26 January 2015 meeting, at which the public was\npresent, minutes were taken, and the votes of the Town Council were recorded.\" Hildebran\nHeritage & Development Ass'n, 252 N.C. App. at 293.\n\nCourts in other jurisdictions have held that members of public bodies do not\nillegally meet in violation of OMA by holding one-on-one discussions or gathering in small\n\nINC. Gen. Stat. §§ 143-318.9 et seq. (2005).\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 9\n\ngroups that do not include a sufficient number of members to constitute a meeting under the\nplain language of their state statutes’ definitions of \"meeting.\" In Willems v. State, 2014 Mont.\n82, J§| 9-10 (Mont. 2014), the Montana Supreme Court analyzed whether members of a\ncommission that determined the boundaries of legislative districts violated OMA by holding\nindividual discussions about a proposed amendment to assign a state senator to a particular\ndistrict before publicly voting to approve a redistricting plan that included the amendment. The\nMontana statute defined \"meeting\" as \"'the convening of a quorum of the constituent\nmembership of a public agency * * * to hear, discuss, or act upon a matter over which the agency\nhas supervision, control, jurisdiction or advisory power.\"\"!® The court acknowledged that courts\nin certain other states have recognized a so-called \"'constructive quorum\" rule prohibiting a\nmajority of members from engaging in one-on-one discussions about public business, but held\nthat such an interpretation was not supported by the plain language of the Montana OMA in the\nabsence of evidence that commissioners reached an agreement in private:\n\nEven liberally construing the statute, we determine that the\nlanguage of [OMA], is plain and unambiguous, and that the\ndefinition of \"meeting\" does not include \"serial one-on-one\ndiscussions.\" * * *, There is no evidence that a majority of\nCommissioners reached any agreement regarding the Jones\nagreement prior to the February 12 meeting, and no decisions were\nmade outside the public meeting. Willems 2014 Mont. 82, 9 25.\n\nThe court went on to conclude that the one-on-one discussions were not subject to OMA\n\"because a majority of commission members never 'convened' or 'deliberated' as a ‘public body'\noutside of a public meeting.\" Willems 2014 Mont. 82, 9 25.\n\nSimilarly, the Indiana appellate court held that the University of Indiana Board of\nTrustees did not violate that state's Open Door Law!’ when the board president held back-to-\nback gatherings of two groups of trustees, each comprising less than a quorum of the board, to\nupdate them on an investigation and discuss alleged misconduct by basketball coach Bobby\nKnight. Dillman v. Trustees of Indiana University, 848 N.E.2d 348, 350 (Ind. Ct. App. 2006).\nThe board president testified that \"he deliberately gathered with fewer than a quorum of the\nTrustees \"to exclude any impropriety with respect to the Open Door Act.\" Dillman, 848 N.E.2d\nat 350. The court declined to find a violation despite characterizing the board's conduct as \"in\ndirect contravention to the public policy behind the Open Door Law. While a more open process\nin matters of governance such as this might be preferable, the legislative branch of our state\ngovernment has spoken. The law does not prohibit this conduct.\" Dillman, 848 N.E.2d at 352.\nThe court observed that \"the legislature has specifically defined 'meeting' under the Open Door\n\n'6Mont. Code Ann. § 2-3-202 (West 2012).\n\n'7 Ind. Code § 5-14-1.5-1 (2002).\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 10\n\nLaw as 'a gathering of a majority of the governing body....' Ind. Code § 5-14-1.5-2(c). Thus,\nwithout a majority present, no meeting occurs for purposes of the Open Door Law.\" Dillman,\n848 N.E.2d at 351.\n\nLikewise, in Slagle v. Ross, 125 So. 3d 117, 126 (Ala. 2012), the Alabama\nSupreme Court held that three groups of school board members each comprising less than a\nquorum of the school board did not violate Alabama's version of OMA!® by holding successive\ngatherings with the superintendent to discuss goals for the school district because the statute\n\"clearly defines the term 'meeting' to include a gathering of a majority of the members [of] a\ngovernmental body. In the instances challenged in this case, no such gatherings of the Board\noccurred so as to constitute a meeting[.]\" The court emphasized that it was \"not free to take up\n[the plaintiff's] invitation to provide a 'liberal construction’ of the term 'meeting' as defined in the\nstatute because the language of the Act defining that term is plain and unambiguous.\" Slagle,\n125 So. 3d at 125. The court acknowledged that courts in other jurisdictions had construed the\nterm \"meeting\" more broadly, but stated that \"in cases in which courts have applied a plain-\nmeaning analysis to their open-meetings statutes, they have arrived at the same conclusion we\nairive at in this case.\" Slagle, 125 So. 3d at 125.\n\nBecause no Illinois reviewing court has construed the definition of \"meeting\"\nmore expansively, fundamental principles of statutory construction compel the same conclusion\nin this matter. In interpreting a statute, the primary objective \"is to ascertain and give effect to\nthe intent of the General Assembly.\" Southern Illinoisan v. Illinois Department of Public Health,\n218 Ill. 2d 390, 415 (2006). \"[T]he surest and most reliable indicator of\" legislative intent \"is the\nstatutory language itself, given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, § 24. Where\nthe language of a statute is clear and unambiguous, a reviewing body \"may not depart from the\nplain language by reading into the statute exceptions, limitations, or conditions that the\nlegislature did not express.\" Hayashi v. Illinois Department of Financial & Professional\nRegulation, 2014 IL 116023, 4 16.\n\nThe definition of \"meeting in section 1.02 of OMA requires a \"gathering, * * * of\na majority of a quorum of the members of a public body held for the purpose of discussing public\nbusiness[.]\" (Emphasis added.) A \"gathering\" is defined as a \"coming together of people ina\ngroup (as for social, religious, or political purposes)[.]\" Merriam-Webster Online Dictionary,\nhttps://www.merriam-webster.com/dictionary/gathering. A one-on-one verbal discussion or an\ne-mail or text message exchange between two members of public body is a coming together of\ntwo members in a group—not at least three members, as is required for a gathering of majority of\n\n'SAla. Code § 36-25A-1 et seg. (West 2008).\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 11\n\na quorum of the seven-member Board to trigger the requirements of OMA.!”\n\nasserts that \"[t]o determine these serial communications\nshould not be considered a ‘meeting’ under OMA, completely eviscerates the OMA.\"7\" As\ndiscussed above, even if a series of one-on-one conversations does not constitute a \"meeting\", a\npublic body still may violate OMA by making a final decision through a series of one-on-one\ncommunications. It is apparent that Board members held one-on-one discussions concerning the\ncensure before the April 25, 2024, meeting. Most notably, the Board President received\nfeedback on an e-mail that the censured Board member sent to the Board president and\ndistributed a draft of the censure resolution to some—but not all—of the other members of the\nBoard before meeting. But the Board President expressly denied obtaining commitments or\notherwise stitching together a consensus of Board members to support a censure and there is no\nindication that Board members otherwise collectively made and implemented a decision before\nthe meeting where the Board publicly approved the censure resolution as required by OMA.\nSuch communications simply do not constitute gatherings of a majority of a quorum of the Board\nor final action that is prohibited by OMA. This office cannot disregard the plain language of the\nstatute by reading into the definition of \"meeting\" an exception for one-on-one discussions when\ntwo members does not constitute at least a majority of a quorum of a public body. If the General\nAssembly wishes to prohibit an individual member of a public body from holding individual\none-on-one conversations that cumulatively add up to a majority of a quorum of the members of\na public body, it would have to amend the definition of \"meeting\" in OMA to account for that\ncircumstance. Accordingly, this office concludes that the Board did not violate OMA in\nconnection with its April 25, 2024, meeting.\n\nDespite that conclusion, the manner in which the censure resolution was\naddressed during the meeting understandably ce = =—— and others who submitted\nsimilar complaints to infer that a violation of OMA could have occurred. This office makes no\nfindings as to the intentions of Board members, and notes that it is not uncommon for members\nof public bodies to individually consider proposals and crystallize their positions on matters to be\nvoted on before a meeting commences. See City of Elkhorn v. City of Omaha, 272 Neb. 867, 881\n(Neb. 2007) (OMA \"does not require policymakers to remain ignorant of the issues they must\n\nThis office's determination in Binding Opinion 23-003, which cited, does not\nsuggest otherwise. The Attorney General concluded that \"[t]he requirements of OMA apply not only to those\ngatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of\ncollecting information.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. But the gathering at\nissue in that opinion involved an in-person gathering of three members of a library board rather than a series of one-\non-one discussions. III. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n\nOL etter from i 0 Steve Silverman, Bureau Chief, Public Access Bureau\n\n(June 3, 2024), at 12.\n\nOffice of the Illinois Attorney General\n\nThe Honorable Christina Codo\nMarch 26, 2025\nPage 12\n\ndecide until the moment the public is invited to comment on a proposed policy. The public\nwould be ill served by restricting policymakers from reflecting and preparing to consider\nproposals, or from privately suggesting alternatives.\"). Still, when members of a public body\nread prepared statements and then vote in alignment to support a resolution without those\nmembers holding back-and-forth discussions amongst themselves in open session, the\ncircumstances may lead to the perception that the public body acted in a manner that\ncircumvented the requirements of OMA or were inconsistent with the spirit of the Act. Board\nmembers should, therefore, be mindful of the requirements of the public policy behind OMA that\nfavors the open discussion of public business before considering whether to engage in private\ncommunications that could be construed as inconsistent with the requirements or at least the\npurpose of OMA. See 5 ILCS 140/1 (West 2022) (\"It is the public policy of this State that public\nbodies exist to aid in the conduct of the people's business and that the people have a right to be\ninformed as to the conduct of their business. In order that the people shall be informed, the\nGeneral Assembly finds and declares that it is the intent of this Act to ensure that the actions of\npublic bodies be taken openly and that their deliberations be conducted openly.\").\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\n\ncontact me at (312) 814-6756 or steven.silverman@ilag.gov.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access and Opinions Division\n\n81208 0 2a meeting proper pkd\n\ncc: Via electronic mail\nMr. Adam B. Simon, Partner\nAncel Glink\n175 East Hawthorn Parkway, Suite 145\nVernon Hills, Illinois 60061\nasimon@ancelglink.com\n\nOffice of the Illinois Attorney General"}
{"id":1463,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-11-04","case_number":null,"request_numbers":["81492"],"title":"IDOT community advisory group for Route 120 study not a public body subject to OMA","filename":"81492, issued November 4, 2024.pdf","rel_path":null,"word_count":3345,"summary":"The Midwest Sustainability Group alleged that a Community Advisory Group (CAG) established by the Illinois Department of Transportation (IDOT) violated the Open Meetings Act by failing to follow its requirements for a May 9, 2024, meeting. The PAC determined that the CAG is not a 'public body' subject to the Open Meetings Act.","plain_summary":"A community group complained that a committee formed by the Illinois Department of Transportation (IDOT) held a meeting without following open meeting laws. The Attorney General's office investigated and concluded that this specific committee does not qualify as a 'public body' under the law, meaning it is not required to follow those rules. Therefore, no violation occurred.","holding":"The PAC determined that the Community Advisory Group is not a public body subject to the requirements of the Open Meetings Act.","legal_question":"Whether the Community Advisory Group established by IDOT for the Illinois Route 120 PEL Study constitutes a 'public body' subject to the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Illinois Department of Transportation (IDOT)","requesting_party":"Ms. Barbara Klipp (Midwest Sustainability Group)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester alleged that a Community Advisory Group meeting should have been conducted in accordance with the Open Meetings Act.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-public-body/advisory-bodies/81492, issued November 4, 2024.pdf","sha256":"db7ba79c8087e8152858f3a36dfc23f3d7c19c1dfe7da22e0cdc08fc6378e1e8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Open Meetings Act","public body","IDOT","advisory committee"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"November 4 ,2024\n\nVia electronic mail\n\nMs. Barbara Klipp\nExecutive Director\nMidwest Sustainability Group\n[street address redacted for site publication -- see original PDF]\nbarbara@midwestsustainability.org\nVia electronic mail\nMr. Steven Schilke\nBureau Chief of Programming/ Region One\nIllinois Department of Transportation\n\n201 West Center Court\nSchaumburg, Illinois 60196\nsteven. schilke@illinois. gov\n\nFOIA Request for Review: 2024 PAC 81492\nDear Ms. Klipp and Mr. Schilke:\nThis determination letter is issued by the Attorney General pursuant to section\n\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) ( West 2022)). For the reasons\ndiscussed below, this office concludes that the Community Advisory Group (CAG) established\nby the Illinois Department of Transportation (IDOT) for the Illinois Route 120 Planning and\nEnvironmental Linkages (PEL) Study (Study) did not violate OMA by holding a meeting on\nMay 9, 2024, without adhering to the requirements of the Act .\n\nOn May 20 , 2024, Ms. Barbara Klipp submitted a Request for Review to the\nPublic Access Bureau on behalf of the Midwest Sustainability Group alleging that the CAG\nimproperly held its first meeting on May 9, 2024, without adhering to the requirements of OMA .\nMs. Klipp, a CAG member, state d : \"This is a governmentally run study that impacts a lot of\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 2\nnearby residents, and we are hoping the public will be allowed to participate and have access to\nthe meetings.\" 1\nOn May 21 , 2024, the Public Access Bureau sent a copy of the Request for\nReview to IDOT. The Public Access Bureau also sent IDOT a letter requesting, for this office' s\n\nconfidential review, copies of any notices, agendas, minutes, and recordings of the May 9, 2024,\nmeeting, as well as any records describing or reflecting the formation and role/functioning of the\nCAG. The inquiry letter also asked IDOT to address whether the elements courts have used to\ndetermine whether entities constituted advisory bodies or subsidiary bodies applied to the CAG.\nOn May 31, 2024, IDOT furnished a written answer and approximately 300 pages of related\nrecords for this office' s review . On June 11, 2024, Ms. Klipp submitted a reply to that answer.\n\nANALYSIS\nSection 1 of OMA (5 ILCS 120/1 (West 2022)) states that \"it is the intent of this\nAct to ensure that the actions of public bodies be taken openly and that their deliberations be\n\nconducted openly.\"\nSection 1.02 of the Open Meetings Act2 defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\n\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\n\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nIn analyzing whether an entity constitutes an advisory body of a public body,\nIllinois courts have examine d ( 1) who appoints the members of the entity , (2) the formality of\n\ntheir appointment, (3) whether the members are paid for their tenure , (4) the entity's assigned\nduties, including duties reflected in its bylaws or authorizing statute , (5) whether the entity s' role\nis solely advisory or whether it also has a deliberative or investigative function , (6) whether the\nentity is subject to government control or otherwise accountable to any public body , (7) whether\nthe entity has a budget, ( 8) the entity' s place within the larger public body , and ( 9) the impact of\ndecisions or recommendations that the entity makes. University Professionals of Illinois v.\n\n1E- mail from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Sir or Madam\nMay 20, 2024).\n25 ILCS 120/ 1.02 (West 2022).\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 3\nStukel, 344 Ill. App. 3d 856, 865 (2003).3 None of the cases used to formulate the test, however ,\nconcerned a State agency convening a group of external volunteers. See People ex rel. Cooper v.\nCarlson ,28 Ill. App. 3d 569 ,572 (1975) (voluntary staff meetings of department heads of county\ndevelopment department not meetings of public body subject to OMA); Pope v. Parkinson , 48\nIll. App. 3d 797 , 801 (1977) ( committee of students and faculty selected by chancellor to advise\n\nhim on administration of university arena not a public body); Board of Regents of the Regency\nUniversity System v. Reynard , 292 Ill. App. 3d 968, 980-81 (1997) (university athletic council\ncreated by university's academic senate and incorporated in university's formal organizational\nstructure with assigned duties in supplement to bylaws was public body); Stukel, 344 Ill. App. 3d\nat 866 ( group formed by presidents and chancellors of universities on their own initiative to\nexpress views to Illinois Board of Higher Education not a public body). Further, upon searching\n\ncase law from all 50 states, this office was unable to find any published decisions analyzing\nwhether community groups convened pursuant to PEL studies were or were not required to\nadhere to open meetings laws.\nIn its answer to this office, IDOT explained the genesis and purpose of the CAG\n\nas follows:\nThe CAG is one component of the Federal Planning and\nEnvironmental Linkages ( PEL) study process, which requires\npublic consultation as part of the National Environmental\n\nProtection Act. (NEPA). The purpose of the CAG is to provide\ncommunity input on various elements of the study, including\ndeveloping transportation needs, identifying issues important to the\ncommunity, and providing feedback on transportation\n\nalternatives.[4]\nAddressing the first three factors from Stukel, IDOT asserted that \"CAG\nparticipants are not appointed, and there is no mechanism by which to appoint them.\" 5 Rather,\nCAG is comprised solely of volunteers selected from a cross -section of the public who\n3Additionally, in analyzing whether a private entity constitutes a subsidiary body of a public body,\nIllinois courts have analyzed ( 1) the extent to which the entity has a legal existence independent of government\nresolution, ( 2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly\nfunded, and (4) the nature of the functions perform ed by the entity. Better Government Ass' n v. Illinois High School\nAss' n, 2017 IL 121124, ¶ 26. The advisory body factors from Stukel are the appropriate factors to analyze here.\n4Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1.\n5Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 2 .\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 4\nrepresent a wide variety of local interests, such as elected leaders, emergency services personnel,\nschools, residents, businesses, park districts, and others with a stake in the study's outcome.\" 6\nIDOT stated that at a public information meeting on April 23, 2024, a form was provided for any\ncommunity members who wished to apply to be on the CAG, and all who applied were selected.\nIDOT acknowledged that an IDOT \" representative assists in leading CAG meetings,\" but noted\n\nthat \"no Department employee or agent is a member of the group.\" 7 IDOT confirmed that the\nparticipants do not receive pay, reimbursement, or any other compensation.\nAs to the CAG's duties and any sources of authority, IDOT stated:\nThere is no authorizing statute, regulation, resolution, or any other\n\nofficial action by any State entity transforming the CAG into a\npublic body akin to a statutorily -authorized commission or\ncommittee; indeed, the CAG is simply a collection of the public\n\ninvited to provide stakeholder input regarding an infrastructure\nproject. The CAG has no State -sanctioned authority.\n\nIn keeping with the nature of the CAG as a mechanism for public\ninput on infrastructure projects, CAG participants have no assigned\n\nduties and there is no formal organization within the CAG, such as\na chairperson or vice chair. The CAG is governed by no bylaws\nand has no procedure by which it could even authorize such.[ 8]\nAdditionally, addressing the role of the CAG, its place within IDOT ,and its\nimpact, IDOT asserted:\nThe CAG makes no binding decisions: its contributions are\nsolely made in an advisory capacity for consideration by the\n\nDepartment and the Federal Highway Administration, which is\n\n6Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1 .\n7Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1.\n8Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1 -2.\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 5\nultimately the final decisionmaker. While a Department\nrepresentative may help lead meetings, the CAG is not included in\nthe Department's organizational structure. Indeed, the CAG is not a\npart of the Department in any sense beyond an external group\ncomprised of outside stakeholders informally organized by the\n\nDepartment to better understand the effect of transportation\nprojects within a given community. The members of the public\nwho join the CAG to share their input are not subject to the control\nof the Department or performing any State function. The\nDepartment merely organized the CAG to help inform the\nDepartment of transportation issues and what transportation\n\nalternatives should be considered in relation to its IL 120 PEL\nStudy per federal requirements .[9]\nIn reply, Ms. Klipp expressed disappointment that the CAG did not voluntarily\ncomply with OMA. She argued that OMA should apply to CAG meetings because ( 1) the group\n\nis providing federally required public input to a federal planning process regulated by the\nNational Environmental Protection Act [,]\" (2) \"[ p]revious studies * * * regarding this project\nThe Blue -Ribbon Advisory Council and the Tri-County Access Study run by the Illinois\nTollway) followed the OMA [,]\" and ( 3) public engagement is a core tenet of the PEL format. 10\nMs. Klipp later provided this office with evidence that the Blue Ribbon Advisory Council\n\nadhered to OMA. Ms. Klipp argued that holding the CAG meetings without adhering to OMA\nmeant that many members of the public were improperly shut out of the decision -making\nprocess: \"[ J] oining the CAG is a time commitment as you are asked to attend or have a\nsubstitute for all the meetings. A member of the public should be able to view part of or all of the\n\nmeetings as they are able and interested to do so and not have to join a formal group with a larger\ntime commitment in order to be informed .\"11 She also alleged that \"CAG membership\napplications closed on May 5th so members of the public who learned about the project after that\ntime are being shut out without the opportunity to observe or participate .\"12\n\n9Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 2 .\n10Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (June 11, 2024), at 1 -2.\n\n11Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( June 11, 2024), at 2.\n12Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( June 11, 2024), at 3.\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 6\nThis office has reviewed the website for the Study.13 In introducing the CAG, the\nwebsite states that the group \"is a collection of community representatives and serves as the focal\npoint for the exchange of information between government entities and the local community.\" 14\nThe website further states that \"[t]he CAG is made up of representatives of diverse community\ninterests, local government officials, community representatives, property owners and residents,\n\nand stakeholders with technical expertise [,]\" and that the CAG assists IDOT \"in making better\ndecisions on transportation related projects that benefit the community and environment.\" 15 In a\nsection addressing what a CAG member may expect, the website also states:\nIt is anticipated that this project will have up to six CAG\nmeetings to review the information necessary to complete this\n\nPlanning and Environmental Linkages Study. Meetings will\ngenerally be scheduled during normal business hours and may be\nin person or virtual. CAG members will be responsible for\n\nattending or designating a representative to attend the CAG\nmeetings, providing general input on the study, communicating to\n\nstakeholders outside the CAG, and collaborating with the\nDepartment. The Study Team anticipates up to six (6) CAG\nmeetings from May 2024 through 2025.[16]\nUnder the first factor enumerated above for assessing whether CAG is an advisory\n\nbody, it is evident that IDOT did not formally appoint members to the CAG. Rather, IDOT\nasserted that it permitted all volunteers in the community who filled out a form to join the CAG,\nand the materials this office has reviewed reflect that IDOT also invited certain local individuals\nto become members in the interest of having a balanced cross -section of stakeholders.\n\nThe\n\ninformation indicating that the CAG has a fixed membership now that the application period has\nclosed and that members are asked to attend all meetings or arrange substitutes for any absences\nsuggests that there is some formality to the membership arrangement, though it is undisputed that\nthe members are not paid for their tenure, and there appears to be no barrier to IDOT removing a\nmember for any reason at any time . Additionally, while the materials IDOT provided to this\n\noffice indicate that various local officials are members of the CAG, it is undisputed that no\n\n13Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Illinois Route 120\nPlanning and Environmental Linkages Study , https:// il120study. com/ ( last visited September 16, 2024).\n14Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ ( last visited September 16, 2024).\n\n15Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ ( last visited September 16, 2024).\n16Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ ( last visited September 16, 2024).\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 7\nmember is an IDOT employee or agent. Moreover, IDOT confirmed that the CAG has no\nbylaws, and there is no Illinois authorizing statute or other State authority to formalize the group\nas an Illinois public body . Rather, IDOT convened the CAG as part of its choice to use the\noptional PEL approach to inform the federal environmental review process for the Illinois Route\n120 project. 17 Thus, the CAG does not have duties assigned by statutes or bylaws, but CAG\n\nmembers are asked to provide public input because PEL studies require public participation .18\nThis role is advisory, though members are asked to serve as community liaisons . The CAG\nmembers advise IDOT's study group for the project, which appears to consist of IDOT staff\nmembers and/or consultants for IDOT. While IDOT exercised a degree of control over the CAG\nin the sense of IDOT representatives running the group to gather such public input, the group has\nno budget and, significantly, no place in IDOT' s formal organizational structure. See Reynard ,\n\n292 Ill. App. 3d at 977 (\"[ T]he definition of \"public body\" * * * depends primarily upon\norganizational structure .\"). Further, the CAG has no authority to make binding decisions ; it\nmerely provides feedback, with the Federal Highway Administration as the final decisionmaker.\nEvaluating these factors together, the CAG may serve a valuable public\n\nparticipation function under federal planning processes and procedures that pertain to the Study ,\nbut it does not do so as a \" public body \" of the State of Illinois. As an ad hoc entity of external\nvolunteers, the CAG is more akin to a focus group than an advisory body of a public body. The\nCAG has several features that the court in Pope cited in determining that a committee of students\nand faculty was not an advisory body ––specifically: ( 1) it is ad hoc in nature , (2) its members\n\nwere not officially appointed, and (3) it falls outside IDOT's formal organizational nature .\nAlthough Ms. Klipp demonstrated that the Blue Ribbon Advisory Council convened by the\nIllinois Tollway for an earlier stage of the project adhered to OMA, she acknowledged that she\nwas unsure whether it was required to do so. Notably, Ms. Klipp forwarded to this office an e -\n\nmail from Bill Morris, former member of the Illinois Tollway Board, which stated: \" The\nTollway Committee did operate under the Open Meeting guidelines. I was on the Tollway Board\nthat established the Committee[.]\" 19 Unlike the Illinois Tollway, IDOT does not have a board\ngovernance structure, and it is undisputed that no legislative governing body, such as the Illinois\nTollway Board, established the CAG. An entity may choose to adhere to OMA to promote\n\ntransparency or because it finds the framework of the Act useful for conducting its activities, but\nit is only required to comply with OMA if it constitutes a \" public body\" under the definition of\nthat term in section 1.02 .\n\n17See 23 U.S.C. § 168 (d) (2018) (permitting use of \"planning products\" such as PEL stud ies that\ninvolve the public to inform environmental review processes).\n\n18See 23 CFR pt. 450.212( b)(2) (2024) and 23 CFR pt. 450. 318( b)(2) ( 2024) ( requiring public\nreview and opportunity to comment).\n19E- mail from Bill Morris to Barbara [ Klipp] ( undated).\n\n\fMs. Barbara Klipp\nMr. Steven Schilke\nNovember 4 , 2024\nPage 8\nUnder the particular facts and circumstances presented in this matter, the Public\nAccess Bureau is unable to conclude that the CAG is a public body subject to OMA. This office\nnotes that although Ms. Klipp contends that adhering to OMA would make it possible for more\nmembers of the public to stay informed about the project, IDOT has posted on the website for the\nStudy extensive information about both the first meeting of the CAG on May 9, 2024, and the\n\nsecond meeting of the CAG on August 28, 2024.20 Additionally, IDOT has committed to hold at\nleast three public information meetings about the project, where attendees from the public are\noffered an opportunity to provide feedback. While not equivalent to OMA compliance, the\npublicly posted materials and public outreach give a significant degree of public insight into the\nCAG' s activities.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at joshua. jones@ilag. gov or ( 773) 590 -7951.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n81492 o no vio not a pb\n\n20Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ ( last visited September 16, 2024).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A Community Advisory Group meeting under OMA","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-81492/","full_text":"November 4,2024\n\nVia electronic mail\n\nMs. Barbara Klipp\nExecutive Director\nMidwest Sustainability Group\n[street address redacted for site publication -- see original PDF]\nbarbara@midwestsustainability.org\nVia electronic mail\nMr. Steven Schilke\nBureau Chief of Programming/ Region One\nIllinois Department of Transportation\n\n201 West Center Court\nSchaumburg, Illinois 60196\nsteven. schilke@illinois. gov\n\nFOIA Request for Review: 2024 PAC 81492\nDear Ms. Klipp and Mr. Schilke:\nThis determination letter is issued by the Attorney General pursuant to section\n\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons\ndiscussed below, this office concludes that the Community Advisory Group (CAG) established\nby the Illinois Department of Transportation (IDOT) for the Illinois Route 120 Planning and\nEnvironmental Linkages (PEL) Study (Study) did not violate OMA by holding a meeting on\nMay 9, 2024, without adhering to the requirements of the Act.\n\nOn May 20, 2024, Ms. Barbara Klipp submitted a Request for Review to the\nPublic Access Bureau on behalf of the Midwest Sustainability Group alleging that the CAG\nimproperly held its first meeting on May 9, 2024, without adhering to the requirements of OMA.\nMs. Klipp, a CAG member, state d: \"This is a governmentally run study that impacts a lot of\n\nnearby residents, and we are hoping the public will be allowed to participate and have access to\nthe meetings.\" 1\nOn May 21, 2024, the Public Access Bureau sent a copy of the Request for\nReview to IDOT. The Public Access Bureau also sent IDOT a letter requesting, for this office's\n\nconfidential review, copies of any notices, agendas, minutes, and recordings of the May 9, 2024,\nmeeting, as well as any records describing or reflecting the formation and role/functioning of the\nCAG. The inquiry letter also asked IDOT to address whether the elements courts have used to\ndetermine whether entities constituted advisory bodies or subsidiary bodies applied to the CAG.\nOn May 31, 2024, IDOT furnished a written answer and approximately 300 pages of related\nrecords for this office's review. On June 11, 2024, Ms. Klipp submitted a reply to that answer.\n\nANALYSIS\nSection 1 of OMA (5 ILCS 120/1 (West 2022)) states that \"it is the intent of this\nAct to ensure that the actions of public bodies be taken openly and that their deliberations be\n\nconducted openly.\"\nSection 1.02 of the Open Meetings Act2 defines \"public body\" as including:\nall legislative, executive, administrative or advisory bodies of the\n\nState, counties, townships, cities, villages, incorporated towns,\nschool districts and all other municipal corporations, boards,\nbureaus, committees or commissions of this State, and any\nsubsidiary bodies of any of the foregoing including but limited to\n\ncommittees and subcommittees which are supported in whole or in\npart by tax revenue, or which expend tax revenue[.]\nIn analyzing whether an entity constitutes an advisory body of a public body,\nIllinois courts have examine d (1) who appoints the members of the entity, (2) the formality of\n\ntheir appointment, (3) whether the members are paid for their tenure, (4) the entity's assigned\nduties, including duties reflected in its bylaws or authorizing statute, (5) whether the entity s' role\nis solely advisory or whether it also has a deliberative or investigative function, (6) whether the\nentity is subject to government control or otherwise accountable to any public body, (7) whether\nthe entity has a budget, (8) the entity's place within the larger public body, and (9) the impact of\ndecisions or recommendations that the entity makes. University Professionals of Illinois v.\n\n1E- mail from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Sir or Madam\n\nStukel, 344 Ill. App. 3d 856, 865 (2003).3 None of the cases used to formulate the test, however,\nconcerned a State agency convening a group of external volunteers. See People ex rel. Cooper v.\nCarlson,28 Ill. App. 3d 569,572 (1975) (voluntary staff meetings of department heads of county\ndevelopment department not meetings of public body subject to OMA); Pope v. Parkinson, 48\nIll. App. 3d 797, 801 (1977) (committee of students and faculty selected by chancellor to advise\n\nhim on administration of university arena not a public body); Board of Regents of the Regency\nUniversity System v. Reynard, 292 Ill. App. 3d 968, 980-81 (1997) (university athletic council\ncreated by university's academic senate and incorporated in university's formal organizational\nstructure with assigned duties in supplement to bylaws was public body); Stukel, 344 Ill. App. 3d\nat 866 (group formed by presidents and chancellors of universities on their own initiative to\nexpress views to Illinois Board of Higher Education not a public body). Further, upon searching\n\ncase law from all 50 states, this office was unable to find any published decisions analyzing\nwhether community groups convened pursuant to PEL studies were or were not required to\nadhere to open meetings laws.\nIn its answer to this office, IDOT explained the genesis and purpose of the CAG\n\nas follows:\nThe CAG is one component of the Federal Planning and\nEnvironmental Linkages (PEL) study process, which requires\npublic consultation as part of the National Environmental\n\nProtection Act. (NEPA). The purpose of the CAG is to provide\ncommunity input on various elements of the study, including\ndeveloping transportation needs, identifying issues important to the\ncommunity, and providing feedback on transportation\n\nalternatives.[4]\nAddressing the first three factors from Stukel, IDOT asserted that \"CAG\nparticipants are not appointed, and there is no mechanism by which to appoint them.\" 5 Rather,\nCAG is comprised solely of volunteers selected from a cross -section of the public who\n3 Additionally, in analyzing whether a private entity constitutes a subsidiary body of a public body,\nIllinois courts have analyzed (1) the extent to which the entity has a legal existence independent of government\nresolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly\nfunded, and (4) the nature of the functions perform ed by the entity. Better Government Ass' n v. Illinois High School\nAss' n, 2017 IL 121124, ¶ 26. The advisory body factors from Stukel are the appropriate factors to analyze here.\n4 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1.\n5 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\n\nrepresent a wide variety of local interests, such as elected leaders, emergency services personnel,\nschools, residents, businesses, park districts, and others with a stake in the study's outcome.\" 6\nIDOT stated that at a public information meeting on April 23, 2024, a form was provided for any\ncommunity members who wished to apply to be on the CAG, and all who applied were selected.\nIDOT acknowledged that an IDOT \" representative assists in leading CAG meetings,\" but noted\n\nthat \"no Department employee or agent is a member of the group.\" 7 IDOT confirmed that the\nparticipants do not receive pay, reimbursement, or any other compensation.\nAs to the CAG's duties and any sources of authority, IDOT stated:\nThere is no authorizing statute, regulation, resolution, or any other\n\nofficial action by any State entity transforming the CAG into a\npublic body akin to a statutorily -authorized commission or\ncommittee; indeed, the CAG is simply a collection of the public\n\ninvited to provide stakeholder input regarding an infrastructure\nproject. The CAG has no State -sanctioned authority.\n\nIn keeping with the nature of the CAG as a mechanism for public\ninput on infrastructure projects, CAG participants have no assigned\n\nduties and there is no formal organization within the CAG, such as\na chairperson or vice chair. The CAG is governed by no bylaws\nand has no procedure by which it could even authorize such.[ 8]\nAdditionally, addressing the role of the CAG, its place within IDOT,and its\nimpact, IDOT asserted:\nThe CAG makes no binding decisions: its contributions are\nsolely made in an advisory capacity for consideration by the\n\nDepartment and the Federal Highway Administration, which is\n\n6 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1.\n7 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 1.\n8 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\n\nultimately the final decisionmaker. While a Department\nrepresentative may help lead meetings, the CAG is not included in\nthe Department's organizational structure. Indeed, the CAG is not a\npart of the Department in any sense beyond an external group\ncomprised of outside stakeholders informally organized by the\n\nDepartment to better understand the effect of transportation\nprojects within a given community. The members of the public\nwho join the CAG to share their input are not subject to the control\nof the Department or performing any State function. The\nDepartment merely organized the CAG to help inform the\nDepartment of transportation issues and what transportation\n\nalternatives should be considered in relation to its IL 120 PEL\nStudy per federal requirements.[9]\nIn reply, Ms. Klipp expressed disappointment that the CAG did not voluntarily\ncomply with OMA. She argued that OMA should apply to CAG meetings because (1) the group\n\nis providing federally required public input to a federal planning process regulated by the\nNational Environmental Protection Act [,]\" (2) \"[ p]revious studies * * * regarding this project\nThe Blue -Ribbon Advisory Council and the Tri-County Access Study run by the Illinois\nTollway) followed the OMA [,]\" and (3) public engagement is a core tenet of the PEL format. 10\nMs. Klipp later provided this office with evidence that the Blue Ribbon Advisory Council\n\nadhered to OMA. Ms. Klipp argued that holding the CAG meetings without adhering to OMA\nmeant that many members of the public were improperly shut out of the decision -making\nprocess: \"[ J] oining the CAG is a time commitment as you are asked to attend or have a\nsubstitute for all the meetings. A member of the public should be able to view part of or all of the\n\nmeetings as they are able and interested to do so and not have to join a formal group with a larger\ntime commitment in order to be informed.\"11 She also alleged that \"CAG membership\napplications closed on May 5th so members of the public who learned about the project after that\ntime are being shut out without the opportunity to observe or participate.\"12\n\n9 Letter from Jose Rios, P.E., Region One Engineer, Illinois Department of Transportation, to\nJoshua M. Jones, Deputy Bureau Chief, Office of the Attorney General – State of Illinois, Public Access Bureau\nMay 31, 2024), at 2.\n10 Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (June 11, 2024), at 1 -2.\n\n11 Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (June 11, 2024), at 2.\n12 Letter from Barbara Klipp, Executive Director, Midwest Sustainability Group, to Joshua M\nJones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (June 11, 2024), at 3.\n\nThis office has reviewed the website for the Study.13 In introducing the CAG, the\nwebsite states that the group \"is a collection of community representatives and serves as the focal\npoint for the exchange of information between government entities and the local community.\" 14\nThe website further states that \"[t]he CAG is made up of representatives of diverse community\ninterests, local government officials, community representatives, property owners and residents,\n\nand stakeholders with technical expertise [,]\" and that the CAG assists IDOT \"in making better\ndecisions on transportation related projects that benefit the community and environment.\" 15 In a\nsection addressing what a CAG member may expect, the website also states:\nIt is anticipated that this project will have up to six CAG\nmeetings to review the information necessary to complete this\n\nPlanning and Environmental Linkages Study. Meetings will\ngenerally be scheduled during normal business hours and may be\nin person or virtual. CAG members will be responsible for\n\nattending or designating a representative to attend the CAG\nmeetings, providing general input on the study, communicating to\n\nstakeholders outside the CAG, and collaborating with the\nDepartment. The Study Team anticipates up to six (6) CAG\nmeetings from May 2024 through 2025.[16]\nUnder the first factor enumerated above for assessing whether CAG is an advisory\n\nbody, it is evident that IDOT did not formally appoint members to the CAG. Rather, IDOT\nasserted that it permitted all volunteers in the community who filled out a form to join the CAG,\nand the materials this office has reviewed reflect that IDOT also invited certain local individuals\nto become members in the interest of having a balanced cross -section of stakeholders.\n\nThe\n\ninformation indicating that the CAG has a fixed membership now that the application period has\nclosed and that members are asked to attend all meetings or arrange substitutes for any absences\nsuggests that there is some formality to the membership arrangement, though it is undisputed that\nthe members are not paid for their tenure, and there appears to be no barrier to IDOT removing a\nmember for any reason at any time. Additionally, while the materials IDOT provided to this\n\noffice indicate that various local officials are members of the CAG, it is undisputed that no\n\n13 Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Illinois Route 120\nPlanning and Environmental Linkages Study, https:// il120study. com/ (last visited September 16, 2024).\n14 Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ (last visited September 16, 2024).\n\n15 Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ (last visited September 16, 2024).\n16 Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ (last visited September 16, 2024).\n\nmember is an IDOT employee or agent. Moreover, IDOT confirmed that the CAG has no\nbylaws, and there is no Illinois authorizing statute or other State authority to formalize the group\nas an Illinois public body. Rather, IDOT convened the CAG as part of its choice to use the\noptional PEL approach to inform the federal environmental review process for the Illinois Route\n120 project. 17 Thus, the CAG does not have duties assigned by statutes or bylaws, but CAG\n\nmembers are asked to provide public input because PEL studies require public participation.18\nThis role is advisory, though members are asked to serve as community liaisons. The CAG\nmembers advise IDOT's study group for the project, which appears to consist of IDOT staff\nmembers and/or consultants for IDOT. While IDOT exercised a degree of control over the CAG\nin the sense of IDOT representatives running the group to gather such public input, the group has\nno budget and, significantly, no place in IDOT's formal organizational structure. See Reynard,\n\n292 Ill. App. 3d at 977 (\"[ T]he definition of \"public body\" * * * depends primarily upon\norganizational structure.\"). Further, the CAG has no authority to make binding decisions; it\nmerely provides feedback, with the Federal Highway Administration as the final decisionmaker.\nEvaluating these factors together, the CAG may serve a valuable public\n\nparticipation function under federal planning processes and procedures that pertain to the Study,\nbut it does not do so as a \" public body \" of the State of Illinois. As an ad hoc entity of external\nvolunteers, the CAG is more akin to a focus group than an advisory body of a public body. The\nCAG has several features that the court in Pope cited in determining that a committee of students\nand faculty was not an advisory body ––specifically: (1) it is ad hoc in nature, (2) its members\n\nwere not officially appointed, and (3) it falls outside IDOT's formal organizational nature.\nAlthough Ms. Klipp demonstrated that the Blue Ribbon Advisory Council convened by the\nIllinois Tollway for an earlier stage of the project adhered to OMA, she acknowledged that she\nwas unsure whether it was required to do so. Notably, Ms. Klipp forwarded to this office an e -\n\nmail from Bill Morris, former member of the Illinois Tollway Board, which stated: \" The\nTollway Committee did operate under the Open Meeting guidelines. I was on the Tollway Board\nthat established the Committee[.]\" 19 Unlike the Illinois Tollway, IDOT does not have a board\ngovernance structure, and it is undisputed that no legislative governing body, such as the Illinois\nTollway Board, established the CAG. An entity may choose to adhere to OMA to promote\n\ntransparency or because it finds the framework of the Act useful for conducting its activities, but\nit is only required to comply with OMA if it constitutes a \" public body\" under the definition of\nthat term in section 1.02.\n\n17 See 23 U.S.C. § 168 (d) (2018) (permitting use of \"planning products\" such as PEL stud ies that\ninvolve the public to inform environmental review processes).\n\n18 See 23 CFR pt. 450.212(b)(2) (2024) and 23 CFR pt. 450. 318(b)(2) (2024) (requiring public\n\nUnder the particular facts and circumstances presented in this matter, the Public\nAccess Bureau is unable to conclude that the CAG is a public body subject to OMA. This office\nnotes that although Ms. Klipp contends that adhering to OMA would make it possible for more\nmembers of the public to stay informed about the project, IDOT has posted on the website for the\nStudy extensive information about both the first meeting of the CAG on May 9, 2024, and the\n\nsecond meeting of the CAG on August 28, 2024.20 Additionally, IDOT has committed to hold at\nleast three public information meetings about the project, where attendees from the public are\noffered an opportunity to provide feedback. While not equivalent to OMA compliance, the\npublicly posted materials and public outreach give a significant degree of public insight into the\nCAG's activities.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at joshua. jones@ilag. gov or (773) 590 -7951.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n81492 o no vio not a pb\n\n20 Illinois Department of Transportation, IL 120 Study, IL60 to Almond Road, Community\nAdvisory Group, https:// il120study. com/ advisory -group/ (last visited September 16, 2024)."}
{"id":1464,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-06-14","case_number":null,"request_numbers":["81742"],"title":"Dolton Board did not violate OMA by voting on appointment with sufficient agenda notice","filename":"81742, issued June 14, 2024.pdf","rel_path":null,"word_count":2167,"summary":"The Mayor of Dolton alleged that the Village Board violated the Open Meetings Act by voting to appoint a special investigator when the agenda only listed the appointment of 'Additional Legislative Counsel.' The PAC determined that the agenda provided sufficient notice of the general subject matter and that no further action was warranted.","plain_summary":"The Mayor of Dolton complained that the Village Board voted on an appointment that wasn't clearly listed on their meeting agenda. The Attorney General's office reviewed the complaint and decided the Board followed the law because the agenda gave enough information about the general topic being discussed. This means the Board's vote stands and no further action will be taken by the state.","holding":"The PAC determined that the Village of Dolton Board of Trustees did not violate the Open Meetings Act because the agenda items provided sufficient notice of the general subject matter of the Board's actions.","legal_question":"Whether the Village of Dolton Board of Trustees violated the Open Meetings Act by taking action on an appointment that allegedly differed from the specific title listed on the meeting agenda.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Dolton Board of Trustees","requesting_party":"Tiffany A. Henyard","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of an agenda item regarding the appointment of legal counsel/special investigator during a special meeting.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/81742, issued June 14, 2024.pdf","sha256":"cb47528d715e97b22652c9a10cd3bcc120ee1b0f190e83f908ac598bc81b30dd","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","Open Meetings Act","Village of Dolton"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"June 14, 2024\n\nVia electronic mail\n\nThe Honorable Tiffany A. Henyard\nMayor\nVillage of Dolton\n[street address redacted for site publication -- see original PDF]\nthenyard@vodolton.org\nRE: OMA Request for Review – 2024 PAC 81742\nDear Ms. Henyard :\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(b) (West 2022)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted in this matter.\n\nOn June 7 ,2024 ,this office received your Request for Review alleging that four\ntrustees (Trustees) of the Village of Dolton Board of Trustees (Board) violated the requirements\nof OMA during the Board's April 8, 2024, special meeting by voting to appoint Ms. Lori\nLightfoot as \"' special investigator'\" in the absence of an agenda item for appointing her to that\nrole. 1 You , the Mayor of Dolton, explain that this meeting was called by the Trustees ( a quorum\n\nof the Board), and that you and the two other trustees did not attend. The relevant agenda items\nread:\nB. Discussion and Approval of the appointment of Lori E.\nLightfoot as Additional Legislative Counsel per\n\nRESOLUTION NO. 24 -006.\n\n1Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [1 ].\n\n\fThe Honorable Tiffany A. Henyard\n\nJune 14, 2024\nPage 2\nC. Discussion and Approval to approve retainer agreement with\nLori E. Lightfoot as Additional Legislative Counsel per\n\nRESOLUTION NO. 24 -007.[2]\nYou allege that after the Trustees and their legislative counsel were informed that\nappointing Ms. Lightfoot as \" Additional Legislative Counsel\" would violate the Village Code,\nthe Trustees \" attempted to amend the agenda item\" 3 during the special meeting by motioning to\nappoint Ms. Lightfoot as \"' special investigator.'\" 4 You contend that \"[ b] y amending the special\n\nmeeting agenda to appoint Lightfoot to a position that does not exist in either the Illinois\nMunicipal Code or the Village Code, the Trustee[ s] violated\" section 2.02 of OMA, 5 which, you\nclaim, \"provides that action taken on special meeting agendas must be germane to the item on the\nagenda.\" 6 The sentence you reference is found in section 2.02(a) of OMA ;7 it provides, in\nrelevant part:\n\nPublic notice of any special meeting * * * shall be given at least 48\nhours before such meeting, which notice shall also include the\nagenda for the special * * * meeting, but the validity of any action\ntaken by the public body which is germane to a subject on the\n\nagenda shall not be affected by other errors or omissions in the\nagenda.\nIn making your argument, you compare and contrast the cases Argo High School\nCouncil of Local 571 v. Argo Community High School District , 163 Ill. App. 3d 578 (1987) and\nPeople ex rel. Redell v. Giglio , 238 Ill. App. 3d 141 (1992). You further claim:\n\nBy specifying the position to which they were considering\nappointing Lightfoot, the Trustees tied their own hands and they\ncould only appoint Lightfoot as legislative counsel. The agenda, as\n2Village of Dolton Board of Trustees, Agenda Items 5.B. and 5.C. (April 8, 2024).\n\n3It is clear from the video recording of the meeting you provided that the Board amended the\nmotions to appoint and retain Ms. Lightfoot, not the agenda items. Reality Check TV Chicago ,\nDOLTON\nBOARD MEETING LIVE\n4/8/ 24 ,YouTube, at 39: 10 (livestreamed April 8, 2024),\nhttps:// www.youtube. com/ watch? v=9c -GC5oAeW4.\n\n4Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [1 ].\n55 ILCS 120/ 2.02 (West 2022).\n\n6Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [2 ].\n75 ILCS 120/ 2.02 (a) ( West 2022).\n\n\fThe Honorable Tiffany A. Henyard\n\nJune 14, 2024\nPage 3\nposted, did not inform the public that Lightfoot would be\nappointed as \" special investigator.\" It simply said she would be\n\nappointed as \" additional legislative counsel.\" However, the\nlegislative counsel ordinance does not even authorize said counsel\nto perform any sort of investigations. * * * Had the Trustees done\ntheir due diligence, they would have realized that they should have\njust cancelled and recalled the meeting on another date with the\ncorrect agenda item.\n\nThe differences in the legislative counsel and \" special\ninvestigator,\" which does not even exist in the Village Code,\npositions are stark, particularly since legislative counsel has no\ninvestigative authority. The agenda items, as posted, are clearly\n\nnot germane to the action taken. As such, the actions taken should\nbe voided, and the Trustees should make an appointment that\ncomplies with the Act, as well as the Illinois Municipal Code and\nthe Village Code. (Emphasis in original.)[8]\nYou enclosed a copy of the legislative counsel ordinance 9 and a link to a video recording of the\nmeeting.10\nAs a threshold matter, section 3.5( a) of OMA 11 provides that \"[ a] person who\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith the Public Access Counselor established in the Office of the Attorney General not later than\n\n60 days after the alleged violation.\" (Emphasis added.) Accordingly, a Request for Review of\nan alleged OMA violation is properly lodged against the public body as a whole, rather than\nindividual members.\n\nYour Request for Review thus alleges that the Board violated OMA.\n\nAdditionally, the Public Access Counselor' s authority to resolve disputes is\n\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/1 et seq.\nWest 2022)). See 15 ILCS 205/7(c)(3) (West 2022). Therefore, your allegations about the\nVillage Code and Illinois Municipal Code are not subject to review by this office.\n\n8Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [ 2 ].\n9Village of Dolton Ordinance No. 21 -009 (approved September 2, 2021).\n\n10Reality Check TV Chicago ,\nDOLTON BOARD MEETING LIVE\nlivestreamed April 8, 2024), https:// www.youtube. com/ watch? v=9c -GC5oAeW4 .\n115 ILCS 120/ 3.5(a) ( West 2022).\n\n4/8/ 24 , YouTube\n\n\fThe Honorable Tiffany A. Henyard\n\nJune 14, 2024\nPage 4\nTurning to your allegation that the Board violated OMA by taking final action\nthat was not germane to the items listed on the April 8, 2024, meeting agenda , the current version\n\nof OMA provides \"[ a]ny agenda required under this Section shall set forth the general subject\nmatter of any resolution or ordinance that will be the subject of final action at the meeting.\" 5\nILCS 120/2.02(c) (West 2022). Argo ,the 1987 case you cited, was decided long before section\n2.02(c) was added to OMA . In construing a prior version of section 2.02(a) of OMA,12 the court\nnoted that \"' germane' is defined as ' in close relationship, appropriate, relative, pertinent [,]\" and\nthat \"[ c] ourts have expanded the meaning of the word even further, holding that where the title of\n\nan act is general, anything germane to the subject matter passes the constitutional prohibition\nagainst special legislation.\" Argo, 163 Ill. App. 3d at 582 (quoting Black's Law Dictionary 618\n5th ed. 1979)). The court concluded that a school board's final actions to extend the\nsuperintendent's contract, change department chairperson appointments from permanent to\nrotational, and solicit applications for the athletic director position were germane to the agenda\n\nitem \"review and discussion of salaries involving administrators, supervisors, and other\npersonnel not covered by an agreement [,]\" because \"[ d] iscussions of who can authorize salary\nincreases (the rotation system), who will receive a salary, and the length of the superintendent's\ncontract are 'closely related 'and 'pertinent' to a discussion of salaries of personnel not covered by\nagreements.\"\n\nArgo , 163 Ill. App. 3d at 582. Accordingly, the court affirmed the lower court' s\n\ndismissal of a complaint seeking to invalidate the school board's final actions. Argo , 163 Ill.\nApp. 3d at 583 .\nEven if germaneness was still the applicable standard for providing advance\nnotice of final action , the action taken by the Board on April 8, 2024, to appoint Ms. Lightfoot as\nspecial investigator\" was clearly closely related and pertinent to the agenda items about\n\nappointing her as \" Additional Legislative Counsel,\" as those two terms are just different\nphrasings of the role the Board was hiring Ms. Lightfoot to perform. As of April 5, 2024, it was\nwidely reported and well understood that the Board majority sought to hire Ms. Lightfoot to\ninvestigate the Village administration. 13\n\nYour argument that the wording of the Board's April 8, 2024, agenda items meant\nthat the Board \" could only appoint Lightfoot as legislative counsel\" construes the term\ngermane\" in section 2.02(a) of OMA as interchangeable with \"identical[.]\" The agenda item\nthat the court found insufficient in Giglio —\" and all other matters pertaining to the function of\n\nthe Township\"— is starkly distinguishable from the specified subject matter of the Board's April\n8, 2024, agenda items in that the catch -all agenda item in Giglio was so overgeneralized that it\nin essence, amounted to no agenda at all.\" Giglio ,238 Ill. App. 3d at 146. Because Ms.\nLightfoot's precise title was not necessary for the agenda items to be germane to Board's action\n\n12Ill. Rev. Stat. 1985, ch. 102, par. 42.02.\n13Ben Bradley, Trustees ask Lightfoot to investigate Dolton mayor , WGN-TV (updated April 5,\n2024, 4: 11 p.m.), https://wgntv.com/news/wgn -investigates/ trustees- ask-lightfoot- to-investigate- dolton -mayor/.\n\n\fThe Honorable Tiffany A. Henyard\n\nJune 14, 2024\nPage 5\nto hire her as a legal advisor for the Trustees , section 2.02(a) of OMA does not provide a basis\nfor invalidating the Board' s action to appoint Ms. Lightfoot as \" special investigator.\"\n\nAlthough not mentioned in your Request for Review, section 2.02(c) of OMA,\nwhich was adopted effective January 1, 2013, by Public Act 97 -827, actually sets forth a higher\nstandard for advance notice than mere germaneness. The Board's April 8, 2024, agenda items\nsimilarly satisfy that standard. As discussed above, section 2.02( c) of OMA provides that \"[ a] ny\nagenda required under this Section shall set forth the general subject matter of any resolution or\n\nordinance that will be the subject of final action at the meeting.\" OMA does not contain a\ndefinition of \"general subject matter ,\" but the Senate debate on the underlying bill indicates that\nthe General Assembly intended this provision to ensure that agendas provide general notice of all\nmatters upon which a public body would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\ngeneral notice, if you're going to have and take final action, as\nto generally what' s going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has determined that \" the General Assembly' s use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element( s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4 -5 (determining that voting to sign a\nnew city administrator to a five -year contract under the agenda item \" Appointment of the City\nAdministrator\" did not viola te section 2.02( c) of OMA).\n\nThe Board's April 8, 2024, agenda items pertaining to Ms. Lightfoot set forth the\ngeneral subject matter of the Board's votes to retain her as a legal advisor to assist the Trustees .\nThe general subject matter of the Board's actions was appointing and retaining her in that\ncapacity . Although you argue that the agenda items were insufficient because the Village Code\n\nprovided for neither an \"Additional Legislative Counsel\" nor a \"special investigator,\" the absence\nof such pre-existing positions at the time the agenda was created reflects that the agenda did not\ngive a false impression of the action the Board ended up taking ,because the Board was creating\na new role; it is not as though the motion during the meeting switched the appointment from one\nclearly -defined position to a different one. Moreover, even if \"Additional Legislative Counsel\"\n\ncould be considered to specifically reference the ordinance you furnished for this office's review,\nthe powers of legislative counsel are broad, and include serving as \" legal advisor to the Village\n\nBoard and Village and counsel on matters relating to their legislative duties[.]\" 14 It is not\n14Village of Dolton Ordinance No. 21 -009 (approved September 2, 2021).\n\n\f\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda notice for appointing legal counsel and special investigator","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-81742/","full_text":"June 14, 2024\n\nVia electronic mail\n\nThe Honorable Tiffany A. Henyard\nMayor\nVillage of Dolton\n[street address redacted for site publication -- see original PDF]\nthenyard@vodolton.org\nRE: OMA Request for Review – 2024 PAC 81742\nDear Ms. Henyard:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(b) (West 2022)). For the reasons set forth below, the Public Access\nBureau has determined that no further action is warranted in this matter.\n\nOn June 7,2024,this office received your Request for Review alleging that four\ntrustees (Trustees) of the Village of Dolton Board of Trustees (Board) violated the requirements\nof OMA during the Board's April 8, 2024, special meeting by voting to appoint Ms. Lori\nLightfoot as \"' special investigator'\" in the absence of an agenda item for appointing her to that\nrole. 1 You, the Mayor of Dolton, explain that this meeting was called by the Trustees (a quorum\n\nof the Board), and that you and the two other trustees did not attend. The relevant agenda items\nread:\nB. Discussion and Approval of the appointment of Lori E.\nLightfoot as Additional Legislative Counsel per\n\nRESOLUTION NO. 24 -006.\n\n1 Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n\nC. Discussion and Approval to approve retainer agreement with\nLori E. Lightfoot as Additional Legislative Counsel per\n\nRESOLUTION NO. 24 -007.[2]\nYou allege that after the Trustees and their legislative counsel were informed that\nappointing Ms. Lightfoot as \" Additional Legislative Counsel\" would violate the Village Code,\nthe Trustees \" attempted to amend the agenda item\" 3 during the special meeting by motioning to\nappoint Ms. Lightfoot as \"' special investigator.'\" 4 You contend that \"[ b] y amending the special\n\nmeeting agenda to appoint Lightfoot to a position that does not exist in either the Illinois\nMunicipal Code or the Village Code, the Trustee[ s] violated\" section 2.02 of OMA, 5 which, you\nclaim, \"provides that action taken on special meeting agendas must be germane to the item on the\nagenda.\" 6 The sentence you reference is found in section 2.02(a) of OMA;7 it provides, in\nrelevant part:\n\nPublic notice of any special meeting * * * shall be given at least 48\nhours before such meeting, which notice shall also include the\nagenda for the special * * * meeting, but the validity of any action\ntaken by the public body which is germane to a subject on the\n\nagenda shall not be affected by other errors or omissions in the\nagenda.\nIn making your argument, you compare and contrast the cases Argo High School\nCouncil of Local 571 v. Argo Community High School District, 163 Ill. App. 3d 578 (1987) and\nPeople ex rel. Redell v. Giglio, 238 Ill. App. 3d 141 (1992). You further claim:\n\nBy specifying the position to which they were considering\nappointing Lightfoot, the Trustees tied their own hands and they\ncould only appoint Lightfoot as legislative counsel. The agenda, as\n2 Village of Dolton Board of Trustees, Agenda Items 5.B. and 5.C. (April 8, 2024).\n\n3 It is clear from the video recording of the meeting you provided that the Board amended the\nmotions to appoint and retain Ms. Lightfoot, not the agenda items. Reality Check TV Chicago,\nDOLTON\nBOARD MEETING LIVE\n4/8/ 24,YouTube, at 39: 10 (livestreamed April 8, 2024),\nhttps:// www.youtube. com/ watch? v=9c -GC5oAeW4.\n\n4 Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [1 ].\n55 ILCS 120/ 2.02 (West 2022).\n\n6 Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n\nposted, did not inform the public that Lightfoot would be\nappointed as \" special investigator.\" It simply said she would be\n\nappointed as \" additional legislative counsel.\" However, the\nlegislative counsel ordinance does not even authorize said counsel\nto perform any sort of investigations. * * * Had the Trustees done\ntheir due diligence, they would have realized that they should have\njust cancelled and recalled the meeting on another date with the\ncorrect agenda item.\n\nThe differences in the legislative counsel and \" special\ninvestigator,\" which does not even exist in the Village Code,\npositions are stark, particularly since legislative counsel has no\ninvestigative authority. The agenda items, as posted, are clearly\n\nnot germane to the action taken. As such, the actions taken should\nbe voided, and the Trustees should make an appointment that\ncomplies with the Act, as well as the Illinois Municipal Code and\nthe Village Code. (Emphasis in original.)[8]\nYou enclosed a copy of the legislative counsel ordinance 9 and a link to a video recording of the\nmeeting.10\nAs a threshold matter, section 3.5(a) of OMA 11 provides that \"[ a] person who\nbelieves that a violation of this Act by a public body has occurred may file a request for review\nwith the Public Access Counselor established in the Office of the Attorney General not later than\n\n60 days after the alleged violation.\" (Emphasis added.) Accordingly, a Request for Review of\nan alleged OMA violation is properly lodged against the public body as a whole, rather than\nindividual members.\n\nYour Request for Review thus alleges that the Board violated OMA.\n\nAdditionally, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/1 et seq.\nWest 2022)). See 15 ILCS 205/7(c)(3) (West 2022). Therefore, your allegations about the\nVillage Code and Illinois Municipal Code are not subject to review by this office.\n\n8 Letter from Tiffany A. Henyard to Public Access Counselor, Office of the Attorney General (June\n7, 2024), at [ 2 ].\n9 Village of Dolton Ordinance No. 21 -009 (approved September 2, 2021).\n\nTurning to your allegation that the Board violated OMA by taking final action\nthat was not germane to the items listed on the April 8, 2024, meeting agenda, the current version\n\nof OMA provides \"[ a]ny agenda required under this Section shall set forth the general subject\nmatter of any resolution or ordinance that will be the subject of final action at the meeting.\" 5\nILCS 120/2.02(c) (West 2022). Argo,the 1987 case you cited, was decided long before section\n2.02(c) was added to OMA. In construing a prior version of section 2.02(a) of OMA,12 the court\nnoted that \"' germane' is defined as ' in close relationship, appropriate, relative, pertinent [,]\" and\nthat \"[ c] ourts have expanded the meaning of the word even further, holding that where the title of\n\nan act is general, anything germane to the subject matter passes the constitutional prohibition\nagainst special legislation.\" Argo, 163 Ill. App. 3d at 582 (quoting Black's Law Dictionary 618\n5th ed. 1979)). The court concluded that a school board's final actions to extend the\nsuperintendent's contract, change department chairperson appointments from permanent to\nrotational, and solicit applications for the athletic director position were germane to the agenda\n\nitem \"review and discussion of salaries involving administrators, supervisors, and other\npersonnel not covered by an agreement [,]\" because \"[ d] iscussions of who can authorize salary\nincreases (the rotation system), who will receive a salary, and the length of the superintendent's\ncontract are 'closely related 'and 'pertinent' to a discussion of salaries of personnel not covered by\nagreements.\"\n\nArgo, 163 Ill. App. 3d at 582. Accordingly, the court affirmed the lower court's\n\ndismissal of a complaint seeking to invalidate the school board's final actions. Argo, 163 Ill.\nApp. 3d at 583.\nEven if germaneness was still the applicable standard for providing advance\nnotice of final action, the action taken by the Board on April 8, 2024, to appoint Ms. Lightfoot as\nspecial investigator\" was clearly closely related and pertinent to the agenda items about\n\nappointing her as \" Additional Legislative Counsel,\" as those two terms are just different\nphrasings of the role the Board was hiring Ms. Lightfoot to perform. As of April 5, 2024, it was\nwidely reported and well understood that the Board majority sought to hire Ms. Lightfoot to\ninvestigate the Village administration. 13\n\nYour argument that the wording of the Board's April 8, 2024, agenda items meant\nthat the Board \" could only appoint Lightfoot as legislative counsel\" construes the term\ngermane\" in section 2.02(a) of OMA as interchangeable with \"identical[.]\" The agenda item\nthat the court found insufficient in Giglio —\" and all other matters pertaining to the function of\n\nthe Township\"— is starkly distinguishable from the specified subject matter of the Board's April\n8, 2024, agenda items in that the catch -all agenda item in Giglio was so overgeneralized that it\nin essence, amounted to no agenda at all.\" Giglio,238 Ill. App. 3d at 146. Because Ms.\nLightfoot's precise title was not necessary for the agenda items to be germane to Board's action\n\n12 Ill. Rev. Stat. 1985, ch. 102, par. 42.02.\n13 Ben Bradley, Trustees ask Lightfoot to investigate Dolton mayor, WGN-TV (updated April 5,\n2024, 4: 11 p.m.), https://wgntv.com/news/wgn -investigates/ trustees- ask-lightfoot- to-investigate- dolton -mayor/.\n\nto hire her as a legal advisor for the Trustees, section 2.02(a) of OMA does not provide a basis\nfor invalidating the Board's action to appoint Ms. Lightfoot as \" special investigator.\"\n\nAlthough not mentioned in your Request for Review, section 2.02(c) of OMA,\nwhich was adopted effective January 1, 2013, by Public Act 97 -827, actually sets forth a higher\nstandard for advance notice than mere germaneness. The Board's April 8, 2024, agenda items\nsimilarly satisfy that standard. As discussed above, section 2.02(c) of OMA provides that \"[ a] ny\nagenda required under this Section shall set forth the general subject matter of any resolution or\n\nordinance that will be the subject of final action at the meeting.\" OMA does not contain a\ndefinition of \"general subject matter,\" but the Senate debate on the underlying bill indicates that\nthe General Assembly intended this provision to ensure that agendas provide general notice of all\nmatters upon which a public body would be taking final action:\nT]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\ngeneral notice, if you're going to have and take final action, as\nto generally what's going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nThe Public Access Bureau has determined that \" the General Assembly's use of the term ' general\nsubject matter' signifies that a meeting agenda must set forth the main element(s), rather than the\n\nspecific details, of an item on which the public body intends to take final action.\" Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4 -5 (determining that voting to sign a\nnew city administrator to a five -year contract under the agenda item \" Appointment of the City\nAdministrator\" did not viola te section 2.02(c) of OMA).\n\nThe Board's April 8, 2024, agenda items pertaining to Ms. Lightfoot set forth the\ngeneral subject matter of the Board's votes to retain her as a legal advisor to assist the Trustees.\nThe general subject matter of the Board's actions was appointing and retaining her in that\ncapacity. Although you argue that the agenda items were insufficient because the Village Code\n\nprovided for neither an \"Additional Legislative Counsel\" nor a \"special investigator,\" the absence\nof such pre-existing positions at the time the agenda was created reflects that the agenda did not\ngive a false impression of the action the Board ended up taking,because the Board was creating\na new role; it is not as though the motion during the meeting switched the appointment from one\nclearly -defined position to a different one. Moreover, even if \"Additional Legislative Counsel\"\n\ncould be considered to specifically reference the ordinance you furnished for this office's review,\nthe powers of legislative counsel are broad, and include serving as \" legal advisor to the Village\n\nBoard and Village and counsel on matters relating to their legislative duties[.]\" 14 It is not\n14 Village of Dolton Ordinance No. 21 -009 (approved September 2, 2021)."}
{"id":1465,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-07-10","case_number":null,"request_numbers":["82010"],"title":"PAC closes Palatine Park District meeting notice review after requester files lawsuit","filename":"82010, issued July 10, 2024.pdf","rel_path":null,"word_count":358,"summary":"The requester alleged that the Palatine Park District Board of Park Commissioners took final action at a meeting without sufficient agenda notice. The PAC closed the matter because the requester filed a concurrent lawsuit regarding the same alleged OMA violation.","plain_summary":"A citizen complained that a park district board voted on an item that wasn't properly listed on their meeting agenda. However, because the citizen also filed a lawsuit against the board over the same issue, the Attorney General's office is legally required to stop its investigation. The PAC closed the file without making a decision on whether the law was broken.","holding":"The PAC will take no further action because the requester initiated litigation regarding the same alleged violation, as required by 5 ILCS 120/3.5(f).","legal_question":"Does the filing of a lawsuit regarding an alleged OMA violation require the Public Access Counselor to cease its review of a pending Request for Review?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/3.5(f)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Palatine Park District","requesting_party":"Mr. James M. Vasselli","pac_outcome":"Closed due to concurrent litigation","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester alleged the Board of Park Commissioners took final action on an item not sufficiently noticed on the meeting agenda.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/3.5/3.5_f/82010, issued July 10, 2024.pdf","sha256":"fc4544507b312e8a5d2e90fea81b96e4212ab3198783313d347c6c1b029c7ec5","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","litigation","final action","park district"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"July 10, 2024\n\nVia electronic mail\nMr. James M. Vasselli\n\njames@jmvchicagolaw.com\nVia electronic mail\nMr. Andrew S. Paine\n\nPartner, Tressler LLP\n233 South Wacker Drive, 61st Floor\n\n[street address redacted for site publication -- see original PDF]\napaine@tresslerllp. com\nRE: OMA Request for Review – 2024 PAC 82010\nDear Mr. Vasselli and Mr. Paine:\nThis letter is issued pursuant to section 3.5(f) of the Open Meetings Act ( OMA)\n\n5 ILCS 120/3.5(f) (West 2022)). For the reasons explained below, the Public Access Bureau\nwill take no further action with respect to the above- referenced Request for Review.\nOn July 1, 2024, Mr. James M. Vasselli submitted a Request for Review to the\n\nPublic Access Bureau on behalf of his client, alleging that the Palatine Park District (Park\nDistrict) Board of Park Commissioners ( Board) improperly took final action at its May 13, 2024,\n\nmeeting without having provided sufficient advance notice on the agenda. Yesterday afternoon,\nMr. Andrew S. Paine informed the Public Access Bureau by e- mail that he and his firm represent\n\nthe Park District and that Mr. Vasselli filed suit against the Board concerning the same\nallegations under section 3(a) of OMA ( 5 ILCS 120/ 3(a) ( West 2022)).\nSection 3.5(f) of OMA provides:\nIf the requester files suit under Section 3 with respect to the\n\nsame alleged violation that is the subject of a pending request for\n\n\fMr. James M. Vasselli\nMr. Andrew S. Paine\n\nJuly 10, 2024\nPage 2\nreview, the requester shall notify the Public Access Counselor, and\n\nthe Public Access Counselor shall take no further action with\nrespect to the request for review and shall so notify the public\n\nbody.\nBecause Mr. Vasselli is filing suit under section 3(a) of OMA, section 3.5(f) of\nOMA precludes the Public Access Counselor from taking further action with respect to this\n\nmatter.\nAccordingly, this letter serves to close this matter. If you have questions, please\ncontact me at c.lucentemccullough@ilag. gov.\nVery truly yours,\n\nCHRISTINA LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n82010 o ls pkd\n\ncc:\n\nVia electronic mail\nThe Honorable Terry Ruff\n\nBoard President, Board of Park Commissioners\nPalatine Park District\n\n250 East Wood Street\nPalatine, Illinois 60067\n\nTRuff@palatineparks.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Final action on an unnoted agenda item","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-82010/","full_text":"July 10, 2024\n\nVia electronic mail\nMr. James M. Vasselli\n\njames@jmvchicagolaw.com\nVia electronic mail\nMr. Andrew S. Paine\n\nPartner, Tressler LLP\n233 South Wacker Drive, 61st Floor\n\n[street address redacted for site publication -- see original PDF]\napaine@tresslerllp. com\nRE: OMA Request for Review – 2024 PAC 82010\nDear Mr. Vasselli and Mr. Paine:\nThis letter is issued pursuant to section 3.5(f) of the Open Meetings Act (OMA)\n\n5 ILCS 120/3.5(f) (West 2022)). For the reasons explained below, the Public Access Bureau\nwill take no further action with respect to the above- referenced Request for Review.\nOn July 1, 2024, Mr. James M. Vasselli submitted a Request for Review to the\n\nPublic Access Bureau on behalf of his client, alleging that the Palatine Park District (Park\nDistrict) Board of Park Commissioners (Board) improperly took final action at its May 13, 2024,\n\nmeeting without having provided sufficient advance notice on the agenda. Yesterday afternoon,\nMr. Andrew S. Paine informed the Public Access Bureau by e- mail that he and his firm represent\n\nthe Park District and that Mr. Vasselli filed suit against the Board concerning the same\n\nreview, the requester shall notify the Public Access Counselor, and\n\nthe Public Access Counselor shall take no further action with\nrespect to the request for review and shall so notify the public\n\nbody.\nBecause Mr. Vasselli is filing suit under section 3(a) of OMA, section 3.5(f) of\nOMA precludes the Public Access Counselor from taking further action with respect to this\n\nmatter.\nAccordingly, this letter serves to close this matter. If you have questions, please\ncontact me at c.lucentemccullough@ilag. gov.\nVery truly yours,\n\nCHRISTINA LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n82010 o ls pkd\n\ncc:\n\nVia electronic mail\nThe Honorable Terry Ruff\n\nBoard President, Board of Park Commissioners\nPalatine Park District\n\n250 East Wood Street\nPalatine, Illinois 60067\n\nTRuff@palatineparks.org"}
{"id":1466,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-10-10","case_number":null,"request_numbers":["83040"],"title":"Findlay Fire Protection District violated OMA by interfering with recording of meeting","filename":"83040, issued October 10, 2024.pdf","rel_path":null,"word_count":944,"summary":"A member of the public alleged that the Findlay Fire Protection District interfered with her right to record a public meeting, and the PAC determined that the Board violated the Open Meetings Act by dissuading her from doing so.","plain_summary":"A citizen tried to record a public meeting of the Findlay Fire Protection District, but board members told her she could not record without permission or that it might be illegal. The Attorney General's office found that the board violated the law because the public has a legal right to record open meetings. The board has been asked to allow members of the public to record future meetings.","holding":"The Findlay Fire Protection District violated section 2.05 of the Open Meetings Act by interfering with a member of the public's right to record an open meeting.","legal_question":"Did the Board of Trustees of the Findlay Fire Protection District violate section 2.05 of the Open Meetings Act by interfering with a member of the public's right to record an open meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.05"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of the Findlay Fire Protection District","requesting_party":"William Olson (on behalf of the complainant)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting recording","subject_description":"The right of a member of the public to record an open meeting of a public body.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.05/83040, issued October 10, 2024.pdf","sha256":"3b8eb870310c5843ee0b7ed390164e3e35a78fec076e04941a41d8318913e710","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recording meetings","open meetings act","public participation","fire protection district"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"October 10, 2024\n\nVia electronic mail\nmailto:william.olson@gmai\nl.com\nVia electronic mail\nMr. James S. Sinclair\nStobbs & Sinclair, Ltd.\n[street address redacted for site publication -- see original PDF]\njsinclair@sslalaw. com\n\nRE: OMA Request for Review – 2024 PAC 83040\nDear\n\nand Mr. Sinclair:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2023 Supp.)). For the reasons explained below, the Public\nAccess Bureau concludes that the Board of Trustees ( Board) of the Findlay Fire Protection\nDistrict ( District) violated OMA by interfering with\nability to record the\nDistrict' s September 12, 2024, regular meeting.\nBACKGROUND\nOn September 13, 2024, this office received\nRequest for Review\nalleging that at the Board' s September 12, 2024, meeting, she attempted to record the meeting\nbut \" was advised it was a business meeting, not an open public meeting and the State of\nIllinois requires me to notify when I'm recording such meeting.\" 1\nOn September 19, 2024, this office sent a copy of the Request for Review to the\nDistrict and asked it to provide a written response to the allegation in\nRequest for\n1E- mail from\n\nto mailto:publicaccess@\npublicaccess@atg. state.il.us ( September 13, 2024).\n\natg.state.il.us\n\n\fMr. James S. Sinclair\nOctober 10, 2024\nPage 2\nReview. On September 27, 2024, the District responded. On that same date, this office\nforwarded a copy of the District' s response to\nOn October 2, 2024,\nreplied to the District' s response. On October 3, 2024, the District confirmed that there is no\nrecording of the meeting.\nDETERMINATION\nSection 2.05 of OMA (5 ILCS 120/ 2.05 (West 2022)) provides that \"[ s] ubject to\nthe provisions of Section 8-701 of the Code of Civil Procedure, any person may record the\nproceedings at meetings required to be open by this Act by tape, film or other means. The\nauthority holding the meeting shall prescribe reasonable rules to govern the right to make such\nrecordings.\"\nIn its response to this office, the District stated the discussion regarding the\nrecording of the meeting occurred when the Board addressed emergency service billing records:\nA] volunteer of the District' s ambulance service who now\nhandles billing matters for the District, apparently perceived\nthat\nwas or was intending to record her report to the\nBoard of Trustees and she voiced objection to being recorded.\nBoard President] McClain indicates that he stated to\nthat it was his understanding that under Illinois law a\nperson making a recording of another person was required to\nnotify the person being recorded. ( Presumably, he was referring\nto the provisions of the Criminal Code regarding eavesdropping\nand surreptitious recording of a private conversation ( 720 ILCS\n5/14-2).) At that point, according to Mr. McClain,\nvoluntarily ceased or did not initiate recording and indicated\nthat she would simply make notes from Ms. Martz' report.\nNone of the trustees told\nthat she could not record\nthe meeting. Since\ndid not persist in her desire to\nrecord the meeting after she ceased those efforts of her own\naccord, nothing further transpired on the issue during the\nmeeting.[ 2]\nThe District further conceded that recording of open meetings is permitted under\nthe statute, that permission is not required for a member of the public to record, and that this has\nsince been conveyed to the Board President. However, the District' s response stated that\n\n2Letter from James S. Sinclair to Matthew C. Rogina, Senior Assistant Attorney General, Public\nAccess Bureau ( September 27, 2024), at 1.\n\n\fMr. James S. Sinclair\nOctober 10, 2024\nPage 3\nwas not \" formally prevented from recording the meeting on September 12, 2024 by\naction of the Board of Trustees of the District[.]\" 3\nreply stated that she construed the comments during the meeting as\nrequiring her to stop recording:\nI clearly heard Trustee Tim Uphoff say \" You're recording?\nYou can't do that!\" Perhaps Mr. McClain didn't hear that as he had\ncalled into the meeting and wasn' t physically present.\n2. Tina Martz clearly objected to being recorded, and Mr. McClains\nresponse, as I understood it at the time, was that I couldn' t record\nwithout her consent as I needed everyone' s approval to record the\nmeeting. Please understand it wasn' t a \" willingness\" to stop\nrecording. The room had become tense, and in order to get answers to\nquestions regarding billing I felt it necessary to stop recording.[ 4]\nIt is undisputed that the Board president and a volunteer informed\nthat\nthey had objections to her recording the meeting. The Board President' s comments that\nwould potentially violate the law if she proceeded with the recording clearly dissuaded\nher from recording the meeting even though the Board did not take formal action to prohibit her\nfrom doing so. Accordingly, this office concludes that the Board violated section 2.05 of OMA.\nTo remedy that violation, the Public Access Bureau requests that the Board to permit members of\nthe public to record its open meetings, subject only to the reasonable rules the Board may\nprescribe.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at Matthew. Rogina@ilag. gov or (312) 814-3180.\nVery truly yours,\n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n83040 o 205 improper fd\n3Letter from James S. Sinclair to Matthew C. Rogina, Senior Assistant Attorney General, Public\nAccess Bureau ( September 27, 2024), at 2.\n4E- mail from mailt\n\no:fire\nchick\n0434\n@gm\nail.co\nm\n\nto [ Matthew] Rogina and [ James] Sinclair ( October 2, 2024).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A public body's interference with recording an open meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-83040/","full_text":"October 10, 2024\n\nVia electronic mail\nmailto:william.olson@gmai\nl.com\nVia electronic mail\nMr. James S. Sinclair\nStobbs & Sinclair, Ltd.\n[street address redacted for site publication -- see original PDF]\njsinclair@sslalaw. com\n\nRE: OMA Request for Review – 2024 PAC 83040\nDear\n\nand Mr. Sinclair:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2023 Supp.)). For the reasons explained below, the Public\nAccess Bureau concludes that the Board of Trustees (Board) of the Findlay Fire Protection\nDistrict (District) violated OMA by interfering with\nability to record the\nDistrict's September 12, 2024, regular meeting.\nBACKGROUND\nOn September 13, 2024, this office received\nRequest for Review\nalleging that at the Board's September 12, 2024, meeting, she attempted to record the meeting\nbut \" was advised it was a business meeting, not an open public meeting and the State of\nIllinois requires me to notify when I'm recording such meeting.\" 1\nOn September 19, 2024, this office sent a copy of the Request for Review to the\nDistrict and asked it to provide a written response to the allegation in\n\nReview. On September 27, 2024, the District responded. On that same date, this office\nforwarded a copy of the District's response to\nOn October 2, 2024,\nreplied to the District's response. On October 3, 2024, the District confirmed that there is no\nrecording of the meeting.\nDETERMINATION\nSection 2.05 of OMA (5 ILCS 120/ 2.05 (West 2022)) provides that \"[ s] ubject to\nthe provisions of Section 8-701 of the Code of Civil Procedure, any person may record the\nproceedings at meetings required to be open by this Act by tape, film or other means. The\nauthority holding the meeting shall prescribe reasonable rules to govern the right to make such\nrecordings.\"\nIn its response to this office, the District stated the discussion regarding the\nrecording of the meeting occurred when the Board addressed emergency service billing records:\nA] volunteer of the District's ambulance service who now\nhandles billing matters for the District, apparently perceived\nthat\nwas or was intending to record her report to the\nBoard of Trustees and she voiced objection to being recorded.\nBoard President] McClain indicates that he stated to\nthat it was his understanding that under Illinois law a\nperson making a recording of another person was required to\nnotify the person being recorded. (Presumably, he was referring\nto the provisions of the Criminal Code regarding eavesdropping\nand surreptitious recording of a private conversation (720 ILCS\n5/14-2).) At that point, according to Mr. McClain,\nvoluntarily ceased or did not initiate recording and indicated\nthat she would simply make notes from Ms. Martz' report.\nNone of the trustees told\nthat she could not record\nthe meeting. Since\ndid not persist in her desire to\nrecord the meeting after she ceased those efforts of her own\naccord, nothing further transpired on the issue during the\nmeeting.[ 2]\nThe District further conceded that recording of open meetings is permitted under\nthe statute, that permission is not required for a member of the public to record, and that this has\nsince been conveyed to the Board President. However, the District's response stated that\n\n2 Letter from James S. Sinclair to Matthew C. Rogina, Senior Assistant Attorney General, Public\n\nwas not \" formally prevented from recording the meeting on September 12, 2024 by\naction of the Board of Trustees of the District[.]\" 3\nreply stated that she construed the comments during the meeting as\nrequiring her to stop recording:\nI clearly heard Trustee Tim Uphoff say \" You're recording?\nYou can't do that!\" Perhaps Mr. McClain didn't hear that as he had\ncalled into the meeting and wasn' t physically present.\n2. Tina Martz clearly objected to being recorded, and Mr. McClains\nresponse, as I understood it at the time, was that I couldn' t record\nwithout her consent as I needed everyone's approval to record the\nmeeting. Please understand it wasn' t a \" willingness\" to stop\nrecording. The room had become tense, and in order to get answers to\nquestions regarding billing I felt it necessary to stop recording.[ 4]\nIt is undisputed that the Board president and a volunteer informed\nthat\nthey had objections to her recording the meeting. The Board President's comments that\nwould potentially violate the law if she proceeded with the recording clearly dissuaded\nher from recording the meeting even though the Board did not take formal action to prohibit her\nfrom doing so. Accordingly, this office concludes that the Board violated section 2.05 of OMA.\nTo remedy that violation, the Public Access Bureau requests that the Board to permit members of\nthe public to record its open meetings, subject only to the reasonable rules the Board may\nprescribe.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at Matthew. Rogina@ilag. gov or (312) 814-3180.\nVery truly yours,\n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n83040 o 205 improper fd\n3 Letter from James S. Sinclair to Matthew C. Rogina, Senior Assistant Attorney General, Public\nAccess Bureau (September 27, 2024), at 2.\n4E- mail from mailt\n\no:fire\nchick\n0434\n@gm\nail.co\nm\n\nto [ Matthew] Rogina and [ James] Sinclair (October 2, 2024)."}
{"id":1467,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-03-25","case_number":null,"request_numbers":["84055"],"title":"Chicago Board of Education violated OMA by enforcing unrecorded public comment rules","filename":"84055, issued March 25, 2025.pdf","rel_path":null,"word_count":1769,"summary":"The requester alleged that the Chicago Board of Education violated the Open Meetings Act by denying his request to address the Board based on public comment rules that were not properly established and recorded. The PAC determined that the Board violated section 2.06(g) of the OMA by enforcing public comment restrictions that had not been formally adopted.","plain_summary":"A citizen complained that the Chicago Board of Education prevented him from speaking at a public meeting due to a lottery system and a rule barring people who had spoken at recent meetings. The Attorney General's office found that the Board violated the law because these specific rules for public comment had not been officially adopted and recorded as required by the Open Meetings Act. The Board must now ensure any such rules are properly established before enforcing them.","holding":"The Chicago Board of Education violated the Open Meetings Act by denying a member of the public the opportunity to speak based on rules that were not established and recorded in accordance with section 2.06(g).","legal_question":"Whether the Board of Education violated section 2.06(g) of the Open Meetings Act by enforcing public comment restrictions that were not formally established and recorded.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of the City of Chicago","requesting_party":"Individual requester","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The dispute concerns the validity of public comment rules, specifically a lottery process and frequency restrictions, used by the Board of Education during a public meeting.","ocr_status":"ok","ocr_quality":94,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/84055, issued March 25, 2025.pdf","sha256":"d067b628ea39bbb424606f108538216b7d6428cfe0b77eec5acf666be75b2003","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","school board","meeting rules","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"March 25, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Shanell Bowden\n\nSenior Assistant General Counsel\nBoard of Education of the City of Chicago\n\n[street address redacted for site publication -- see original PDF]\nsmbowden@cps.edu\nRE: OMA Request for Review – 2024 PAC 84055\nDear\n\nand Ms. Bowden:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that that the City of Chicago Board of Education (Board) violated OMA in connection\nwith its September 26, 2024, regular meeting by denying\n\ns request to address\n\nthe Board based on rules that were not established and recorded in accordance with section\n2.06( g) of OMA ( 5 ILCS 120/ 2.06( g) ( West 2022)).\nOn November 25, 2024,\n\nsubmitted a Request for Review alleging that\n\nthe Board violated OMA in connection with its September 26, 2024, meeting by denying his\nrequest to address the Board based on guidelines that require a lottery process and that do not\n\nallow a member of the public to address the Board if that individual had participated in the\npublic comment period at any Board meeting or committee meeting within the last month.\n\nSubsequently, this office forwarded a copy of\n\ns Request for Review to the Board and\n\nasked it to provide a written response to the allegations, along with copies of the agenda and\n\n\fMs. Shanell Bowden\nMarch 25, 2025\n\nPage 2\nminutes of the September 26, 2024, meeting, as well as a copy of the Board's rules regarding\npublic comment that governed the meeting.\nOn December 23, 2024, the Board' s attorney provided this office with a written\n\nresponse, on behalf of the Board, as well as several exhibits, including copies of its agenda and a\ntranscript of its September 26, 2024, meeting, and its rules and guidelines for public comment.\n\nOn December 24, 2024, the Public Access Bureau forwarded a copy of the Board's written\nresponse to\n\nhe replied on January 7, 2025.\nDETERMINATION\nSection 2.06( g) of OMA provides: \" Any person shall be permitted an opportunity\n\nto address public officials under the rules established and recorded by the public body.\" When\nconstruing the meaning of a statutory provision, the primary objective is to ascertain the intent of\n\nthe legislature. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). \" The plain language of the\nstatute is the best indication of that intent, and if that language is clear and unambiguous, it must\n\nbe given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24.\nThe plain language of section 2.06(g) requires that the \"rules\" governing public\ncomment not only be \" established\" but also \" recorded\" by the public body. See Ill. Att'y Gen.\n\nPub. Acc. Op. No. 14-012, issued September 30, 2014, at 6 (a public body may restrict public\ncomment only pursuant to its established and recorded rules, which must tend to accommodate,\n\nrather than unreasonably restrict, the right to address public officials). Because OMA does not\ndefine either \" established\" or \" recorded,\" the terms must be given their ordinary and popularly\n\nunderstood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 15.\nThe dictionary can be used as a resource to ascertain the ordinary and popular meaning of words.\n\nBanco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47.\nBlack's Law Dictionary defines \"establish\" as: \" To settle, make, or fix firmly; to\nenact permanently.\"\n\nBlack' s Law Dictionary 688 ( 11th ed. 2019). \" Enact\" is defined as \"[ t]o\n\nmake into law by authoritative act; to pass.\" Black's Law Dictionary 666 (11th ed. 2019). To\nrecord\" is defined as \"[ t]o deposit ( an original or authentic official copy of a document) with an\n\nauthority.\" Black's Law Dictionary 1527 (11th ed. 2019).\nBased upon the plain language of section 2.06(g), the Attorney General has issued\nseveral binding opinions concluding that section 2.06( g) generally precludes a public body from\n\nimposing restrictions on public comment that are not set out in its established and recorded rules.\nSee, e.g., Ill. Att'y Gen. Pub. Acc. Op. No. 23- 013, issued September 13, 2023, at 7-8 (board\n\nimproperly enforced annotated agenda restricting public comment on personnel matters because\nit was contrary to the plain language of section 2.06( g), which expressly requires a public body\n\nto establish and record its public comment rules); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002,\n\n\fMs. Shanell Bowden\nMarch 25, 2025\n\nPage 3\nissued January 9, 2019, at 5-7 (board improperly enforced a rule on public comment that was not\nestablished and recorded in violation of section 2.06( g)); Ill. Att'y Gen. Pub. Acc. Op. No. 14-\n\n009, issued September 4, 2014, at 6-7 (board violated section 2.06(g) by placing a condition on\npublic comment that was part of its custom and practice but was not part of its established and\n\nrecorded rules).\nThe Public Access Bureau has reviewed the materials provided by\nand the Board. Section 2-4.1 of the Board' s Rules provides:\nAt each regular and special meeting which is open to the\n\npublic, members of the public and employees of the district shall\nbe afforded time, subject to reasonable constraints, to comment to\n\nor ask questions of the Board. The Board President shall establish\nand publish guidelines that will govern the public participation\n\nportion of each meeting.1\nalleges that the Board violated OMA in connection with its September 26, 2024,\nmeeting by denying his request to address the Board based on new guidelines that require a\n\nlottery process and do not allow members of the public to address the Board if that individual\nhad participated in the public comment period at any Board meeting, special meeting, or\n\ncommittee meeting within the last month or at a previous meeting.2\nAlthough this office asked the Board to provide a detailed written response\nto the allegations raised by\n\nin his Request for Review, the Board did not specifically\n\naddress whether the implementation of its September 2024 guidelines violated OMA. However,\nin its response, the Board stated that based upon Rule 2-4.1, the Board President issued new\n\nguidelines on September 18, 2024, which set forth a randomized lottery process for thirty\nspeaking slots for members of the public who had registered to speak at a meeting. The Board\n\nalso explained that the guidelines restrict a person from speaking at more than one meeting per\nmonth and at back- to- back meetings. The Board' s response explained that\n\nwas\n\n1Based upon the Chicago Public Schools website, it appears that Rule 2-4.1 has since been\nrescinded. See https:// www.cps.edu/sites/cps-policy- rules/board- rules/ chapter- 2/. The public participation rule was\nreplaced with Board Rule 1-7: Meeting Procedures, IV Public Participation, which states in part: \" The Board\nPresident shall establish and publish guidelines that will govern the public participation portion of each Board\nMeeting[,]\" recorded within Bylaws, Board Of Education Of The City Of Chicago, revised January 3, 2025.\nhttps://drive.google.com/file/d/1zlBFP7fJFoUX5GuDjNqyh2Wgt- 2Vn5vz/view at 32-33 (last viewed March 18,\n2025).\n2The Chicago Board of Education website includes the Guidelines updated in September 2024 that\nare at issue here. Chicago Board of Education, Scheduled meetings, https:// www.cpsboe.org/meetings (last viewed\nMarch 18, 2025); Guidelines for Public Participation at Chicago Board of Education Meetings,\nhttps:// www.cpsboe. org/content/ documents/ guidelines_ for_public_participation_ at_cboe_september_ 2024.pdf (last\nviewed March 18, 2025).\n\n\fMs. Shanell Bowden\nMarch 25, 2025\n\nPage 4\ndenied an opportunity to speak at the September 26, 2024, regular meeting of the Board because\nhe was afforded an opportunity to speak at the September 18, 2024, special meeting of the\n\nBoard. In his reply,\n\nstates that the new guidelines were not made available to the\n\npublic until September 26, 2024, and amounted to the arbitrary enactment of new rules that the\n\nBoard did not vote to establish and improperly restricted the public's ability to address the Board\nby, among other things, allowing speaking slots to go unfilled.\nAt the time of the September 26, 2024, meeting, section 2-4.1 of the Board' s\n\nRules give the chair of the Board broad discretion to impose unspecified limitations on public\ncomment which were are not \" established and recorded by the public body[ ]\" as required by\n\nsection 2.06(g) of OMA. The Board labels as \" guidelines\" the Board President's public comment\nrequirements that were put into effect in September 2024. Section 2.06( g) of OMA does not\n\npermit the head of a public body to unilaterally issue \" guidelines\" that restrict public comment or\nauthorize a public body to delegate its statutory duty to establish and record rules to the head of\n\nthe public body. Such guidelines are tantamount to ad hoc rules which were neither voted on by\nthe Board nor set forth in its recorded rules. Accordingly, this office concludes that the Board\n\nviolated section 2.06(g) of OMA in connection with its September 26, 2024, meeting by denying\ns right to speak based upon rules that were neither established nor recorded.\nAlthough OMA does not specifically address the types of public comment rules\n\nthat a public body may adopt, those rules must tend to accommodate, rather than unreasonably\nrestrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued\n\nSeptember 30, 2014, at 6; see also I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d\n912, 922 ( N.D. Ill. 2009) ( public bodies may promulgate reasonable \" time, place, and manner\"\n\nrestrictions that are narrowly tailored to serve significant governmental interests). If the Board\nwishes to consider requiring a registration and lottery process, or to give preference to those who\n\ndid not speak at a meeting within the past month, the Board should assess the necessity for such\nrules and the extent to which they would limit the statutory right to address public officials\n\nbefore voting on whether to establish and record them.3\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\n3For example, if the Board enacts a rule giving preference to those who did not speak at a meeting\nwithin the past thirty days, that rule should be narrowly tailored so that if there are open slots, those who spoke at a\nprior meeting should not be restricted from addressing the Board.\n\n\fMs. Shanell Bowden\nMarch 25, 2025\n\nPage 5\nplease contact me at 312-814-5201 or at edie.steinberg@ilag.gov.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n84055 o 206g pub comment improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Public comment rules at a school board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-84055/","full_text":"March 25, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Shanell Bowden\n\nSenior Assistant General Counsel\nBoard of Education of the City of Chicago\n\n[street address redacted for site publication -- see original PDF]\nsmbowden@cps.edu\nRE: OMA Request for Review – 2024 PAC 84055\nDear\n\nand Ms. Bowden:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2022)). For the reasons that follow, the Public Access Bureau\n\nconcludes that that the City of Chicago Board of Education (Board) violated OMA in connection\nwith its September 26, 2024, regular meeting by denying\n\ns request to address\n\nthe Board based on rules that were not established and recorded in accordance with section\n2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2022)).\nOn November 25, 2024,\n\nsubmitted a Request for Review alleging that\n\nthe Board violated OMA in connection with its September 26, 2024, meeting by denying his\nrequest to address the Board based on guidelines that require a lottery process and that do not\n\nallow a member of the public to address the Board if that individual had participated in the\npublic comment period at any Board meeting or committee meeting within the last month.\n\nSubsequently, this office forwarded a copy of\n\ns Request for Review to the Board and\n\nasked it to provide a written response to the allegations, along with copies of the agenda and\n\nminutes of the September 26, 2024, meeting, as well as a copy of the Board's rules regarding\npublic comment that governed the meeting.\nOn December 23, 2024, the Board's attorney provided this office with a written\n\nresponse, on behalf of the Board, as well as several exhibits, including copies of its agenda and a\ntranscript of its September 26, 2024, meeting, and its rules and guidelines for public comment.\n\nOn December 24, 2024, the Public Access Bureau forwarded a copy of the Board's written\nresponse to\n\nhe replied on January 7, 2025.\nDETERMINATION\nSection 2.06(g) of OMA provides: \" Any person shall be permitted an opportunity\n\nto address public officials under the rules established and recorded by the public body.\" When\nconstruing the meaning of a statutory provision, the primary objective is to ascertain the intent of\n\nthe legislature. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). \" The plain language of the\nstatute is the best indication of that intent, and if that language is clear and unambiguous, it must\n\nbe given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24.\nThe plain language of section 2.06(g) requires that the \"rules\" governing public\ncomment not only be \" established\" but also \" recorded\" by the public body. See Ill. Att'y Gen.\n\nPub. Acc. Op. No. 14-012, issued September 30, 2014, at 6 (a public body may restrict public\ncomment only pursuant to its established and recorded rules, which must tend to accommodate,\n\nrather than unreasonably restrict, the right to address public officials). Because OMA does not\ndefine either \" established\" or \" recorded,\" the terms must be given their ordinary and popularly\n\nunderstood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 15.\nThe dictionary can be used as a resource to ascertain the ordinary and popular meaning of words.\n\nBanco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47.\nBlack's Law Dictionary defines \"establish\" as: \" To settle, make, or fix firmly; to\nenact permanently.\"\n\nBlack's Law Dictionary 688 (11th ed. 2019). \" Enact\" is defined as \"[ t]o\n\nmake into law by authoritative act; to pass.\" Black's Law Dictionary 666 (11th ed. 2019). To\nrecord\" is defined as \"[ t]o deposit (an original or authentic official copy of a document) with an\n\nauthority.\" Black's Law Dictionary 1527 (11th ed. 2019).\nBased upon the plain language of section 2.06(g), the Attorney General has issued\nseveral binding opinions concluding that section 2.06(g) generally precludes a public body from\n\nimposing restrictions on public comment that are not set out in its established and recorded rules.\nSee, e.g., Ill. Att'y Gen. Pub. Acc. Op. No. 23- 013, issued September 13, 2023, at 7-8 (board\n\nimproperly enforced annotated agenda restricting public comment on personnel matters because\nit was contrary to the plain language of section 2.06(g), which expressly requires a public body\n\nto establish and record its public comment rules); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002,\n\nissued January 9, 2019, at 5-7 (board improperly enforced a rule on public comment that was not\nestablished and recorded in violation of section 2.06(g)); Ill. Att'y Gen. Pub. Acc. Op. No. 14-\n\n009, issued September 4, 2014, at 6-7 (board violated section 2.06(g) by placing a condition on\npublic comment that was part of its custom and practice but was not part of its established and\n\nrecorded rules).\nThe Public Access Bureau has reviewed the materials provided by\nand the Board. Section 2-4.1 of the Board's Rules provides:\nAt each regular and special meeting which is open to the\n\npublic, members of the public and employees of the district shall\nbe afforded time, subject to reasonable constraints, to comment to\n\nor ask questions of the Board. The Board President shall establish\nand publish guidelines that will govern the public participation\n\nportion of each meeting.1\nalleges that the Board violated OMA in connection with its September 26, 2024,\nmeeting by denying his request to address the Board based on new guidelines that require a\n\nlottery process and do not allow members of the public to address the Board if that individual\nhad participated in the public comment period at any Board meeting, special meeting, or\n\ncommittee meeting within the last month or at a previous meeting.2\nAlthough this office asked the Board to provide a detailed written response\nto the allegations raised by\n\nin his Request for Review, the Board did not specifically\n\naddress whether the implementation of its September 2024 guidelines violated OMA. However,\nin its response, the Board stated that based upon Rule 2-4.1, the Board President issued new\n\nguidelines on September 18, 2024, which set forth a randomized lottery process for thirty\nspeaking slots for members of the public who had registered to speak at a meeting. The Board\n\nalso explained that the guidelines restrict a person from speaking at more than one meeting per\nmonth and at back- to- back meetings. The Board's response explained that\n\nwas\n\n1 Based upon the Chicago Public Schools website, it appears that Rule 2-4.1 has since been\nrescinded. See https:// www.cps.edu/sites/cps-policy- rules/board- rules/ chapter- 2/. The public participation rule was\nreplaced with Board Rule 1-7: Meeting Procedures, IV Public Participation, which states in part: \" The Board\nPresident shall establish and publish guidelines that will govern the public participation portion of each Board\nMeeting[,]\" recorded within Bylaws, Board Of Education Of The City Of Chicago, revised January 3, 2025.\nhttps://drive.google.com/file/d/1zlBFP7fJFoUX5GuDjNqyh2Wgt- 2 Vn5vz/view at 32-33 (last viewed March 18,\n2025).\n2 The Chicago Board of Education website includes the Guidelines updated in September 2024 that\nare at issue here. Chicago Board of Education, Scheduled meetings, https:// www.cpsboe.org/meetings (last viewed\nMarch 18, 2025); Guidelines for Public Participation at Chicago Board of Education Meetings,\nhttps:// www.cpsboe. org/content/ documents/ guidelines_ for_public_participation_ at_cboe_september_ 2024.pdf (last\n\ndenied an opportunity to speak at the September 26, 2024, regular meeting of the Board because\nhe was afforded an opportunity to speak at the September 18, 2024, special meeting of the\n\nBoard. In his reply,\n\nstates that the new guidelines were not made available to the\n\npublic until September 26, 2024, and amounted to the arbitrary enactment of new rules that the\n\nBoard did not vote to establish and improperly restricted the public's ability to address the Board\nby, among other things, allowing speaking slots to go unfilled.\nAt the time of the September 26, 2024, meeting, section 2-4.1 of the Board's\n\nRules give the chair of the Board broad discretion to impose unspecified limitations on public\ncomment which were are not \" established and recorded by the public body[ ]\" as required by\n\nsection 2.06(g) of OMA. The Board labels as \" guidelines\" the Board President's public comment\nrequirements that were put into effect in September 2024. Section 2.06(g) of OMA does not\n\npermit the head of a public body to unilaterally issue \" guidelines\" that restrict public comment or\nauthorize a public body to delegate its statutory duty to establish and record rules to the head of\n\nthe public body. Such guidelines are tantamount to ad hoc rules which were neither voted on by\nthe Board nor set forth in its recorded rules. Accordingly, this office concludes that the Board\n\nviolated section 2.06(g) of OMA in connection with its September 26, 2024, meeting by denying\ns right to speak based upon rules that were neither established nor recorded.\nAlthough OMA does not specifically address the types of public comment rules\n\nthat a public body may adopt, those rules must tend to accommodate, rather than unreasonably\nrestrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued\n\nSeptember 30, 2014, at 6; see also I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d\n912, 922 (N.D. Ill. 2009) (public bodies may promulgate reasonable \" time, place, and manner\"\n\nrestrictions that are narrowly tailored to serve significant governmental interests). If the Board\nwishes to consider requiring a registration and lottery process, or to give preference to those who\n\ndid not speak at a meeting within the past month, the Board should assess the necessity for such\nrules and the extent to which they would limit the statutory right to address public officials\n\nbefore voting on whether to establish and record them.3\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\n3 For example, if the Board enacts a rule giving preference to those who did not speak at a meeting\nwithin the past thirty days, that rule should be narrowly tailored so that if there are open slots, those who spoke at a\n\nplease contact me at 312-814-5201 or at edie.steinberg@ilag.gov.\nVery truly yours,\n\nEDIE STEINBERG\nSenior Assistant Attorney General\n\nPublic Access Bureau\n84055 o 206g pub comment improper sd"}
{"id":1468,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-01-02","case_number":null,"request_numbers":["84086"],"title":"Chicago Board of Ethics violated OMA by discussing advisory opinion in closed session","filename":"84086, issued January 2, 2026.pdf","rel_path":null,"word_count":1892,"summary":"A requester alleged that the City of Chicago Board of Ethics improperly discussed an advisory opinion in a closed session during its September 30, 2024, meeting. The PAC determined that the discussion did not fall under the cited OMA exceptions and violated the Act.","plain_summary":"A citizen complained that the Chicago Board of Ethics held a private meeting to discuss a specific advisory opinion, which the citizen believed should have been public. The Attorney General's office reviewed the meeting records and agreed that the Board broke the law by keeping that discussion private. The Board has been asked to release the minutes and recording of that specific portion of the meeting.","holding":"The City of Chicago Board of Ethics violated the Open Meetings Act by discussing an advisory opinion during a closed session.","legal_question":"Whether the City of Chicago Board of Ethics properly invoked OMA exceptions 2(c)(1) and 2(c)(4) to discuss an advisory opinion in closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)","5 ILCS 120/2(c)(4)"],"public_body":"City of Chicago Board of Ethics","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Ethics discussed an advisory opinion (Case 24019.Q) in a closed session that the PAC determined was not permitted under the Open Meetings Act.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_1/84086, issued January 2, 2026.pdf","sha256":"fec7df7dbf0f4a9c34d5154f924a5d3a3d03b1537c681367e9b5221029fe4d43","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","board of ethics","advisory opinion","meeting minutes","open meetings act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nJanuary 2, 2026\n\nVia electronic mail\n\nVia electronic mail\nMr. Steven I. Berlin\nExecutive Director\n\nCity of Chicago Board of Ethics\n740 North Sedgwick, Suite 500\nChicago, Illinois 60654\n\nsteve.berlin@cityofchicago.org\nRE:\n\nDear\n\nOMA Request for Review — 2024 PAC 84086\n\nand Mr. Berlin:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2024)).\n\nBACKGROUND\n\nOn November 27, 2024,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the City of Chicago ( City) Board of Ethics ( Board) violated\nOMA at its September 30, 2024, meeting by improperly discussing in closed session a query\nreport related to Case 24019. Q. He asserted that discussion of this report did not fall within\n\nsections 2( c)( 1) and 2( c)( 4) of OMA, 1 the exceptions cited as the basis for closing the meeting.\nOn December 9, 2024, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its September 30, 2024, meeting\n15 ILCS\n\n120/ 2( c)( 1), (\n\nc)( 4) ( West 2023 Supp.).\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: ( 217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: ( 618) 529- 6416\n\ncan reach us by using the 7- 1- 1 relay service.\n\nIllinoisAttorneyGeneral.\n\ngov\n\nDrive, Suite C\n\nIllinois 62903\n\n\fMr. Steven I. Berlin\n\nJanuary 2, 2026\nPage 2\n\nagenda, open and closed session minutes, and closed session verbatim recording for this office' s\nconfidential review, together with a written response to\n\nOMA allegations.\n\nOn\n\nDecember 19, 2024, this office received the requested materials.\n\nIn its written response, the\n\nBoard asserted it properly discussed the employment or performance of specific City employees\nin closed session. This office construed that assertion as citing section 2( c)( 1) as the basis for its\n\nclosed session discussion of Case 24019. Q. On December 20, 2024, this office forwarded a copy\nof the Board' s response to\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\"\n\n5 ILCS 120/ 1 ( West 2024). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 1989).\nIn his Request for Review,\n\nstated that Case 24019. Q concerned a request\n\nfrom a lobbyist for an advisory opinion on whether the lobbyist's client could invite several City\nofficials and employees on a boat tour of a potential development site, and that a redacted\nversion of the requested opinion has been posted on the City' s website.\nargued that any\ndiscussion concerning this topic or the query report did not fall within section 2( c)( 1) of OMA\n\nbecause lobbyists are not City employees or contractors.\nSection 2( c)( 1) of OMA permits a public body to hold closed session to discuss,\nin pertinent part:\nThe appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees, specific\nindividuals who serve as independent contractors in a park,\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\nvalidity.\n\nThe Attorney General has concluded that \" the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\nsession\n\npursuant\n\nto section\n\n2( c)( 1).\"\n\nIll. Att'y Gen. Pub. Acc. Op. No. 16- 013, issued December\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMr. Steven I. Berlin\n\nJanuary 2, 2026\nPage 3\n\n23, 2016, at 4.\n\nRather, \"\n\ndiscuss the relative\n\nsection 2( c)( 1) of OMA' is intended to permit public bodies to candidly\n\nmerits\n\nof individual\n\nemployees,\n\nor\n\nthe conduct\n\nof individual\n\nemployees.'\"\n\nIll.\n\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 ( quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\nissued July 11, 2012, at 3); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7,\n2011,\n\nthat \"[ t] he use of the term ' specific employees'\n\nat 4 ( concluding\n\nin section 2( c)( 1)\n\nsignificantly limits the scope of the exception\" to \" the hiring merits, performance, conduct or\nterms of employment\n\nof individual employees.\").\n\nIn its response to this office, the Board stated that \" queries\" and \" advisory\nopinions\" both refer to formal written opinions signed by the Board's Executive Director. The\nBoard acknowledged that it had discussed in closed session the advisory opinion that was issued\n\nin Case 24019. Q. This advisory opinion addressed two questions: Whether a lobbyist's client\ncould, in accordance\n\nwith the City' s Governmental\n\nEthics Ordinance, \" offer gifts and a business -\n\nrelated boat tour of a potential real estate development site to several City of Chicago employees\nand officials\"\n\nand, \" if so, how should these lobbyists report this on their appropriate lobbyist\n\nquarterly activity report. i2 The Board argued that discussion of these questions pertained to the\nemployment or performance of specific City employees \" who had already been invited on this\nboat tour,\n\nas\n\nyou\n\ncan\n\ntell by the letter sent to me\n\non\n\nAugust 22, 2024[.]\n\ni3\n\nAdditionally, the Board\n\nargued that \"[ t] he fact that the request for this opinion came to the Board from the lobbyist is\n\nirrelevant: these lobbyists were clearly concerned that their client's actions not cause any City\nemployee or official to violate the Ordinance. i4\n\nHaving reviewed the September 30, 2024, meeting materials, including the closed\nsession recording, the Board did not discuss the employment of specific City employees in\n\nconnection with Case 24019. Q. The questions presented in the advisory opinion asked whether\nany City employees could accept a boat tour invitation or gifts and, if so, what would be the\nlobbyist' s requirements.\n26, 2024.\n\nThe opinion was requested on August 22, 2024, and issued on August\n\nThe Board' s response to this office argued that the closed session discussion\n\nconcerned the performance of the invited City employees, emphasizing these employees could\nhave been disciplined if they had been accused of and found to have accepted improper gifts.\nBut the advisory\n\nopinion\n\ndid not address\n\nsuch conduct — it was requested for the purpose of\n\ndetermining whether it would be permissible for City employees to accept the invitations and\n\ntoken gifts before they did so.\n\n2Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( December 20, 2024), at [ 1].\n3Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( December 20, 2024), at [ 1].\n4Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( December 20, 2024), at [ 1].\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMr. Steven I. Berlin\n\nJanuary 2, 2026\nPage 4\n\nAlthough some City employees had already accepted invitations and attended the\ntour by the time of the September 30, 2024, meeting and the Board briefly addressed who\n\nattended by vaguely -worded position titles, the Board did not discuss the actual employment,\nperformance, compensation, or discipline of those individuals. Rather, this office's review found\nthat the Board's discussion focused on the advisory opinion, which considered only the\nhypothetical situation of whether it would be a violation of the ethics ordinance for any City\nemployee or official to accept a boat tour invite. While section 2( c)( 1) could apply to a\ndiscussion about whether any specific employees potentially violated their ethical obligations by\naccepting an invite and attending a boat tour, the discussion that occurred on September 30,\n2024, did not concern how any of the invited employees actually performed their public duties or\nwhether those employees should be disciplined for their conduct. Accordingly, section 2( c)( 1) of\nOMA did not authorize the Board to hold the discussion\n\nin closed session.\n\nThe Board' s response to this office also argued that its actions were consistent\n\nwith how ethics commissions and ethics officers nationwide conduct public business, adding that\na State law excludes meetings of the Illinois Executive Ethics Commission from the\n\nrequirements of OMA. The Board argued that \"to require this Board ( and by extension, others\nlike it) to discuss advisory\n\nopinions\n\nin public\n\nsession * * *\n\nwould be impractical if not\n\nimpossible\" and discourage people from seeking guidance and chill the Board from issuing\n\nadvisory opinions.5\nAlthough the State' s Executive Commission is \" exempt from the provisions of\nthe Open Meetings Act[,]\" ( 5 ILCS 430/ 20- 95( c) ( West 2024)),\n\nthere is no similar statutory\n\nprovision exempting local government ethics boards from the requirements of OMA. OMA\nexpressly provides that \"[ a] 11 meetings of public bodies shall be open to the public unless\nexcepted in subsection ( c) and closed in accordance with Section 2a.\" Because neither section\n\n2( c)( 1) nor or any other exception in section 2( c) generally authorizes the Board to discuss\nadvisory opinions in closed session, we cannot construe OMA to contain such a provision.\nHayashi v. Illinois Department\n\nof Financial &\n\nProfessional Regulation, 2014 IL 116023, ¶\n\n16 ( a\n\nreviewing body \" may not depart from the plain language by reading into the statute exceptions,\nlimitations, or conditions that the legislature did not express.\").\nAccordingly, this office\nconcludes that the Board violated OMA by discussing an advisory opinion during the closed\n\nsession portion of its September 30, 2024, meeting. To remedy this violation, this office requests\nthe Board disclose the portions of the minutes and verbatim recording of its September 30, 2024,\n\nclosed session that pertained to Case 24019.Q.\n\n5Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( December 20, 2024), at [ 2].\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMr. Steven I. Berlin\n\nJanuary 2, 2026\nPage 5\n\nThe Public Access Counselor has determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nDeputy Bureau Chief\nPublic Access Bureau\n84086 o 2c1 improper mun\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of an advisory opinion","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-84086/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nJanuary 2, 2026\n\nVia electronic mail\n\nVia electronic mail\nMr. Steven I. Berlin\nExecutive Director\n\nCity of Chicago Board of Ethics\n740 North Sedgwick, Suite 500\nChicago, Illinois 60654\n\nsteve.berlin@cityofchicago.org\nRE:\n\nDear\n\nOMA Request for Review — 2024 PAC 84086\n\nand Mr. Berlin:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2024)).\n\nBACKGROUND\n\nOn November 27, 2024,\n\nsubmitted a Request for Review to the\n\nPublic Access Bureau alleging that the City of Chicago (City) Board of Ethics (Board) violated\nOMA at its September 30, 2024, meeting by improperly discussing in closed session a query\nreport related to Case 24019. Q. He asserted that discussion of this report did not fall within\n\nsections 2(c)(1) and 2(c)(4) of OMA, 1 the exceptions cited as the basis for closing the meeting.\nOn December 9, 2024, this office forwarded a copy of the Request for Review to\n\nthe Board and asked it to provide this office with copies of its September 30, 2024, meeting\n15 ILCS\n\n120/ 2(c)(1), (c)(4) (West 2023 Supp.).\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: (217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: (312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: (618) 529- 6416\n\nagenda, open and closed session minutes, and closed session verbatim recording for this office's\nconfidential review, together with a written response to\n\nOMA allegations.\n\nOn\n\nDecember 19, 2024, this office received the requested materials.\n\nIn its written response, the\n\nBoard asserted it properly discussed the employment or performance of specific City employees\nin closed session. This office construed that assertion as citing section 2(c)(1) as the basis for its\n\nclosed session discussion of Case 24019. Q. On December 20, 2024, this office forwarded a copy\nof the Board's response to\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\"\n\n5 ILCS 120/ 1 (West 2024). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\"\n\nGosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nIn his Request for Review,\n\nstated that Case 24019. Q concerned a request\n\nfrom a lobbyist for an advisory opinion on whether the lobbyist's client could invite several City\nofficials and employees on a boat tour of a potential development site, and that a redacted\nversion of the requested opinion has been posted on the City's website.\nargued that any\ndiscussion concerning this topic or the query report did not fall within section 2(c)(1) of OMA\n\nbecause lobbyists are not City employees or contractors.\nSection 2(c)(1) of OMA permits a public body to hold closed session to discuss,\nin pertinent part:\nThe appointment, employment, compensation, discipline,\n\nperformance, or dismissal of specific employees, specific\nindividuals who serve as independent contractors in a park,\nrecreational, or educational setting, or specific volunteers of the\npublic body or legal counsel for the public body, including hearing\n\ntestimony on a complaint lodged against an employee, a specific\nindividual who serves as an independent contractor in a park,\n\nrecreational, or educational setting, or a volunteer of the public\nbody or against legal counsel for the public body to determine its\nvalidity.\n\nThe Attorney General has concluded that \" the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\nsession\n\npursuant\n\nto section\n\n23, 2016, at 4.\n\nRather, \"\n\ndiscuss the relative\n\nsection 2(c)(1) of OMA' is intended to permit public bodies to candidly\n\nmerits\n\nof individual\n\nemployees,\n\nor\n\nthe conduct\n\nof individual\n\nemployees.'\"\n\nIll.\n\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\nissued July 11, 2012, at 3); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7,\n2011,\n\nthat \"[ t] he use of the term ' specific employees'\n\nat 4 (concluding\n\nin section 2(c)(1)\n\nsignificantly limits the scope of the exception\" to \" the hiring merits, performance, conduct or\nterms of employment\n\nof individual employees.\").\n\nIn its response to this office, the Board stated that \" queries\" and \" advisory\nopinions\" both refer to formal written opinions signed by the Board's Executive Director. The\nBoard acknowledged that it had discussed in closed session the advisory opinion that was issued\n\nin Case 24019. Q. This advisory opinion addressed two questions: Whether a lobbyist's client\ncould, in accordance\n\nwith the City's Governmental\n\nEthics Ordinance, \" offer gifts and a business -\n\nrelated boat tour of a potential real estate development site to several City of Chicago employees\nand officials\"\n\nand, \" if so, how should these lobbyists report this on their appropriate lobbyist\n\nquarterly activity report. i2 The Board argued that discussion of these questions pertained to the\nemployment or performance of specific City employees \" who had already been invited on this\nboat tour,\n\nas\n\nyou\n\ncan\n\ntell by the letter sent to me\n\non\n\nAugust 22, 2024[.]\n\ni3\n\nAdditionally, the Board\n\nargued that \"[ t] he fact that the request for this opinion came to the Board from the lobbyist is\n\nirrelevant: these lobbyists were clearly concerned that their client's actions not cause any City\nemployee or official to violate the Ordinance. i4\n\nHaving reviewed the September 30, 2024, meeting materials, including the closed\nsession recording, the Board did not discuss the employment of specific City employees in\n\nconnection with Case 24019. Q. The questions presented in the advisory opinion asked whether\nany City employees could accept a boat tour invitation or gifts and, if so, what would be the\nlobbyist's requirements.\n26, 2024.\n\nThe opinion was requested on August 22, 2024, and issued on August\n\nThe Board's response to this office argued that the closed session discussion\n\nconcerned the performance of the invited City employees, emphasizing these employees could\nhave been disciplined if they had been accused of and found to have accepted improper gifts.\nBut the advisory\n\nopinion\n\ndid not address\n\nsuch conduct — it was requested for the purpose of\n\ndetermining whether it would be permissible for City employees to accept the invitations and\n\ntoken gifts before they did so.\n\n2 Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (December 20, 2024), at [ 1].\n3 Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (December 20, 2024), at [ 1].\n4 Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (December 20, 2024), at [ 1].\n\nAlthough some City employees had already accepted invitations and attended the\ntour by the time of the September 30, 2024, meeting and the Board briefly addressed who\n\nattended by vaguely -worded position titles, the Board did not discuss the actual employment,\nperformance, compensation, or discipline of those individuals. Rather, this office's review found\nthat the Board's discussion focused on the advisory opinion, which considered only the\nhypothetical situation of whether it would be a violation of the ethics ordinance for any City\nemployee or official to accept a boat tour invite. While section 2(c)(1) could apply to a\ndiscussion about whether any specific employees potentially violated their ethical obligations by\naccepting an invite and attending a boat tour, the discussion that occurred on September 30,\n2024, did not concern how any of the invited employees actually performed their public duties or\nwhether those employees should be disciplined for their conduct. Accordingly, section 2(c)(1) of\nOMA did not authorize the Board to hold the discussion\n\nin closed session.\n\nThe Board's response to this office also argued that its actions were consistent\n\nwith how ethics commissions and ethics officers nationwide conduct public business, adding that\na State law excludes meetings of the Illinois Executive Ethics Commission from the\n\nrequirements of OMA. The Board argued that \"to require this Board (and by extension, others\nlike it) to discuss advisory\n\nopinions\n\nin public\n\nsession * * *\n\nwould be impractical if not\n\nimpossible\" and discourage people from seeking guidance and chill the Board from issuing\n\nadvisory opinions.5\nAlthough the State's Executive Commission is \" exempt from the provisions of\nthe Open Meetings Act[,]\" (5 ILCS 430/ 20- 95(c) (West 2024)),\n\nthere is no similar statutory\n\nprovision exempting local government ethics boards from the requirements of OMA. OMA\nexpressly provides that \"[ a] 11 meetings of public bodies shall be open to the public unless\nexcepted in subsection (c) and closed in accordance with Section 2a.\" Because neither section\n\n2(c)(1) nor or any other exception in section 2(c) generally authorizes the Board to discuss\nadvisory opinions in closed session, we cannot construe OMA to contain such a provision.\nHayashi v. Illinois Department\n\nof Financial &\n\nProfessional Regulation, 2014 IL 116023, ¶\n\n16 (a\n\nreviewing body \" may not depart from the plain language by reading into the statute exceptions,\nlimitations, or conditions that the legislature did not express.\").\nAccordingly, this office\nconcludes that the Board violated OMA by discussing an advisory opinion during the closed\n\nsession portion of its September 30, 2024, meeting. To remedy this violation, this office requests\nthe Board disclose the portions of the minutes and verbatim recording of its September 30, 2024,\n\nclosed session that pertained to Case 24019.Q.\n\n5 Letter from Steven I. Berlin, Executive Director, City of Chicago Board of Ethics, to Teresa Lim,\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (December 20, 2024), at [ 2].\n\nThe Public Access Counselor has determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nDeputy Bureau Chief\nPublic Access Bureau\n84086 o 2c1 improper mun\n\nOffice of the Illinois\n\nAttorney\n\nGeneral"}
{"id":1469,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-10-20","case_number":null,"request_numbers":["84125"],"title":"Village of River Forest did not violate OMA for informal Casual Conversation gathering","filename":"84125, issued October 20, 2025.pdf","rel_path":null,"word_count":2905,"summary":"The requester alleged that a 'Casual Conversations' event held by the Village President constituted an improperly noticed public meeting under OMA because a quorum of the Board of Trustees was present. The PAC determined that the gathering did not constitute a 'meeting' subject to OMA requirements.","plain_summary":"A citizen alleged that a village president's informal public \"Casual Conversation\" event, attended by a majority of a quorum of village trustees, constituted an improper closed meeting under the Open Meetings Act. The PAC determined that because the trustees present did not speak, deliberate, or exchange information with each other or actively participate in the discussion, the gathering did not meet OMA's definition of a \"meeting,\" distinguishing it from a prior case where attending board members had actively participated. The PAC found no violation but cautioned that trustees attending such gatherings risk the appearance of impropriety.","holding":"The Village of River Forest Board of Trustees did not violate the Open Meetings Act in connection with the November 23, 2024, gathering.","legal_question":"Whether a series of informal 'Casual Conversations' attended by a quorum of the Village Board of Trustees constituted a 'meeting' under the Open Meetings Act requiring public notice and an agenda.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of River Forest","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester alleged that informal gatherings hosted by the Village President were improperly noticed public meetings.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/84125, issued October 20, 2025.pdf","sha256":"554faaf7f5ffad3d70fafa740a7a4f24c0a1992786793c025433a54abebf4b41","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["quorum","public meeting","open meetings act","village board","notice requirements"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nOctober 20, 2025\n\nVia electronic mail\n\nVia electronic mail\nMr. Matthew Walsh\nVillage Administrator\nVillage of River Forest\n400 Park Avenue\nRiver Forest, Illinois 60305\nmwalsh@vrf.us\nRE: OMA Request for Review- 2024 PAC 84125\nDear- and Mr. Walsh:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA). 1 For the reasons explained below, the Public Access Bureau concludes that the Village\nof River Forest (Village) Board of Trustees (Board) did not violate OMA in connection with a\nNovember 23, 2024, gathering.\n\nBACKGROUND\nOn December 2, 2024, the Public Access Bureau received\n-Request for Review alleging that the Village President holds \"a quarterly series of off­\nsite meetings\" called \"Casual Conversations with Village President Cathy Adduci\" during which\nshe asserted \"matters of Village Policy, including zoning, development, policing, and traffic,\n\n1\n\n5 ILCS 120/3.S(e) (West 2024).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 2\nwere discussed.\" 2 - contended that the Board violated OMA during the November\n23, 2024, Casual Conversations with the Village President gathering because a quorum of the\nBoard was � event without adhering to OMA's requirements, such as timely posting\nan agenda. -- also asserted that before the November 23, 2024, gathering, \"the Village\npresident approached at least two of the trustees and told them they were not permitted to speak\nat the meeting for fear of 'an OMA violation.\"' 3\nOn December 23, 2024, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing whether the November 23, 2024,\ngathering constituted a \"meeting,\" as that term is defined in section 1.02 of OMA. 4 On January\n3, 2025, this office received the requested response. On January 6, 2025, this office forwarded a\ncopy of the Board's response to-; she replied on January 8, 2025.\nDETERMINATION\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 2(a) of OMA 5 provides that \"[a]ll meetings of public bodies shall be\nopen to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nAmong other things, OMA also requires public bodies to provide advance notice of meetings,\npermit an opportunity for public comment, and approve and maintain minutes. 6\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA:\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\nto Illinois Attorney General, Public Access Counselor, Public\n\nE-mail from\nAccess Bureau (December 1, 2024).\n2\n\n3 E-mail fro�o Illinois Attorney General, Public Access Counselor, Public\n\nAccess Bureau (December 1, 2024).\n4\n\n5 ILCS 120/1.02 (West 2024).\n\n5 5 ILCS 140/2(a) (West 2024).\n6 5 ILCS 120/2.02, 2.06(a), 2.06(g) (West 2024).\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 3\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nAccording to the Village's website, the Board is comprised of the Village\npresident and six trustees. 7 Four members of the Board constitutes a quorum, and a majority of\nthe quorum is three members. Therefore, a gathering in which at least three members of the\nBoard engaged in deliberative discussions of public business would ordinarily constitute a\nmeeting of the Board that would be subject to the procedural safeguards and requirements of\nOMA.\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (2003) (acknowledging that OMA is not \"triggered every time\npublic officials meet and converse\"). \"Rather, the Act is designed to prohibit secret deliberation\nand action on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980).\nThe Office of the Attorney General has stated, \"whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 7. \"In theory, there is\nno absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application of' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" amongst themselves. Ill.\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11; see also Nabhani v.\nCoglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for\npurposes of OMA when there is \"no examining or weighing of reasons for or against a course of\naction, no exchange of facts preliminary to a decision, [and] no attempt to reach accord on a\nspecific matter of public business.\").\nThe Attorney General has also noted that \"[d]eliberation * * * connotes not only\ncollective discussion, but the collective acquisition and exchange of facts preliminary to the\nultimate decision.\" Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 125 (quoting\nSacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41,\n7River Forest, Village Board, https://www.vrf.us/boards/board/l (last visited October 15, 2025).\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20,2025\nPage 4\n47-48,69 Cal. Rptr. 480,485 (Cal. Ct. App. 1968)). In the same opinion,the Attorney General\nalso quoted Sacramento Newspaper Guild for the proposition that,\n[t]here is rarely any purpose to a nonpublic pre-meeting conference\nexcept to conduct some part of the decisional process behind\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages,as well as the ultimate step of official action,can\nan open meeting regulation frustrate these evasive devices.\n(Emphasis added.) Ill. Att'y Gen. Op. No. S-726, at 125 (quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50,69 Cal.\nRptr. at 487).\nIn this instance,the Board did not dispute that a majority of a quorum of its\nmembers attended the November 23,2024,Casual Conversation with the Village President\ngathering. The Board's answer to this office indicated that the Village President and three\ntrustees attended the event as well as the Village Administrator and the Village Director of\nPublic Works and Engineering. The Board described the event as follows:\nThe purpose of the event was to provide an informal venue for\nresidents to ask questions or express concerns to the Village\nPresident regarding Village operations and affairs. The event was\nheld on a Saturday morning to encourage attendance from\nresidents. The event was promoted in various Village publications,\nincluding on social media,weekly e-newsletters and the village\nwebsite. Approximately fifteen (15) residents attended the event\nfor varying lengths of time.\n\n***\nFor approximately one and a half hours,residents asked\nquestions covering a range of topics, including but not limited to\ntraffic control measures, crime reporting,homeless population,\nspecial events and recreation opportunities. During this Q&A,\nPresident Adduci,Administrator Walsh or Director Bielak\nprovided responses. There was no deliberation between elected\nofficials. No public business was acted upon during the event.[SJ\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [l].\n8\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 5\nThe Board denied that the event constituted a \"meeting\" under OMA. The Board acknowledged\nthat as the event was starting, the Village President individually spoke with the three trustees\npresent and asked them not to speak \"so as to avoid deliberating public business outside of a\nproperly posted meeting.\" 9 The Board also argued that \"[t]here was no examining or weighing\nof reasons for or against a course of action, no exchange of facts preliminary to a decision, no\nattempt to reach accord on a specific matter of Village business[]\" at the gathering and argued\nthat '\nmerely assumes, without any facts, that an OMA violation occurred just\nbecause members of the Village Board were in the same room together. That alone is not\nsufficient to find an OMA violation.\"10 The Board's answer also indicated that no recording was\nmade of the gathering.\ndid not dispute the Board's contention that no\nIn reply to that answer,\ndeliberations occurred between Board members during the gathering, but she reiterated her\nassertion that the event constituted a Board meeting. She claimed that the topics addressed\nduring the event involved important Village business and alleged that the trustees had meant to\nactively participate but were advised that they could not. She did not, however, provide any\ninsight into how she was aware that the trustees had such intentions. Citing Ill. Att'y Gen. Pub.\nAcc. Op. No. 23-003, issued March 14, 2023,\nalso asserted that the requirements of\nOMA apply not only to those gatherings in which public bodies engage in formal deliberations\nor take formal actions, but also to gatherings where there are discussions of public business that\nare for the purpose of collecting information. She alleged that the \"purpose of the gathering was\nto discuss public business. For 90 minutes, Ms. Adduci led a conversation with residents in\nwhich a majority of a quorum gathered and exchanged information on * * * Village business.\"11\nIn the cited binding opinion, the Attorney General concluded that a gathering in\nwhich a majority of a quorum of a library board held a \"Meet and Greet\" where \"staff members\npresented questions and concerns about substantive library issues\" met the definition of a\nmeeting under OMA. 12 In that matter, the board contended that the gathering was an informal\ngathering intended to allow staff employees to get to know the trustees and to ask questions or\npresent concerns to the board. 13 Although there was no indication that the board attempted to\n9Letter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [ l].\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [2].\n10\n\nLetter from\no Shannon Barnaby, Senior Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 8, 2025).\n11\n\n12\n\nIII. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 6-7.\n\n13\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 4.\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 6\nreach an accord on any matters, the Attorney General noted that \"[t]he requirements of OMA\napply not only to those gatherings in which public bodies take formal actions, but also to\ndiscussions of public business for the purpose of collecting information.\" 14 Significantly, this\noffice's review of the recording of the gathering showed that all three members of the board\nmembers who were present actively participated at times. 15 Because the trustees had engaged in\nthe collective inquiry phase of deliberations by gathering and exchanging information on issues\nof library business, the Attorney General determined that the board improperly held a \"meeting\"\nwithout following OMA's requirements. 16 See also Ill. Att'y Gen. Pub. Acc. Op. No. 25-011,\nissued August 12, 2025, at 7, 10 (county board members who attended presentation and\nparticipated in question and answer session with energy company \"engaged in collective inquiry\nphase of deliberations by gathering and exchanging information in anticipation of possibly taking\nfuture action\" on a proposed project).\nHaving reviewed the information submitted by the parties, this office is unable to\nconclude that the November 23, 2024, gathering constituted a \"meeting\" of the Board under the\ndefinition in section 1.02 of OMA. The Village's website described the \"Casual Conversation\nwith Village President Cathy Adduci\" as follows:\nBring your questions and/or feedback about Village\noperations and initiatives and join Village President Cathy Adduci\nfor \"Casual Conversation with Village President\" on,\nSaturday, November 23rd from 9 - 10:30 a.m. at the River\nForest Lib[r]ary - 401 Thatcher.\nAll community members are invited to attend and get\nanswers to any questions they may have at this informal and\ninformational event.[ 17l\nThe event description emphasized that the gathering was intended to be a\nconversation between the Village President and constituents. Although there is no recording for\nthis office to review, the undisputed facts reflect that the Village President made opening\nremarks to the public and then she, along with the Village Administrator and the Village Director\nof Public Works and Engineering answered questions from members of the public about various\nmatters of public business. If the Village President had been the only Board member in\n14\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7.\n\n15\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6.\n\n16\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6-7.\n\n1\n7 Casual Conversation with Village President Cathy Adduci, https://www.vrf.us/events/event/2778\n\n(last visited October 17, 2025).\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 7\nattendance, then the event would clearly fall outside the scope of OMA. However, the presence\nof the three trustees established a majority of a quorum. Based on the Board's response, it is not\nentirely clear whether the trustees made any comments whatsoever during the gathering, but the\nresponse explained that the Board president instructed each of the trustees not to speak and\nemphasized that \"[t]here are no allegations that suggest or support that there was a deliberation\nor even discussion about Village business between Board members and the Village's evidence of\npeople present state that no deliberations occurred.\" 18 This is distinguishable from the\nunderlying circumstances in Binding Opinion 23-003, which clearly involved a majority of a\nquorum of a public body actively participating in discussions of public business.\nappears to allege that even if not all the present Board members\nengaged in the discussion, they were nevertheless engaged in the collective inquiry phase of\ndeliberations by listening to the constituents' concerns. However, the stated purpose of the\ngathering was to enable constituents to pose questions and engage in dialogue with the Village\nPresident; it is not apparent that the Casual Conversation with the Village President was also\nintended to elicit information from attendees for the Board to consider in anticipation of\nresponding to any specific constituent concern. The fact that three trustees observed the\nproceedings did not transform the gathering into a \"meeting\" subject to the requirements of\nOMA. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 51521 and 51896, issued June 13, 2018, at 4\n(presence of four members of a seven-member village at a forum concerning a referendum on the\nvillage's home rule authority did not constitute a meeting because only two members made\nsubstantive comments).\nAccordingly, because the trustees did not engage in the discussion to collect or\nexchange information concerning potential future actions on matters within its authority, this\noffice has insufficient evidence from which it could conclude that the November 23, 2024,\nCausal Conversation with the Village President gathering constituted a \"meeting\" subject to the\nrequirements of OMA. Nonetheless, this office notes that a majority of a quorum of Board\nmembers attending gatherings under circumstances such as these raises at least the appearance of\nimpropriety and could lead to impromptu discussions of public business. The Board may wish to\nrefrain from attending the Village President's Casual Conversation events to avoid the potential\nto lapse into a discussion that should have been held with proper notice.\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [2].\n18\n\nOffice of the Illinois Attorney General\n\n\fMr. Matthew Walsh\nOctober 20, 2025\nPage 8\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This matter is closed. If you have any questions,\nyou may contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n84125 o 2a meeting proper mun\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that a November 23, 2024, 'Casual Conversation with the Village President' gathering was a secret public meeting because enough board members attended to form a quorum. The Illinois Attorney General's Public Access Bureau investigated and concluded that the gathering did not meet the legal definition of a 'meeting' under the Open Meetings Act, as there was no deliberation among board members on public business. Therefore, no violation was found.","card_headline":"Informal gatherings of a village board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-84125/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nOctober 20, 2025\n\nVia electronic mail\n\nVia electronic mail\nMr. Matthew Walsh\nVillage Administrator\nVillage of River Forest\n400 Park Avenue\nRiver Forest, Illinois 60305\nmwalsh@vrf.us\nRE: OMA Request for Review- 2024 PAC 84125\nDear- and Mr. Walsh:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA). 1 For the reasons explained below, the Public Access Bureau concludes that the Village\nof River Forest (Village) Board of Trustees (Board) did not violate OMA in connection with a\nNovember 23, 2024, gathering.\n\nBACKGROUND\nOn December 2, 2024, the Public Access Bureau received\n-Request for Review alleging that the Village President holds \"a quarterly series of off­\nsite meetings\" called \"Casual Conversations with Village President Cathy Adduci\" during which\nshe asserted \"matters of Village Policy, including zoning, development, policing, and traffic,\n\n1\n\n5 ILCS 120/3.S(e) (West 2024).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nwere discussed.\" 2 - contended that the Board violated OMA during the November\n23, 2024, Casual Conversations with the Village President gathering because a quorum of the\nBoard was � event without adhering to OMA's requirements, such as timely posting\nan agenda. -- also asserted that before the November 23, 2024, gathering, \"the Village\npresident approached at least two of the trustees and told them they were not permitted to speak\nat the meeting for fear of 'an OMA violation.\"' 3\nOn December 23, 2024, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing whether the November 23, 2024,\ngathering constituted a \"meeting,\" as that term is defined in section 1.02 of OMA. 4 On January\n3, 2025, this office received the requested response. On January 6, 2025, this office forwarded a\ncopy of the Board's response to-; she replied on January 8, 2025.\nDETERMINATION\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989). Section 2(a) of OMA 5 provides that \"[a]ll meetings of public bodies shall be\nopen to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nAmong other things, OMA also requires public bodies to provide advance notice of meetings,\npermit an opportunity for public comment, and approve and maintain minutes. 6\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA:\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\n\nto Illinois Attorney General, Public Access Counselor, Public\n\nE-mail from\nAccess Bureau (December 1, 2024).\n2\n\n3 E-mail fro�o Illinois Attorney General, Public Access Counselor, Public\n\nAccess Bureau (December 1, 2024).\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nAccording to the Village's website, the Board is comprised of the Village\npresident and six trustees. 7 Four members of the Board constitutes a quorum, and a majority of\nthe quorum is three members. Therefore, a gathering in which at least three members of the\nBoard engaged in deliberative discussions of public business would ordinarily constitute a\nmeeting of the Board that would be subject to the procedural safeguards and requirements of\nOMA.\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (2003) (acknowledging that OMA is not \"triggered every time\npublic officials meet and converse\"). \"Rather, the Act is designed to prohibit secret deliberation\nand action on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980).\nThe Office of the Attorney General has stated, \"whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 7. \"In theory, there is\nno absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application of' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" amongst themselves. Ill.\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11; see also Nabhani v.\nCoglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for\npurposes of OMA when there is \"no examining or weighing of reasons for or against a course of\naction, no exchange of facts preliminary to a decision, [and] no attempt to reach accord on a\nspecific matter of public business.\").\nThe Attorney General has also noted that \"[d]eliberation * * * connotes not only\ncollective discussion, but the collective acquisition and exchange of facts preliminary to the\nultimate decision.\" Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 125 (quoting\nSacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41,\n7 River Forest, Village Board, https://www.vrf.us/boards/board/l (last visited October 15, 2025).\n\n47-48,69 Cal. Rptr. 480,485 (Cal. Ct. App. 1968)). In the same opinion,the Attorney General\nalso quoted Sacramento Newspaper Guild for the proposition that,\n[t]here is rarely any purpose to a nonpublic pre-meeting conference\nexcept to conduct some part of the decisional process behind\nclosed doors. Only by embracing the collective inquiry and\ndiscussion stages,as well as the ultimate step of official action,can\nan open meeting regulation frustrate these evasive devices.\n(Emphasis added.) Ill. Att'y Gen. Op. No. S-726, at 125 (quoting\nSacramento Newspaper Guild, 263 Cal. App. 2d at 50,69 Cal.\nRptr. at 487).\nIn this instance,the Board did not dispute that a majority of a quorum of its\nmembers attended the November 23,2024,Casual Conversation with the Village President\ngathering. The Board's answer to this office indicated that the Village President and three\ntrustees attended the event as well as the Village Administrator and the Village Director of\nPublic Works and Engineering. The Board described the event as follows:\nThe purpose of the event was to provide an informal venue for\nresidents to ask questions or express concerns to the Village\nPresident regarding Village operations and affairs. The event was\nheld on a Saturday morning to encourage attendance from\nresidents. The event was promoted in various Village publications,\nincluding on social media,weekly e-newsletters and the village\nwebsite. Approximately fifteen (15) residents attended the event\nfor varying lengths of time.\n\n***\nFor approximately one and a half hours,residents asked\nquestions covering a range of topics, including but not limited to\ntraffic control measures, crime reporting,homeless population,\nspecial events and recreation opportunities. During this Q&A,\nPresident Adduci,Administrator Walsh or Director Bielak\nprovided responses. There was no deliberation between elected\nofficials. No public business was acted upon during the event.[SJ\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\n\nThe Board denied that the event constituted a \"meeting\" under OMA. The Board acknowledged\nthat as the event was starting, the Village President individually spoke with the three trustees\npresent and asked them not to speak \"so as to avoid deliberating public business outside of a\nproperly posted meeting.\" 9 The Board also argued that \"[t]here was no examining or weighing\nof reasons for or against a course of action, no exchange of facts preliminary to a decision, no\nattempt to reach accord on a specific matter of Village business[]\" at the gathering and argued\nthat '\nmerely assumes, without any facts, that an OMA violation occurred just\nbecause members of the Village Board were in the same room together. That alone is not\nsufficient to find an OMA violation.\"10 The Board's answer also indicated that no recording was\nmade of the gathering.\ndid not dispute the Board's contention that no\nIn reply to that answer,\ndeliberations occurred between Board members during the gathering, but she reiterated her\nassertion that the event constituted a Board meeting. She claimed that the topics addressed\nduring the event involved important Village business and alleged that the trustees had meant to\nactively participate but were advised that they could not. She did not, however, provide any\ninsight into how she was aware that the trustees had such intentions. Citing Ill. Att'y Gen. Pub.\nAcc. Op. No. 23-003, issued March 14, 2023,\nalso asserted that the requirements of\nOMA apply not only to those gatherings in which public bodies engage in formal deliberations\nor take formal actions, but also to gatherings where there are discussions of public business that\nare for the purpose of collecting information. She alleged that the \"purpose of the gathering was\nto discuss public business. For 90 minutes, Ms. Adduci led a conversation with residents in\nwhich a majority of a quorum gathered and exchanged information on * * * Village business.\"11\nIn the cited binding opinion, the Attorney General concluded that a gathering in\nwhich a majority of a quorum of a library board held a \"Meet and Greet\" where \"staff members\npresented questions and concerns about substantive library issues\" met the definition of a\nmeeting under OMA. 12 In that matter, the board contended that the gathering was an informal\ngathering intended to allow staff employees to get to know the trustees and to ask questions or\npresent concerns to the board. 13 Although there was no indication that the board attempted to\n9 Letter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [ l].\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\nSenior Assistant Attorney General, Public Access Bureau (January 3, 2025), at [2].\n10\n\nLetter from\no Shannon Barnaby, Senior Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (January 8, 2025).\n11\n\nreach an accord on any matters, the Attorney General noted that \"[t]he requirements of OMA\napply not only to those gatherings in which public bodies take formal actions, but also to\ndiscussions of public business for the purpose of collecting information.\" 14 Significantly, this\noffice's review of the recording of the gathering showed that all three members of the board\nmembers who were present actively participated at times. 15 Because the trustees had engaged in\nthe collective inquiry phase of deliberations by gathering and exchanging information on issues\nof library business, the Attorney General determined that the board improperly held a \"meeting\"\nwithout following OMA's requirements. 16 See also Ill. Att'y Gen. Pub. Acc. Op. No. 25-011,\nissued August 12, 2025, at 7, 10 (county board members who attended presentation and\nparticipated in question and answer session with energy company \"engaged in collective inquiry\nphase of deliberations by gathering and exchanging information in anticipation of possibly taking\nfuture action\" on a proposed project).\nHaving reviewed the information submitted by the parties, this office is unable to\nconclude that the November 23, 2024, gathering constituted a \"meeting\" of the Board under the\ndefinition in section 1.02 of OMA. The Village's website described the \"Casual Conversation\nwith Village President Cathy Adduci\" as follows:\nBring your questions and/or feedback about Village\noperations and initiatives and join Village President Cathy Adduci\nfor \"Casual Conversation with Village President\" on,\nSaturday, November 23rd from 9 - 10:30 a.m. at the River\nForest Lib[r]ary - 401 Thatcher.\nAll community members are invited to attend and get\nanswers to any questions they may have at this informal and\ninformational event.[ 17l\nThe event description emphasized that the gathering was intended to be a\nconversation between the Village President and constituents. Although there is no recording for\nthis office to review, the undisputed facts reflect that the Village President made opening\nremarks to the public and then she, along with the Village Administrator and the Village Director\nof Public Works and Engineering answered questions from members of the public about various\nmatters of public business. If the Village President had been the only Board member in\n14\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7.\n\n15\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6.\n\n16\n\nIll. Att'y Gen. Pub. Acc. Op. No. 23-003, at 6-7.\n\n1\n7 Casual Conversation with Village President Cathy Adduci, https://www.vrf.us/events/event/2778\n\nattendance, then the event would clearly fall outside the scope of OMA. However, the presence\nof the three trustees established a majority of a quorum. Based on the Board's response, it is not\nentirely clear whether the trustees made any comments whatsoever during the gathering, but the\nresponse explained that the Board president instructed each of the trustees not to speak and\nemphasized that \"[t]here are no allegations that suggest or support that there was a deliberation\nor even discussion about Village business between Board members and the Village's evidence of\npeople present state that no deliberations occurred.\" 18 This is distinguishable from the\nunderlying circumstances in Binding Opinion 23-003, which clearly involved a majority of a\nquorum of a public body actively participating in discussions of public business.\nappears to allege that even if not all the present Board members\nengaged in the discussion, they were nevertheless engaged in the collective inquiry phase of\ndeliberations by listening to the constituents' concerns. However, the stated purpose of the\ngathering was to enable constituents to pose questions and engage in dialogue with the Village\nPresident; it is not apparent that the Casual Conversation with the Village President was also\nintended to elicit information from attendees for the Board to consider in anticipation of\nresponding to any specific constituent concern. The fact that three trustees observed the\nproceedings did not transform the gathering into a \"meeting\" subject to the requirements of\nOMA. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 51521 and 51896, issued June 13, 2018, at 4\n(presence of four members of a seven-member village at a forum concerning a referendum on the\nvillage's home rule authority did not constitute a meeting because only two members made\nsubstantive comments).\nAccordingly, because the trustees did not engage in the discussion to collect or\nexchange information concerning potential future actions on matters within its authority, this\noffice has insufficient evidence from which it could conclude that the November 23, 2024,\nCausal Conversation with the Village President gathering constituted a \"meeting\" subject to the\nrequirements of OMA. Nonetheless, this office notes that a majority of a quorum of Board\nmembers attending gatherings under circumstances such as these raises at least the appearance of\nimpropriety and could lead to impromptu discussions of public business. The Board may wish to\nrefrain from attending the Village President's Casual Conversation events to avoid the potential\nto lapse into a discussion that should have been held with proper notice.\n\nLetter from Matt Walsh, Village Administrator, Village of River Forest, to Shannon Barnaby,\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This matter is closed. If you have any questions,\nyou may contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n84125 o 2a meeting proper mun\n\nOffice of the Illinois Attorney General"}
{"id":1470,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-09-10","case_number":null,"request_numbers":["84869"],"title":"Shelby County Board private Zoom gathering not found to be OMA meeting requiring notice","filename":"84869, issued September 10, 2025.pdf","rel_path":null,"word_count":1842,"summary":"Mr. Kirk Allen alleged that the Shelby County Board violated the Open Meetings Act by holding an unannounced Zoom meeting, but the PAC found insufficient evidence that the gathering constituted a 'meeting' under the Act.","plain_summary":"A citizen complained that a Shelby County Board committee held a private Zoom meeting without giving the public notice as required by law. The Attorney General's office investigated and determined that there wasn't enough evidence to prove that the discussion reached the level of a formal 'meeting' where official business or deliberation occurred. Consequently, the case was closed without a finding of a violation.","holding":"The PAC concluded that there was insufficient evidence to determine that the Zoom gathering constituted a 'meeting' subject to the requirements of OMA.","legal_question":"Did the Zoom gathering of Shelby County Board members constitute a 'meeting' under the Open Meetings Act requiring public notice?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Shelby County Board","requesting_party":"Mr. Kirk Allen","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The alleged failure of the Shelby County Board to provide public notice for a Zoom gathering of committee members.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/84869, issued September 10, 2025.pdf","sha256":"834462e2f543f0b68cce8dd04b418541151af621b4ca2dd0844192e377c0cd41","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Open Meetings Act","Zoom meeting","public notice","meeting definition"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nSeptember 10, 2025\n\nVia electronic mail\nMr. Kirk Allen\nkirk@illinoisleaks.com\nVia electronic mail\nThe Honorable Tad A. Mayhall\nChairman, Shelby County Board\n[street address redacted for site publication -- see original PDF]\nshcoboardchair@shelbycounty-il.gov\nRE: OMA Request for Review - 2025 PAC 84869\nDear Mr. Allen and Mr. Mayhall:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2024)).\n\nBACKGROUND\nOn January 18, 2025, Mr. Kirk Allen submitted a Request for Review to the\nPublic Access Bureau alleging that the Budget/Audit/Legislative and Finance Committees of the\nShelby County Board (Board) violated OMA by participating in an \"Audit preparation kick-off\nmeeting\" via Zoom on January 9, 2025, without following OMA's requirements, such as\nproviding public notice. 1 He asserted that at least six Board members participated in this\ngathering and that two of the attendees were unknown but that if they were Board members, \"the\nCounty Board needs to be added to the named public bodies allegedly violating OMA.\"2 Mr.\nAllen listed the Board members who served on each of the two committees and highlighted the\n1 E-mail from Kirk Allen to [Public Access Bureau] (January 18, 2025).\n2E-mail from Kirk Allen to [Public Access Bureau] (January 18, 2025).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fMr. Kirk Allen\nThe Honorable Tad A. Mayhall\nSeptember 10, 2025\nPage 2\nmembers who attended this gathering. He also provided an agenda that was prepared by the\naudit firm, Sikich, for the gathering and a screenshot of the Zoom gathering showing individuals\nwho logged in.\nOn January 27, 2025, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing whether the January 9, 2025,\ngathering constituted a \"meeting,\" as that term is defined in section 1.02 of OMA (5 ILCS\n120/1.02 (West 2024)). On February 19, 2025, this office received the requested response. On\nFebruary 21, 2025, this office forwarded a copy of the Board's response to Mr. Allen; he replied\nthat same day.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA (5 ILCS 140/2(a)\n(West 2024)) provides that \"[a]ll meetings of public bodies shall be open to the public unless\nexcepted in subsection (c) and closed in accordance with Section 2a.\"\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nUnder this statutory definition, a \"meeting\" may include gatherings held by video\nor audio conference. In his submission, Mr. Allen stated that seven Board members serve on\neach of the two committees. Accordingly, four members of each committee comprise a quorum,\nand a majority of the quorum is three members. Deliberative discussions involving at least three\nmembers of each committee which concern \"public business\" would ordinarily constitute\nmeetings of the committees that would be subject to the procedural safeguards and requirements\nof OMA. Mr. Allen contended that four members of the Budget/Audit/Legislative Committee\nand three members of the Finance Committee participated in the Zoom gathering.\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (2003) (acknowledging that OMA is not \"triggered every time\n\nOffice of the Illinois Attorney General\n\n\fMr. Kirk Allen\nThe Honorable Tad A. Mayhall\nSeptember 10, 2025\nPage 3\npublic officials meet and converse\"). \"Rather, the Act is designed to prohibit secret deliberation\nand action on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980).\nThe Office of the Attorney General has stated, \"whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 7. \"In theory, there is\nno absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application of' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" amongst themselves. Ill.\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11. In addition, the\nrequirements of OMA apply not only to those gatherings in which public bodies attempt to reach\nan accord or take formal actions, but also to gatherings where there are discussions of public\nbusiness that are for the purpose of collecting information. Ill. Att'y Gen. Pub. Acc. Op. No. 23003, issued March 14, 2023, at 6-7 (concluding that \"Meet and Greet\" gathering constituted a\nmeeting where board members \"engaged in the collective inquiry phase of deliberations by\ngathering and exchanging information in anticipation of possibly taking future action\"); Ill. Att'y\nGen. Pub. Acc. Op. No. 25-011, issued August 12, 2025, at 7, 10 (county board members who\nattended presentation and participated in question and answer session with energy company\n\"engaged in collective inquiry phase of deliberations by gathering and exchanging information in\nanticipation of possibly taking future action\" on a proposed project).\nThe Board's response to this office confirmed that four members from the\nLegislative/Budget/Audit Committee attended the Zoom gathering, and three members of the\nFinance Committee also attended with one member leaving after about 10 minutes.\nAdditionally, representatives from six other County offices attended. The Board described the\nZoom gathering as follows:\nThe meeting was set up and conducted by Anna Cadmus\nand Laura Babula from Sikich, who were recently hired to perform\npre-audit and budget services for us in 2025 and 2026. The\nmeeting was to introduce themselves and to discuss their scope of\nwork and process to perform pre-audit work for fiscal year 2023,\nas well as timelines. Member participation was minimal since Ms.\nCadmus was providing information and expectations for their\n\nOffice of the Illinois Attorney General\n\n\fMr. Kirk Allen\nThe Honorable Tad A. Mayhall\nSeptember 10, 2025\nPage 4\nprocess. Members were in attendance for observation and to get an\nunderstanding of the work to take place. [3 l\nIn reply to that answer, Mr. Allen maintained that the committees improperly\nparticipated in the Zoom gathering without adhering to OMA's requirements. He asserted:\n\"While this audit prep meeting may not have had any formal action taken, they clearly admit it\nwas to discuss public business. That business, based on the agenda items, was to collect\ninformation in order to move forward with the past-due 2023 county audit. \"4 He also directed\nthis office's attention to an e-mail sent from the Board's chair to committee members sharing the\nZoom invite and agenda for this gathering.\nAfter reviewing the materials submitted by the parties, this office asked the Board\nto provide a copy of the recording of the Zoom gathering if such a recording existed. The Board\nChairman replied that he consulted the Sikich representative who hosted the gathering, and she\nreplied that she did not have a recording but offered to provide her notes. On August 25, 2025,\nthe Sikich representative sent the notes to this office. The notes contain limited details. They\nappear to reflect that County officials, including Board members, introduced themselves and\nreceived information from Sikich concerning the preparation for the pre-audit. The notes also\nindicate that Sikich asked limited questions about County operations, but they do not describe\nany specific interactions or back-and-forth discussions involving Board members.\nBased on the available information, this office is unable to determine that the\npresentation led by the Sikich representatives expanded into deliberative discussions with or\namong Board members concerning the pre-audit. Although it is undisputed that the pre-audit\npertained to public business, this office has insufficient evidence from which it could conclude\nthat the members of the two committees engaged in the collective inquiry phase of deliberations\nby exchanging information with one another in preparation for this pre-audit. The agenda\nindicates that the purpose of the gathering was to provide general information to county agencies\nabout the upcoming pre-audit. Consistent with the Board's response to this office, the notes of\nthe gathering indicate that the gathering primarily involved Sikich providing an overview of the\naudit process and summarizing the types of information or records that would be collected from\nthe various agencies in the coming weeks. Unlike the meeting at issue in Attorney General\nOpinion 95-004, which the meeting materials showed was called \"for the purpose of persuading\"\nthe public bodies toward a course of action and for which there was direct evidence of\ndeliberational statements of certain members, 5 this office lacks evidence of Board members\nE-mail from Tad A. Mayhall, Chairman, Shelby County Board, District 3, to Teresa Lim\n(February 19, 2025).\n3\n\n4\n5\n\nE-mail from Kirk Allen to Teresa Lim (February 21, 2025).\n\nIll. Att'y Gen. Op. No. 95-004, at 11.\n\nOffice of the Illinois Attorney General\n\n\fMr. Kirk Allen\nThe Honorable Tad A. Mayhall\nSeptember 10, 2025\nPage 5\nsignificantly participating in the discussion with Sikich or deliberating amongst themselves.\nUnder these circumstances, this office is unable to conclude that the Zoom gathering constituted\na \"meeting\" subject to the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\nTERESA LIM\nDeputy Bureau Chief\nPublic Access Bureau\n84869 o 2a meeting proper co\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A county board's Zoom gathering of committee members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-84869/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nSeptember 10, 2025\n\nVia electronic mail\nMr. Kirk Allen\nkirk@illinoisleaks.com\nVia electronic mail\nThe Honorable Tad A. Mayhall\nChairman, Shelby County Board\n[street address redacted for site publication -- see original PDF]\nshcoboardchair@shelbycounty-il.gov\nRE: OMA Request for Review - 2025 PAC 84869\nDear Mr. Allen and Mr. Mayhall:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2024)).\n\nBACKGROUND\nOn January 18, 2025, Mr. Kirk Allen submitted a Request for Review to the\nPublic Access Bureau alleging that the Budget/Audit/Legislative and Finance Committees of the\nShelby County Board (Board) violated OMA by participating in an \"Audit preparation kick-off\nmeeting\" via Zoom on January 9, 2025, without following OMA's requirements, such as\nproviding public notice. 1 He asserted that at least six Board members participated in this\ngathering and that two of the attendees were unknown but that if they were Board members, \"the\nCounty Board needs to be added to the named public bodies allegedly violating OMA.\"2 Mr.\nAllen listed the Board members who served on each of the two committees and highlighted the\n1 E-mail from Kirk Allen to [Public Access Bureau] (January 18, 2025).\n2E-mail from Kirk Allen to [Public Access Bureau] (January 18, 2025).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nmembers who attended this gathering. He also provided an agenda that was prepared by the\naudit firm, Sikich, for the gathering and a screenshot of the Zoom gathering showing individuals\nwho logged in.\nOn January 27, 2025, this office forwarded a copy of the Request for Review to\nthe Board and asked it to provide a written response addressing whether the January 9, 2025,\ngathering constituted a \"meeting,\" as that term is defined in section 1.02 of OMA (5 ILCS\n120/1.02 (West 2024)). On February 19, 2025, this office received the requested response. On\nFebruary 21, 2025, this office forwarded a copy of the Board's response to Mr. Allen; he replied\nthat same day.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA (5 ILCS 140/2(a)\n(West 2024)) provides that \"[a]ll meetings of public bodies shall be open to the public unless\nexcepted in subsection (c) and closed in accordance with Section 2a.\"\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nUnder this statutory definition, a \"meeting\" may include gatherings held by video\nor audio conference. In his submission, Mr. Allen stated that seven Board members serve on\neach of the two committees. Accordingly, four members of each committee comprise a quorum,\nand a majority of the quorum is three members. Deliberative discussions involving at least three\nmembers of each committee which concern \"public business\" would ordinarily constitute\nmeetings of the committees that would be subject to the procedural safeguards and requirements\nof OMA. Mr. Allen contended that four members of the Budget/Audit/Legislative Committee\nand three members of the Finance Committee participated in the Zoom gathering.\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (2003) (acknowledging that OMA is not \"triggered every time\n\npublic officials meet and converse\"). \"Rather, the Act is designed to prohibit secret deliberation\nand action on business which properly should be discussed in a public forum due to its potential\nimpact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980).\nThe Office of the Attorney General has stated, \"whether a gathering falls within\nthe definition of meeting as used in the Act, would depend upon the peculiar facts in each\nsituation.\" 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 7. \"In theory, there is\nno absolute prohibition against the members of a public body attending an 'informational\nmeeting' without triggering the application of' OMA, as long as the members do not make\n\"[d]eliberational statements\" or engage in \"unrecorded discussions\" amongst themselves. Ill.\nAtt'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General\nconcluded that the \"mere fact that a majority of a quorum of the members of a public body attend\nand participate in a bona fide presentation on new legislative developments in an area of public\nconcern\" did not make the presentation subject to OMA, but the extensive discussions of public\nbusiness by members of two county boards during the presentation did trigger the requirements\nof OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11. In addition, the\nrequirements of OMA apply not only to those gatherings in which public bodies attempt to reach\nan accord or take formal actions, but also to gatherings where there are discussions of public\nbusiness that are for the purpose of collecting information. Ill. Att'y Gen. Pub. Acc. Op. No. 23003, issued March 14, 2023, at 6-7 (concluding that \"Meet and Greet\" gathering constituted a\nmeeting where board members \"engaged in the collective inquiry phase of deliberations by\ngathering and exchanging information in anticipation of possibly taking future action\"); Ill. Att'y\nGen. Pub. Acc. Op. No. 25-011, issued August 12, 2025, at 7, 10 (county board members who\nattended presentation and participated in question and answer session with energy company\n\"engaged in collective inquiry phase of deliberations by gathering and exchanging information in\nanticipation of possibly taking future action\" on a proposed project).\nThe Board's response to this office confirmed that four members from the\nLegislative/Budget/Audit Committee attended the Zoom gathering, and three members of the\nFinance Committee also attended with one member leaving after about 10 minutes.\nAdditionally, representatives from six other County offices attended. The Board described the\nZoom gathering as follows:\nThe meeting was set up and conducted by Anna Cadmus\nand Laura Babula from Sikich, who were recently hired to perform\npre-audit and budget services for us in 2025 and 2026. The\nmeeting was to introduce themselves and to discuss their scope of\n\nprocess. Members were in attendance for observation and to get an\nunderstanding of the work to take place. [3 l\nIn reply to that answer, Mr. Allen maintained that the committees improperly\nparticipated in the Zoom gathering without adhering to OMA's requirements. He asserted:\n\"While this audit prep meeting may not have had any formal action taken, they clearly admit it\nwas to discuss public business. That business, based on the agenda items, was to collect\ninformation in order to move forward with the past-due 2023 county audit. \"4 He also directed\nthis office's attention to an e-mail sent from the Board's chair to committee members sharing the\nZoom invite and agenda for this gathering.\nAfter reviewing the materials submitted by the parties, this office asked the Board\nto provide a copy of the recording of the Zoom gathering if such a recording existed. The Board\nChairman replied that he consulted the Sikich representative who hosted the gathering, and she\nreplied that she did not have a recording but offered to provide her notes. On August 25, 2025,\nthe Sikich representative sent the notes to this office. The notes contain limited details. They\nappear to reflect that County officials, including Board members, introduced themselves and\nreceived information from Sikich concerning the preparation for the pre-audit. The notes also\nindicate that Sikich asked limited questions about County operations, but they do not describe\nany specific interactions or back-and-forth discussions involving Board members.\nBased on the available information, this office is unable to determine that the\npresentation led by the Sikich representatives expanded into deliberative discussions with or\namong Board members concerning the pre-audit. Although it is undisputed that the pre-audit\npertained to public business, this office has insufficient evidence from which it could conclude\nthat the members of the two committees engaged in the collective inquiry phase of deliberations\nby exchanging information with one another in preparation for this pre-audit. The agenda\nindicates that the purpose of the gathering was to provide general information to county agencies\nabout the upcoming pre-audit. Consistent with the Board's response to this office, the notes of\nthe gathering indicate that the gathering primarily involved Sikich providing an overview of the\naudit process and summarizing the types of information or records that would be collected from\nthe various agencies in the coming weeks. Unlike the meeting at issue in Attorney General\nOpinion 95-004, which the meeting materials showed was called \"for the purpose of persuading\"\nthe public bodies toward a course of action and for which there was direct evidence of\ndeliberational statements of certain members, 5 this office lacks evidence of Board members\nE-mail from Tad A. Mayhall, Chairman, Shelby County Board, District 3, to Teresa Lim\n(February 19, 2025).\n3\n\n4\n\nsignificantly participating in the discussion with Sikich or deliberating amongst themselves.\nUnder these circumstances, this office is unable to conclude that the Zoom gathering constituted\na \"meeting\" subject to the requirements of OMA.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\nTERESA LIM\nDeputy Bureau Chief\nPublic Access Bureau\n84869 o 2a meeting proper co\n\nOffice of the Illinois Attorney General"}
{"id":1471,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-10-10","case_number":null,"request_numbers":["85727"],"title":"Village of Westchester violated OMA by interrupting public comment","filename":"85727, issued October 10, 2025.pdf","rel_path":null,"word_count":1258,"summary":"A requester alleged that the Village of Westchester Board of Trustees improperly restricted his public comment during a March 11, 2025, meeting. The PAC determined that the Board violated section 2.06(g) of the Open Meetings Act by interrupting the speaker.","plain_summary":"A resident complained that the Village of Westchester Board repeatedly interrupted him during public comment at a March 11, 2025, meeting. The Attorney General's office reviewed the meeting recording and found that the Board violated section 2.06(g) of the Open Meetings Act by unreasonably interfering with the resident's right to speak. The matter was closed without a binding opinion, and the Board president indicated he would request further OMA training for Board members and staff.","holding":"The Village of Westchester violated section 2.06(g) of the Open Meetings Act by improperly interrupting a member of the public during the public comment portion of a meeting.","legal_question":"Whether the Village of Westchester Board of Trustees violated section 2.06(g) of the Open Meetings Act by improperly restricting a member of the public's right to address the Board.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Westchester","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The requester alleged that the Village Board improperly interrupted his public comment during a board meeting.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/interruptions/85727, issued October 10, 2025.pdf","sha256":"ba7e6739e9dfa5e79d4e2bfd69d0840efce27e0373e9195c37102079fb552e55","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public comment","meeting decorum","Open Meetings Act","board meeting"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"October 10, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Greg Hribal\nPresident\nVillage of Westchester\n1030 West Roosevelt Road\nWestchester, Illinois 60154\nghribal@westchester- il.gov\nRE: OMA Request for Review – 2025 PAC 85727\nDear\n\nand Mr. Hribal:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2024)).\nBACKGROUND\nOn March 12, 2025, this office received\nRequest for Review\nalleging that at the March 11, 2025, Village of Westchester ( Village) Board of Trustees ( Board)\nmeeting, his public comment was improperly restricted as follows:\nMy intention was to voice my displeasure with a Trustee on the\nVillage Board named Peter Marzano. At no point in time did I\nswear or use profane language. At no point did I do anything but\nsimply recant an interaction with him that occurred a few months\npast, yet on multiple occasions throughout my short public\ncomment I was interrupted and unable to speak. After a back and\n\n\fThe Honorable Greg Hribal\nOctober 10, 2025\nPage 2\nforth, which is a clear violation of the rules and decorum of public\ncomment I was allowed to finish after being interrupted several\ntimes. I was even called a \" S&*% Head\" by this individual or\nsome variation of that using the 'S' word after I left the chamber.[ 1]\nOn March 20, 2025, this office sent a copy of the Request for Review to the\nBoard and asked it to furnish a copy of (1) the agenda, ( 2) open session minutes ( in draft form if\nnecessary), ( 3) any recording of the open session that may have been made, and ( 4) any public\ncomment rules the Board has established and recorded. This office also requested a written\nresponse to\nallegation that the Board improperly infringed on his right to address the\nmembers of the Board at the meeting. On April 3, 2025, having not heard from the Board, this\noffice again sent a copy of the Request for Review to the Board, as well as two inquiry letters\nasking that the Board provide a written response to\nallegation.\nOn April 18, 2025, Board President Greg Hribal provided this office with a\nwritten response on the Board' s behalf, as well as a copy of the meeting agenda, meeting\nminutes, and a link to the recording of the open session. Thereafter, this office followed up with\nthe Board to confirm that its response was suitable to forward to\nOn July 17, 2025,\nafter\nconfirmed he remained interested in this matter, this office forwarded a copy of\nthe Board' s written response to him and notified him of his opportunity to reply; he did not reply.\nDETERMINATION\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2024)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" This provision \" requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\nmeetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. A public\nbody may restrict public comment only pursuant to its established and recorded rules, which\nmust tend to accommodate, rather than unreasonably restrict, the right to address public officials.\nIll. Att'y Gen. Pub. Acc. Op. No. 14-012, at 6.\nThe Board' s public comment rules, available on the Village' s website, provide, in\nrelevant part that \"[ i]nterruption of speakers; name calling; [ and] boisterous remarks\" are\nprohibited during public meetings. 2 In its response to this office, the Board acknowledged\n\n1E- mail from\n\nto Public Access [ Bureau, Office of the Attorney General] ( March 12,\n\n2025).\n2Westchester, Illinois Code of Ordinances § 2.12.200( F)2. (amended September 23, 2014).\n\n\fThe Honorable Greg Hribal\nOctober 10, 2025\nPage 3\ninterruptions occurred both during public comment and during the response given by Trustee\nMarzano\" as well as \" profanity[.]\" 3\nBased on this office's review of the Board meeting recording, 4\nbegan\nhis public comment by stating the comments were directed to Trustee Marzano. Thereafter, he\nspoke about an incident in which he alleged Trustee Marzano made certain statements that were\ncritical of\nuncle. Trustee Marzano interrupted to disagree with\nversion of\nthe incident. When\nasserted that he had a right to speak without interruption, Trustee\nMarzano stated that he also was entitled to speak and that he would not permit\nto lie.\nAfter\nand Trustee Marzano continued to talk over each other, Board President Hribal\nasked Trustee Marzano to allow\nto finish his public comment.\ncontinued to\nspeak about his uncle, and then told Trustee Marzano he should be ashamed of himself. Trustee\nMarzano then spoke again to dispute what it was he allegedly said during that incident and\nthen spoke about other things he took issue with regarding Trustee Marzano' s character.\nTrustee Marzano began to speak again, talking over\nBoard President Hribal then\nnoted there would be no talking over each other and\ncontinued with his public\ncomment again. Trustee Marzano interrupted\nagain and Board President Hribal again\ntried to restore order. Ultimately, Board President Hribal asked\nif he was done. As\nnoted in his Request for Review, he confirmed for the Board that he had concluded his\npublic comment.\nThe Public Access Bureau has previously determined that a brief and isolated\ninterruption such as a question or remark that does not preclude a speaker from completing his or\nher public comment does not violate section 2.06(g). In contrast, this office has determined that\nrepeated interruptions impermissibly infringe on a speaker' s statutory right to address a public\nbody. Compare Ill. Att'y Gen. PAC Req. Rev. Ltr. 37496, issued December 11, 2015, at 3\ndetermining that a board member' s requests for speaker to clarify comments before allowing\nthem to continue did not violate OMA) with Ill. Att'y Gen. PAC Req. Rev. Ltr. 53820 53830\n53873, issued November 7, 2018, at 4 (public body \" unreasonably interfered\" with public\ncomment by repeatedly interrupting and gaveling member of the public who was not acting in a\ndisruptive or disorderly manner). During the meeting at issue, Trustee Marzano' s repeated,\nconfrontational interruptions of\ncomments unreasonably interfered with his right to\nprovide public comment and violated the Board' s established and recorded rules prohibiting\ninterruptions of speakers. Accordingly, this office concludes that the Board violated section\n2.06(g) of OMA during the March 11, 2025, meeting. This office requests that the Board take\nmeasures to ensure that its members refrain from interrupting individuals who address the Board\n3Letter from Greg Hribal, Village President, Village of Westchester, to Katie Goldsmith, Assistant\nAttorney General ( April 18, 2025), at 1.\n4Village of Westchester Village Board, Meeting, March 11, 2025, Video File,\nhttps:// westchester- il.granicus. com/ MediaPlayer. php?view_id=1& clip_id=668, at 1:50- 5:50.\n\n\fThe Honorable Greg Hribal\nOctober 10, 2025\nPage 4\nduring future meetings, barring circumstances that violate the Board' s established and recorded\nrules. This office notes that the Board president indicated in his response to this office that he\nwould request further OMA training for Board members and staff in the near future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n85727 o 206g pub comment improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Interruption of public comment at a board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-85727/","full_text":"October 10, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Greg Hribal\nPresident\nVillage of Westchester\n1030 West Roosevelt Road\nWestchester, Illinois 60154\nghribal@westchester- il.gov\nRE: OMA Request for Review – 2025 PAC 85727\nDear\n\nand Mr. Hribal:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2024)).\nBACKGROUND\nOn March 12, 2025, this office received\nRequest for Review\nalleging that at the March 11, 2025, Village of Westchester (Village) Board of Trustees (Board)\nmeeting, his public comment was improperly restricted as follows:\nMy intention was to voice my displeasure with a Trustee on the\n\nforth, which is a clear violation of the rules and decorum of public\ncomment I was allowed to finish after being interrupted several\ntimes. I was even called a \" S&*% Head\" by this individual or\nsome variation of that using the 'S' word after I left the chamber.[ 1]\nOn March 20, 2025, this office sent a copy of the Request for Review to the\nBoard and asked it to furnish a copy of (1) the agenda, (2) open session minutes (in draft form if\nnecessary), (3) any recording of the open session that may have been made, and (4) any public\ncomment rules the Board has established and recorded. This office also requested a written\nresponse to\nallegation that the Board improperly infringed on his right to address the\nmembers of the Board at the meeting. On April 3, 2025, having not heard from the Board, this\noffice again sent a copy of the Request for Review to the Board, as well as two inquiry letters\nasking that the Board provide a written response to\nallegation.\nOn April 18, 2025, Board President Greg Hribal provided this office with a\nwritten response on the Board's behalf, as well as a copy of the meeting agenda, meeting\nminutes, and a link to the recording of the open session. Thereafter, this office followed up with\nthe Board to confirm that its response was suitable to forward to\nOn July 17, 2025,\nafter\nconfirmed he remained interested in this matter, this office forwarded a copy of\nthe Board's written response to him and notified him of his opportunity to reply; he did not reply.\nDETERMINATION\nSection 2.06(g) of OMA (5 ILCS 120/ 2.06(g) (West 2024)) provides that \"[ a] ny\nperson shall be permitted an opportunity to address public officials under the rules established\nand recorded by the public body.\" This provision \" requires that all public bodies subject to the\nAct provide an opportunity for members of the public to address public officials at open\nmeetings.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. A public\nbody may restrict public comment only pursuant to its established and recorded rules, which\nmust tend to accommodate, rather than unreasonably restrict, the right to address public officials.\nIll. Att'y Gen. Pub. Acc. Op. No. 14-012, at 6.\nThe Board's public comment rules, available on the Village's website, provide, in\nrelevant part that \"[ i]nterruption of speakers; name calling; [ and] boisterous remarks\" are\nprohibited during public meetings. 2 In its response to this office, the Board acknowledged\n\ninterruptions occurred both during public comment and during the response given by Trustee\nMarzano\" as well as \" profanity[.]\" 3\nBased on this office's review of the Board meeting recording, 4\nbegan\nhis public comment by stating the comments were directed to Trustee Marzano. Thereafter, he\nspoke about an incident in which he alleged Trustee Marzano made certain statements that were\ncritical of\nuncle. Trustee Marzano interrupted to disagree with\nversion of\nthe incident. When\nasserted that he had a right to speak without interruption, Trustee\nMarzano stated that he also was entitled to speak and that he would not permit\nto lie.\nAfter\nand Trustee Marzano continued to talk over each other, Board President Hribal\nasked Trustee Marzano to allow\nto finish his public comment.\ncontinued to\nspeak about his uncle, and then told Trustee Marzano he should be ashamed of himself. Trustee\nMarzano then spoke again to dispute what it was he allegedly said during that incident and\nthen spoke about other things he took issue with regarding Trustee Marzano's character.\nTrustee Marzano began to speak again, talking over\nBoard President Hribal then\nnoted there would be no talking over each other and\ncontinued with his public\ncomment again. Trustee Marzano interrupted\nagain and Board President Hribal again\ntried to restore order. Ultimately, Board President Hribal asked\nif he was done. As\nnoted in his Request for Review, he confirmed for the Board that he had concluded his\npublic comment.\nThe Public Access Bureau has previously determined that a brief and isolated\ninterruption such as a question or remark that does not preclude a speaker from completing his or\nher public comment does not violate section 2.06(g). In contrast, this office has determined that\nrepeated interruptions impermissibly infringe on a speaker's statutory right to address a public\nbody. Compare Ill. Att'y Gen. PAC Req. Rev. Ltr. 37496, issued December 11, 2015, at 3\ndetermining that a board member's requests for speaker to clarify comments before allowing\nthem to continue did not violate OMA) with Ill. Att'y Gen. PAC Req. Rev. Ltr. 53820 53830\n53873, issued November 7, 2018, at 4 (public body \" unreasonably interfered\" with public\ncomment by repeatedly interrupting and gaveling member of the public who was not acting in a\ndisruptive or disorderly manner). During the meeting at issue, Trustee Marzano's repeated,\nconfrontational interruptions of\ncomments unreasonably interfered with his right to\nprovide public comment and violated the Board's established and recorded rules prohibiting\ninterruptions of speakers. Accordingly, this office concludes that the Board violated section\n2.06(g) of OMA during the March 11, 2025, meeting. This office requests that the Board take\nmeasures to ensure that its members refrain from interrupting individuals who address the Board\n3 Letter from Greg Hribal, Village President, Village of Westchester, to Katie Goldsmith, Assistant\nAttorney General (April 18, 2025), at 1.\n4 Village of Westchester Village Board, Meeting, March 11, 2025, Video File,\nhttps:// westchester- il.granicus. com/ MediaPlayer. php?view_id=1& clip_id=668, at 1:50- 5:50.\n\nduring future meetings, barring circumstances that violate the Board's established and recorded\nrules. This office notes that the Board president indicated in his response to this office that he\nwould request further OMA training for Board members and staff in the near future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n85727 o 206g pub comment improper mun"}
{"id":1472,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-07-14","case_number":null,"request_numbers":["85881"],"title":"City of Morris City Council did not violate OMA by requiring FOIA for meeting minutes copies","filename":"85881, issued July 14, 2025.pdf","rel_path":null,"word_count":954,"summary":"A requester alleged the City of Morris violated the Open Meetings Act by failing to post meeting minutes on its website and improperly requiring a FOIA request to obtain copies of those minutes. The PAC determined that because the requester sought copies rather than inspection, the City's requirement to use FOIA was permissible, and no violation of OMA section 2.06(b) was established.","plain_summary":"A citizen complained that the City of Morris failed to post meeting minutes online and forced him to file a FOIA request to get copies. The Public Access Counselor determined that OMA does not require the City to post minutes because it uses a third-party vendor, not full-time staff, to maintain its website. Regarding the FOIA request, the PAC noted that OMA requires minutes to be available for inspection, not that copies be furnished, and that requests for copies are governed by FOIA. The PAC closed the file without issuing a binding opinion, stating it had no basis to conclude the City violated OMA because the request was for copies, not inspection.","holding":"The PAC closed the file without issuing a binding opinion, finding no basis to conclude the City violated OMA because the request was for copies of minutes, not for inspection.","legal_question":"Whether a public body violates the Open Meetings Act by requiring a requester to submit a FOIA request to obtain copies of meeting minutes.","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Morris City Council","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The requester sought access to and copies of City Council meeting minutes.","ocr_status":"ok","ocr_quality":97.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_b/85881, issued July 14, 2025.pdf","sha256":"98344627e64f4e844c0c5390445e6d4e05c9d6197c29d18e720c67933abf5ed7","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","FOIA request","public inspection","City of Morris"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"July 14, 2025\n\nVia electronic mail\n\nVia electronic mail\nMr. Garret Wheeler\n\nWheeler and Dearth Law Firm, Ltd.\n305 East North Street\n\nMorris, Illinois 60450\ngwheeler23@hotmail. com\nRE: OMA Request for Review – 2025 PAC 85881\nDear\n\nand Mr. Wheeler:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2024)).\nOn March 21, 2025,\n\nsubmitted a Request for Review alleging\n\nthat the City of Morris ( City) City Council ( Council) violated OMA by failing to post its meeting\n\nminutes on its website. He also alleged that the City improperly required him to submit a\nFreedom of Information Act ( FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2024)) request to obtain copies\n\nof meeting minutes.\nOn April 1, 2025, this office forwarded a copy of\n\nRequest for\n\nReview to the Council and asked it to provide a written response to the allegations, clarifying\n\nwho maintains its website and whether the individual(s) who maintain the website are full-time\nstaff members. This office also asked the Council to explain whether it maintains a minutes\n\nbook or otherwise has meeting minutes available for inspection at its office.\n\n\fMr. Garret Wheeler\nJuly 14, 2025\n\nPage 2\nOn April 9, 2025, the Council responded. The same day, this office forwarded a\ncopy of the Council' s response to\n\nhe replied on April 10, 2025.\nDETERMINATION\n\nSection 2.06( b) of OMA1 provides, in relevant part:\nThe minutes of meetings open to the public shall be\n\navailable for public inspection within 10 days after the approval\nof such minutes by the public body. * * * [ A] public body that\n\nhas a website that the full-time staff of the public body\nmaintains shall post the minutes of a regular meeting of its\n\ngoverning body open to the public on the public body's website\nwithin 10 days after the approval of the minutes by the public\n\nbody. (Emphasis added.)\nPosting of Meeting Minutes\nIn its response, the Council explained that it does not have any full-time staff\nmembers that maintain its website. The response stated that \" the City employs an outside\n\ncompany, Cloud 9, on a limited basis to provide some services related to the website[,]\" 2\nincluding uploading documents to post on its website. In his reply,\n\nargued that the\n\nCouncil should post its meeting minutes on its website because it has the capability to do so, and\nhe provided screenshots of the City' s website showing that minutes were posted for several\n\nmeetings in 2024. He also stated that towns with smaller populations than the City posted\nminutes to their websites.\nUnder the plain language of section 2.06( b), a public body is only required to post\n\nmeeting minutes on its website if the public body has full-time staff with responsibility for\nmaintaining the website. According to the Council' s response, the City uses a third- party\n\ncompany, not its own full-time staff, to maintain its website. Therefore, OMA does not require\nthe Council to post its meeting minutes online, even though it has the ability to do so through its\n\nthird-party vendor. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 71408, issued April 12, 2024 (\" OMA\ndoes not require public bodies to post meeting minutes on websites maintained by third\n\nparties[.]\"). Nonetheless, although OMA does not require the Council to post its minutes, it may\nwish to do in the interest of transparency.\n\n15 ILCS 120/2.06(b) (West 2024).\n2E- mail from Garret Wheeler, Wheeler and Dearth Law Firm, Ltd., to [Michael Knight, Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General] ( April 9, 2025).\n\n\fMr. Garret Wheeler\nJuly 14, 2025\n\nPage 3\nMaking Minutes Available for Public Inspection\nIn response to the allegation that the Council violated OMA by requiring\nto request copies of meeting minutes through FOIA, the Council stated that \" the City\n\nClerk's office maintains copies of the meeting minutes in their file at City Hall and those minutes\nare available for inspection.\" 3\nSection 3.5(a) of OMA4 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor[,]\"\n\nwhich \" must include a summary of the facts supporting the allegation.\"\n\nEmphasis added.) As quoted above, section 2.06(b) of OMA requires public bodies to make\nmeeting minutes available for public inspection; it does not require public bodies to furnish\n\ncopies of minutes upon request or otherwise address requests to obtain copies of the minutes.\nRequests for copies of records are governed by the Freedom of Information Act5 which, unlike\n\nOMA, contains fee provisions for copies of records. See 5 ILCS 140/6 (West 2024). Because\nRequest for Review asserts that he requested copies of minutes and does not allege\n\nthat the minutes were not available for inspection within 10 days of approval, this office does not\nhave a basis to conclude that the Council violated section 2.06( b). If\n\nstill wishes to\n\ninspect the minutes and has not yet done so, the Council should ensure that he has the\nopportunity to do so.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at michael.knight@ilag.gov.\nVery truly yours,\n\nMICHAEL J. KNIGHT\nAssistant\nAttorney\nGeneral\n\nPublic\nAccess\nBureau\n85881 o 206b proper mun\n\n3E- mail from Garret Wheeler, Wheeler and Dearth Law Firm, Ltd., to [Michael Knight, Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General] ( April 9, 2025).\n45 ILCS 120/3.5(a) ( West 2024).\n55 ILCS 140/1 et seq. ( West 2024).\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"City council meeting minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-85881/","full_text":"July 14, 2025\n\nVia electronic mail\n\nVia electronic mail\nMr. Garret Wheeler\n\nWheeler and Dearth Law Firm, Ltd.\n305 East North Street\n\nMorris, Illinois 60450\ngwheeler23@hotmail. com\nRE: OMA Request for Review – 2025 PAC 85881\nDear\n\nand Mr. Wheeler:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2024)).\nOn March 21, 2025,\n\nsubmitted a Request for Review alleging\n\nthat the City of Morris (City) City Council (Council) violated OMA by failing to post its meeting\n\nminutes on its website. He also alleged that the City improperly required him to submit a\nFreedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. (West 2024)) request to obtain copies\n\nof meeting minutes.\nOn April 1, 2025, this office forwarded a copy of\n\nRequest for\n\nReview to the Council and asked it to provide a written response to the allegations, clarifying\n\nwho maintains its website and whether the individual(s) who maintain the website are full-time\nstaff members. This office also asked the Council to explain whether it maintains a minutes\n\nOn April 9, 2025, the Council responded. The same day, this office forwarded a\ncopy of the Council's response to\n\nhe replied on April 10, 2025.\nDETERMINATION\n\nSection 2.06(b) of OMA1 provides, in relevant part:\nThe minutes of meetings open to the public shall be\n\navailable for public inspection within 10 days after the approval\nof such minutes by the public body. * * * [ A] public body that\n\nhas a website that the full-time staff of the public body\nmaintains shall post the minutes of a regular meeting of its\n\ngoverning body open to the public on the public body's website\nwithin 10 days after the approval of the minutes by the public\n\nbody. (Emphasis added.)\nPosting of Meeting Minutes\nIn its response, the Council explained that it does not have any full-time staff\nmembers that maintain its website. The response stated that \" the City employs an outside\n\ncompany, Cloud 9, on a limited basis to provide some services related to the website[,]\" 2\nincluding uploading documents to post on its website. In his reply,\n\nargued that the\n\nCouncil should post its meeting minutes on its website because it has the capability to do so, and\nhe provided screenshots of the City's website showing that minutes were posted for several\n\nmeetings in 2024. He also stated that towns with smaller populations than the City posted\nminutes to their websites.\nUnder the plain language of section 2.06(b), a public body is only required to post\n\nmeeting minutes on its website if the public body has full-time staff with responsibility for\nmaintaining the website. According to the Council's response, the City uses a third- party\n\ncompany, not its own full-time staff, to maintain its website. Therefore, OMA does not require\nthe Council to post its meeting minutes online, even though it has the ability to do so through its\n\nthird-party vendor. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 71408, issued April 12, 2024 (\" OMA\ndoes not require public bodies to post meeting minutes on websites maintained by third\n\nparties[.]\"). Nonetheless, although OMA does not require the Council to post its minutes, it may\nwish to do in the interest of transparency.\n\n15 ILCS 120/2.06(b) (West 2024).\n2E- mail from Garret Wheeler, Wheeler and Dearth Law Firm, Ltd., to [Michael Knight, Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General] (April 9, 2025).\n\nMaking Minutes Available for Public Inspection\nIn response to the allegation that the Council violated OMA by requiring\nto request copies of meeting minutes through FOIA, the Council stated that \" the City\n\nClerk's office maintains copies of the meeting minutes in their file at City Hall and those minutes\nare available for inspection.\" 3\nSection 3.5(a) of OMA4 provides that \"[ a] person who believes that a violation of\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor[,]\"\n\nwhich \" must include a summary of the facts supporting the allegation.\"\n\nEmphasis added.) As quoted above, section 2.06(b) of OMA requires public bodies to make\nmeeting minutes available for public inspection; it does not require public bodies to furnish\n\ncopies of minutes upon request or otherwise address requests to obtain copies of the minutes.\nRequests for copies of records are governed by the Freedom of Information Act5 which, unlike\n\nOMA, contains fee provisions for copies of records. See 5 ILCS 140/6 (West 2024). Because\nRequest for Review asserts that he requested copies of minutes and does not allege\n\nthat the minutes were not available for inspection within 10 days of approval, this office does not\nhave a basis to conclude that the Council violated section 2.06(b). If\n\nstill wishes to\n\ninspect the minutes and has not yet done so, the Council should ensure that he has the\nopportunity to do so.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\n\nplease contact me at michael.knight@ilag.gov.\nVery truly yours,\n\nMICHAEL J. KNIGHT\nAssistant\nAttorney\nGeneral\n\nPublic\nAccess\nBureau\n85881 o 206b proper mun\n\n3E- mail from Garret Wheeler, Wheeler and Dearth Law Firm, Ltd., to [Michael Knight, Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General] (April 9, 2025).\n45 ILCS 120/3.5(a) (West 2024).\n55 ILCS 140/1 et seq. (West 2024)."}
{"id":1473,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-05-28","case_number":null,"request_numbers":["86190"],"title":"Village of Hebron Board of Trustees did not violate OMA over Facebook comments","filename":"86190, issued May 28, 2025.pdf","rel_path":null,"word_count":1758,"summary":"A requester alleged that a majority of a quorum of the Village of Hebron Board of Trustees violated the Open Meetings Act by discussing public business on Facebook. The PAC determined that the specific Facebook interactions did not constitute a 'meeting' under the Act because the trustees were not deliberating with one another.","plain_summary":"A citizen complained that Village of Hebron trustees were holding illegal meetings by discussing public business in the comments section of a Facebook post. The Attorney General's office reviewed the screenshots and concluded that the trustees were not actually deliberating with each other, so no violation occurred. However, the office warned the trustees to be careful in the future, as online discussions between a majority of a quorum can easily cross the line into illegal private meetings.","holding":"The Village of Hebron Board of Trustees did not violate the Open Meetings Act regarding the Facebook activity of its trustees.","legal_question":"Whether Facebook comments posted by a majority of a quorum of a public body constitute a 'meeting' under section 1.02 of the Open Meetings Act.","disposition":"no_violation","primary_statute":["5 ILCS 120/1.02"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Hebron Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The alleged use of social media by public officials to conduct deliberations outside of a public meeting.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/meetings-via-electronic-means/86190, issued May 28, 2025.pdf","sha256":"e89f3f2013486e08595f772ef8c42db5439f97f6e8ff5dabe1ada350666cf88b","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["social media","Facebook","public business","deliberation","quorum"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nMay 28, 2025\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Michael J. Smoron\nZukowski, Rogers, Flood & McArdle\n50 Virginia Street\nCrystal Lake, Illinois 60014\nmsmoron@zrfmlaw.\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review — 2025 PAC 86190\n\nand Mr. Smoron:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Village of Hebron (Village) Board of Trustees ( Board) did not violate\n\nOMA in connection with Facebook activity by Board trustees.\nBACKGROUND\n\nOn April 12, 2025, this office received\n\ncomplete Request\n\nfor Review alleging that a majority of a quorum of the Board engaged in discussion of public\nbusiness on a Facebook page. As part of his Request for Review,\n\nincluded\n\nscreenshots of a Facebook post that included comments by three members of the Board.\nOn April 24, 2025, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond in writing to the allegations in\n\nRequest for Review.\n\nSpecifically, this office asked the Board to address whether the Facebook communications\nidentified in the Request for Review constituted a \" meeting\" as defined by section 1. 02 of\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: ( 217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: ( 618) 529- 6416\n\ncan reach us by using the 7- 1- 1 relay service.\n\nIllinoisAttorneyGeneral.\n\ngov\n\nDrive, Suite C\n\nIllinois 62903\n\n\fMr. Michael J. Smoron\n\nMay 28, 2025\nPage 2\n\nOMA. 1 This office also asked the Board to provide this office with copies of any additional\nwritten communications and descriptions of verbal communications about this subject matter if\n\nthey occurred.\nOn May 5, 2025, the Board provided its written response. On May 9, 2025, this\noffice forwarded a copy of the Board's written response to\nhe replied on May 12,\n2025.\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\"\n\n5 ILCS 120/ 1 ( West 2022). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people' s business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 1989).\n\nFor the requirements of OMA to apply, a gathering must constitute a \" meeting\" as\ndefined by section 1. 02 of OMA:\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means ( such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging),\n\nor other means of contemporaneous\n\ninteractive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nThe Board is comprised of six trustees and the Village\n\nPresident.\n\n2\n\nAccordingly, four trustees\n\nconstitute a quorum, and a majority of the quorum is three trustees.\nRequest for Review included copies of messages posted on an\n\nunspecified date in a discussion group on a Facebook page in response to a suggestion for a list\nto be compiled of people who would support an ordinance allowing the use of golf carts on\nVillage streets. Trustee Jonathan Mindham responded to a comment on the post from a\nconstituent by stating, \" I will gladly listen to this proposal,\" and acknowledged a comment from\nanother constituent within that chain of comments.'\nSeparately, Trustee Josh Stevens\n15 ILCS 120/ 1. 02 ( West 2022), as amended by Public Act 103- 626, effective January 1, 2025.\n2Hebron,\n\nIL., Code §\n\n1- 8- 1( B) ( effective November 18, 2019), available at\n\nhttps:// www.villageofhebron. org/ media/ 1926 ( last visited May 12, 2025).\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMr. Michael J. Smoron\n\nMay 28, 2025\nPage 3\ncommented, \"\n\nIf someone wants to bring it back up to the board with legwork done, I, for one,\n\nwould consider reassessing and hearing the facts and figure[ s]! i4 He further engaged with\nconstituent replies underneath his own comment. Finally, Trustee Dawn Milarksi replied to\nTrustee\n\nStevens' s comment, stating, \" I would consider reassessing it as well,\" to which Trustee\nreplied, \" you have 3 trustees that are willing to hear his proposal so far. i5 Trustee\n\nMindham\n\nMilarski also stated in response\n\nto the\n\nthread that included Trustee Stevens, \" I would add, a\n\npetition of signatures, stating that it is wanted. Also check to see if other villages request\ninsurance, inspections, rider limitations and a map of proposed driving areas. As much\ninformation you can get is best. I think the board would be interested in how other villages\n\nenforce golf cart ordinances. i6\nIn its response to this office, the Board argued that the comments of Trustees\n\nMilarski and Mindham were not made \" for the purpose of discussing or deliberating public\nbusiness amongst themselves. Instead, the posts by Trustees Milarski and Mindham were simply\nthose of Village officials acknowledging [ for] their constituents that they, again, would be\nwilling to listen to any such proposal.\" 7 The Board further argued that these communications\nwere meant as acknowledgments\nadvantages\n\nor\n\ndisadvantages\n\nto Village residents and that there is no deliberation of the\n\nof such golf cart ordinance —\n\nsimply expressions of willingness to\n\nlisten. i8 The Board also included affidavits from each of its six trustees attesting that they did\nnot engage in any additional communications on this subject matter. The affidavits from\nTrustees Milarski, Mindham, and Stevens also averred that the Facebook comments were \" only\nintended to express my willingness to listen to my constituents and not to be a discussion or\n\ndebate of Village business. i9 In his reply,\n\nargued that these communications were a\n\ndiscussion of public business, that a majority of a quorum participated, and that no public notice\n\nwas provided.\n3E- mail from\n2025),\n\nattachment\n\nto [ Public Access Bureau, Office of the Attorney General] ( April 8,\n\n1.\n\n4E- mail from\n\nto [ Public Access Bureau, Office of the Attorney General] ( April 8,\n\n2025), attachment 1.\n\n5E- mail from\n2025),\n\nattachments\n\n2025),\n\nattachment\n\nto [ Public Access Bureau, Office of the Attorney General] ( April 8,\n\n1 and 2.\n\n6E- mail from\n\nto [ Public Access Bureau, Office of the Attorney General] ( April 8,\n\n4.\n\n7Letter from Michael\n\nJ. Smoron,\n\nZukowski,\n\nRogers, Flood &\n\nMcArdle,\n\nto Benjamin\n\nJ. Silver,\n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( May 5, 2025), at [ 1].\nLetter from Michael\n\nJ. Smoron,\n\nZukowski,\n\nRogers, Flood &\n\nMcArdle,\n\nto Benjamin\n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General ( May 5, 2025), at [ 1- 2].\n\n9Affidavits of Dawn Milarksi, Jonathan Mindham, and Josh Stevens ( May 1, 2025).\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\nJ\n\nSilver,\n\n\fMr. Michael J. Smoron\n\nMay 28, 2025\nPage 4\n\nOMA \" is designed to prohibit secret deliberation and action on business which\nproperly\n\nshould be discussed in a public forum due to its potential impact on the public.\"\n\nex rel. Difanis v. Barr, 83 Ill. 2d 191,\n\nPeople\n\n202 ( 1980).\n\nOMA \" balance[ s] the right of the press and\nthe people to view the deliberative and decision - making processes of government first- hand with\n\nthe right of public officials to speak their minds freely and associate with whomever they\nchoose.\"\n\nBarr, 83 Ill. 2d at 210. A gathering does not constitute a meeting for purposes of OMA\n\nwhen the members of the public body do not participate in examination or weighing of reasons\nfor or against a course of action, an exchange of facts preliminary to a decision, or an attempt to\n\nreach accord on a specific matter of public business. Nabhani v. Coglianese, 552 F. Supp. 657,\n661 ( N. D. Ill. 1982).\n\nSee also Ill. Att'y Gen. PAC Req. Rev. Ltr. 38142, issued September 2,\n\n2016, at 3 ( unable to conclude that a Trustee Workshop convened by the Village Clerk and\nattended by a majority of a quorum of members of the Board constituted a meeting without any\nevidence that the members \" collectively engaged\" in deliberative discussions of public business).\nIn this matter, the trustees' communications, while related to a potential matter of\nBoard business, were mostly in response to and directed at constituents. Although the trustees\ndid post messages on the same comment threads, those comments did not appear to include any\ninteractive deliberations between the trustees.\n\nNone of the trustees attempted to reach a\n\nconsensus with each other or exchange facts for purposes of considering whether to pass a golf\n\ncart ordinance. Instead, the trustees' activity amounted to individually notifying constituents of\ntheir willingness to reconsider the subject of allowing golf carts on streets at a future time and\n\nrecommending how constituents could present a proposal to the Board. Therefore, the Facebook\nactivity did not constitute a \" meeting\" of the Board because the communications did not involve\n\nthe three Board members interacting with each other to deliberate about public business.\nAccordingly, this office concludes that the messages posted by the Board members did not\nviolate OMA.\n\nNevertheless, this office cautions the Board that participation in a thread on\n\nFacebook or other interactive media could lead to deliberative discussions of public business that\nviolate the Act. Before participating in discussion forums that involve other Board members,\n\ntrustees should be mindful of the requirements of OMA and ensure that they refrain from\ninteractive communications that involve at least a majority of a quorum of the members of the\nBoard.\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMr. Michael J. Smoron\n\nMay 28, 2025\nPage 5\n\nThe Public Access Counselor has determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n773) 590- 7878 or benjamin. silver@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nSupervising Attorney\nPublic Access Bureau\n\n86190 0 102 proper mun\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Trustees' Facebook comments as a public meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-86190/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nMay 28, 2025\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Michael J. Smoron\nZukowski, Rogers, Flood & McArdle\n50 Virginia Street\nCrystal Lake, Illinois 60014\nmsmoron@zrfmlaw.\n\nRE:\n\nDear\n\ncom\n\nOMA Request for Review — 2025 PAC 86190\n\nand Mr. Smoron:\n\nThis determination is issued pursuant to section 3. 5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(e) (West 2022)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Village of Hebron (Village) Board of Trustees (Board) did not violate\n\nOMA in connection with Facebook activity by Board trustees.\nBACKGROUND\n\nOn April 12, 2025, this office received\n\ncomplete Request\n\nfor Review alleging that a majority of a quorum of the Board engaged in discussion of public\nbusiness on a Facebook page. As part of his Request for Review,\n\nincluded\n\nscreenshots of a Facebook post that included comments by three members of the Board.\nOn April 24, 2025, this office forwarded a copy of the Request for Review to the\nBoard and asked it to respond in writing to the allegations in\n\nRequest for Review.\n\nSpecifically, this office asked the Board to address whether the Facebook communications\nidentified in the Request for Review constituted a \" meeting\" as defined by section 1. 02 of\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: (217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: (312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: (618) 529- 6416\n\nOMA. 1 This office also asked the Board to provide this office with copies of any additional\nwritten communications and descriptions of verbal communications about this subject matter if\n\nthey occurred.\nOn May 5, 2025, the Board provided its written response. On May 9, 2025, this\noffice forwarded a copy of the Board's written response to\nhe replied on May 12,\n2025.\n\nDETERMINATION\n\nIt is \" the public policy of this State that its citizens shall be given advance notice\n\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\"\n\n5 ILCS 120/ 1 (West 2022). \"\n\nThe Open Meetings Act provides that\n\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\n\nFor the requirements of OMA to apply, a gathering must constitute a \" meeting\" as\ndefined by section 1. 02 of OMA:\nMeeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging),\n\nor other means of contemporaneous\n\ninteractive\n\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nThe Board is comprised of six trustees and the Village\n\nPresident.\n\n2\n\nAccordingly, four trustees\n\nconstitute a quorum, and a majority of the quorum is three trustees.\nRequest for Review included copies of messages posted on an\n\nunspecified date in a discussion group on a Facebook page in response to a suggestion for a list\nto be compiled of people who would support an ordinance allowing the use of golf carts on\nVillage streets. Trustee Jonathan Mindham responded to a comment on the post from a\nconstituent by stating, \" I will gladly listen to this proposal,\" and acknowledged a comment from\nanother constituent within that chain of comments.'\nSeparately, Trustee Josh Stevens\n15 ILCS 120/ 1. 02 (West 2022), as amended by Public Act 103- 626, effective January 1, 2025.\n2 Hebron,\n\nIL., Code §\n\ncommented, \"\n\nIf someone wants to bring it back up to the board with legwork done, I, for one,\n\nwould consider reassessing and hearing the facts and figure[ s]! i4 He further engaged with\nconstituent replies underneath his own comment. Finally, Trustee Dawn Milarksi replied to\nTrustee\n\nStevens's comment, stating, \" I would consider reassessing it as well,\" to which Trustee\nreplied, \" you have 3 trustees that are willing to hear his proposal so far. i5 Trustee\n\nMindham\n\nMilarski also stated in response\n\nto the\n\nthread that included Trustee Stevens, \" I would add, a\n\npetition of signatures, stating that it is wanted. Also check to see if other villages request\ninsurance, inspections, rider limitations and a map of proposed driving areas. As much\ninformation you can get is best. I think the board would be interested in how other villages\n\nenforce golf cart ordinances. i6\nIn its response to this office, the Board argued that the comments of Trustees\n\nMilarski and Mindham were not made \" for the purpose of discussing or deliberating public\nbusiness amongst themselves. Instead, the posts by Trustees Milarski and Mindham were simply\nthose of Village officials acknowledging [ for] their constituents that they, again, would be\nwilling to listen to any such proposal.\" 7 The Board further argued that these communications\nwere meant as acknowledgments\nadvantages\n\nor\n\ndisadvantages\n\nto Village residents and that there is no deliberation of the\n\nof such golf cart ordinance —\n\nsimply expressions of willingness to\n\nlisten. i8 The Board also included affidavits from each of its six trustees attesting that they did\nnot engage in any additional communications on this subject matter. The affidavits from\nTrustees Milarski, Mindham, and Stevens also averred that the Facebook comments were \" only\nintended to express my willingness to listen to my constituents and not to be a discussion or\n\ndebate of Village business. i9 In his reply,\n\nargued that these communications were a\n\ndiscussion of public business, that a majority of a quorum participated, and that no public notice\n\nwas provided.\n3E- mail from\n2025),\n\nattachment\n\nto [ Public Access Bureau, Office of the Attorney General] (April 8,\n\n1.\n\n4E- mail from\n\nto [ Public Access Bureau, Office of the Attorney General] (April 8,\n\n2025), attachment 1.\n\n5E- mail from\n2025),\n\nattachments\n\n2025),\n\nattachment\n\nto [ Public Access Bureau, Office of the Attorney General] (April 8,\n\n1 and 2.\n\n6E- mail from\n\nto [ Public Access Bureau, Office of the Attorney General] (April 8,\n\n4.\n\n7 Letter from Michael\n\nJ. Smoron,\n\nZukowski,\n\nRogers, Flood &\n\nMcArdle,\n\nto Benjamin\n\nJ. Silver,\n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (May 5, 2025), at [ 1].\nLetter from Michael\n\nJ. Smoron,\n\nZukowski,\n\nRogers, Flood &\n\nMcArdle,\n\nto Benjamin\n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (May 5, 2025), at [ 1- 2].\n\n9 Affidavits of Dawn Milarksi, Jonathan Mindham, and Josh Stevens (May 1, 2025).\n\nOMA \" is designed to prohibit secret deliberation and action on business which\nproperly\n\nshould be discussed in a public forum due to its potential impact on the public.\"\n\nex rel. Difanis v. Barr, 83 Ill. 2d 191,\n\nPeople\n\n202 (1980).\n\nOMA \" balance[ s] the right of the press and\nthe people to view the deliberative and decision - making processes of government first- hand with\n\nthe right of public officials to speak their minds freely and associate with whomever they\nchoose.\"\n\nBarr, 83 Ill. 2d at 210. A gathering does not constitute a meeting for purposes of OMA\n\nwhen the members of the public body do not participate in examination or weighing of reasons\nfor or against a course of action, an exchange of facts preliminary to a decision, or an attempt to\n\nreach accord on a specific matter of public business. Nabhani v. Coglianese, 552 F. Supp. 657,\n661 (N. D. Ill. 1982).\n\nSee also Ill. Att'y Gen. PAC Req. Rev. Ltr. 38142, issued September 2,\n\n2016, at 3 (unable to conclude that a Trustee Workshop convened by the Village Clerk and\nattended by a majority of a quorum of members of the Board constituted a meeting without any\nevidence that the members \" collectively engaged\" in deliberative discussions of public business).\nIn this matter, the trustees' communications, while related to a potential matter of\nBoard business, were mostly in response to and directed at constituents. Although the trustees\ndid post messages on the same comment threads, those comments did not appear to include any\ninteractive deliberations between the trustees.\n\nNone of the trustees attempted to reach a\n\nconsensus with each other or exchange facts for purposes of considering whether to pass a golf\n\ncart ordinance. Instead, the trustees' activity amounted to individually notifying constituents of\ntheir willingness to reconsider the subject of allowing golf carts on streets at a future time and\n\nrecommending how constituents could present a proposal to the Board. Therefore, the Facebook\nactivity did not constitute a \" meeting\" of the Board because the communications did not involve\n\nthe three Board members interacting with each other to deliberate about public business.\nAccordingly, this office concludes that the messages posted by the Board members did not\nviolate OMA.\n\nNevertheless, this office cautions the Board that participation in a thread on\n\nFacebook or other interactive media could lead to deliberative discussions of public business that\nviolate the Act. Before participating in discussion forums that involve other Board members,\n\ntrustees should be mindful of the requirements of OMA and ensure that they refrain from\ninteractive communications that involve at least a majority of a quorum of the members of the\n\nThe Public Access Counselor has determined\n\nthat resolution\n\nof this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n773) 590- 7878 or benjamin. silver@ilag. gov. This letter serves to close this file.\nVery truly yours,\n\nBENJAMIN J. SILVER\n\nSupervising Attorney\nPublic Access Bureau\n\n86190 0 102 proper mun\n\nOffice of the Illinois Attorney General"}
{"id":1474,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-08-06","case_number":null,"request_numbers":["86632"],"title":"Indian Creek School Board violated OMA by vague vote on staff raises","filename":"86632, issued August 6, 2025.pdf","rel_path":null,"word_count":2197,"summary":"A requester alleged that the Indian Creek CUSD #425 Board of Education violated the Open Meetings Act by failing to provide adequate information for a vote on raises and by discussing non-exempt topics in closed session. The PAC determined the Board improperly discussed certain topics in closed session and requested the release of specific portions of the verbatim recording.","plain_summary":"A citizen complained that a school board violated the Open Meetings Act by not providing enough detail in its public vote on non-certified staff raises and by discussing across-the-board pay raises and a construction bid in closed session. The Attorney General's office found that the board violated the public recital requirement of section 2(e) because its description of 'non-certified staff' was too vague to inform the public which employees were affected. Regarding the closed-session allegations, the source document notes that most of the board's closed-session discussion related to specific employees, but in a couple instances the board strayed from discussing the relative merits or performance of individuals; the document does not state whether this constituted a violation. The board was advised that before voting on an employee pay raise, it should describe the impacted employees with sufficient detail, such as by including job titles, but is not required to identify them by name.","holding":"The Board violated section 2(e) of the Open Meetings Act by failing to provide a public recital that adequately identified the employees subject to the pay raise vote. The source does not state an explicit holding on the closed-session allegations.","legal_question":"Whether the Board of Education violated the Open Meetings Act by discussing non-exempt topics, specifically pay raises and construction bids, during a closed session.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["120/2(c)"],"public_body":"Indian Creek Community Unit School District #425 Board of Education","requesting_party":"Anonymous","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Education discussed pay raises and construction bids in a closed session that were not permitted under OMA exceptions.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_e/Public-recital-requirement/86632, issued August 6, 2025.pdf","sha256":"cf82414287966c3c878576e4c6245970f38fa4b47a906a92f74ce3035425dfc8","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","school board","verbatim recording","open meetings act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"August 6, 2025\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Joshua Merchant\nPresident, Board of Education\n\nIndian Creek CUSD #425\n506 South Shabbona Road\n\nShabbona, Illinois 60550\njosh. merchant@ictwolves. com\nRE: OMA Request for Review – 2025 PAC 86632\nDear\n\nand Mr. Merchant:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) ( West 2024)).\nBACKGROUND\nOn April 28, 2025,\n\nsubmitted a Request for Review\n\nalleging that the Indian Creek Community Unit School District # 425 Board of Education ( Board)\n\nviolated the requirements OMA at its April 21, 2025, meeting. Specifically,\nalleged that the Board' s vote to approve non- certified raises did not provide adequate information\n\nto inform the public of the business being conducted in violation of section 2(e) of OMA.1 He\nalso alleged that the Board improperly discussed two topics ( across- the- board pay raises and a\n\nspecific construction bid) in closed session. He contended that those topics did not fall within\n\n15 ILCS 120/2(e) ( West 2024).\n\n\fThe Honorable Joshua Merchant\nAugust 6, 2025\nPage 2\nthe scope of the exceptions in section 2(c) of OMA2 to the requirement that public business be\ndiscussed openly.\nOn May 7, 2025, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide this office with copies of the April 21, 2025, meeting agenda, open\nand closed session minutes, and closed session verbatim recording for this office' s confidential\n\nreview, together with a written response to\n\ns OMA allegations. On May 16,\n\n2025, this office received the requested materials. On May 19, 2025, this office forwarded a\n\ncopy of the Board's response to\n\nhe replied that same day.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 1989).\nPublic Recital Requirements\nSection 2(e) of OMA effectuates the intent of OMA by providing: \" No final\n\naction may be taken at a closed meeting. Final action shall be preceded by a public recital of the\nnature of the matter being considered and other information that will inform the public of the\n\nbusiness being conducted.\"\nIn Board of Education of Springfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, the Illinois Supreme Court ruled that final action must be preceded by a\n\npublic recital during the same meeting at which action is taken. The Court explained that \"[ t]he\nlanguage of section 2(e) does not mention an explanation, the significance of the action being\n\nconsidered, or the attendees' understanding. Rather, the plain meaning of the phrase 'public\nrecital of the nature of the matter being considered' is that the public body must state the essence\n\nof the matter under consideration, its character, or its identity.\" Springfield School District, 2017\nIL 120343, ¶ 46. The Court further advised that \" while the ' nature of the matter' may be recited\n\nin nonspecific terms (the approval of a loan, a contract, a purchase, a policy, or a resolution),\nother information' is necessary to inform the public of the specific item of business ( the purpose\n\nof the loan, the subject of the contract, the type of property being purchased, the title of the\npolicy, or the purpose of the resolution).\"\n\nSpringfield School District, 2017 IL 120343, ¶ 50.\n\nThe Court rejected as \" time consuming and impractical[ ] * * * any suggestion that a public\nrecital of 'key terms' is required[,]\" stating that \"[ a] public body may choose to provide such\n\ninformation in its recital at the open meeting but is not compelled to do so by section 2(e).\"\nSpringfield School District, 2017 IL 120343, ¶ 61. Rather, the Court held, \" the recital must\n25 ILCS 120/2(c) (West 2024).\n\n\fThe Honorable Joshua Merchant\nAugust 6, 2025\nPage 3\nannounce the nature of the matter under consideration, with sufficient detail to identify the\nparticular transaction or issue, but need not provide an explanation of its terms or its\n\nsignificance.\" Springfield School District, 2017 IL 120343, ¶ 64.\nIn its response to this office, the Board disputed\n\nclaim that its\n\npublic recital prior to its vote on non- certified pay raises violated section 2(e). The Board stated\n\nthat its \"public recital relating to the approval of the non-certified staff was, 'to approve the noncertified raises as presented during executive session.'\" 3 The Board argued it was not required to\n\nexplain the terms or significance of this vote and that it adequately described the final action:\nThe general nature of the matter under consideration was staff pay raises and the particular\n\ntransaction was also identified as to 'non-certified staff.' There is no requirement that the Board\nread the amount of each non- certified staff member' s salary increase.\" 4\nIn reply to that answer,\n\nmaintained that the Board' s public recital\n\nfell short of the requirements of section 2(e), even under the court's analysis in Springfield\nSchool District. He contended:\nIn our case, the \" transaction\" was a pay increase affecting an\n\nunspecified number of \"non-certified\" employees. Given that the\nDistrict employs numerous non- certified staff in different roles,\n\nand given that pay raises can vary significantly, the recital here did\nnot pinpoint a particular transaction in a way the average citizen\n\ncould understand. It conveyed neither the extent of the action (e.g.\na 5% salary increase for all 20 non- certified staff positions\n\neffective next school year\") nor the rationale (\"to maintain\ncompetitive wages\" etc.). While OMA 2(e) did not oblige the\n\nBoard to justify or fully explain the raise, it did oblige the Board to\nclearly state what it was doing.[ 5]\nAlthough the Board' s public recital identified the general nature of the matter\n\nunder consideration by referring to a pay raise, the Board did not adequately describe the\nparticular employees who were the subject of final action. \" Non- certified staff\" is vague and can\n\nbroadly include any number of employees ranging from paraprofessionals to bus drivers.\nEmployees who are \" non- certified\" may refer to different positions in different schools. While\n3Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\nChief, Office of the Attorney General (May 16, 2025), at 3.\n4Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\nChief, Office of the Attorney General (May 16, 2025), at 3.\n5Letter from\nto Teresa Lim, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General ( May 19, 2025) at [4].\n\n\fThe Honorable Joshua Merchant\nAugust 6, 2025\nPage 4\nOMA did not require the Board to explain the key terms of the approval such as the extent of the\npay raises or reasons for them, or to read the amount of each non- certified staff member' s salary\n\nincrease, it is unclear which employees fell under the umbrella of \"non-certified staff[.]\" To\nadequately inform the public, a public recital of an employment action such as a pay increase\n\nmust identify the impacted employees by their job titles. Compare Ill. Att'y Gen. PAC Req. Rev.\nLtr. 77687, issued November 2, 2023 ( board' s public recitals approving \" Salary A\" and \" Salary\n\nB\" did not identify the nature of the matters under consideration or the particular transactions at\nissue in violation of section 2(e)) with Ill. Att'y Gen. PAC Req. Rev. Ltr. 76897, issued\n\nNovember 2, 2023 (board's public recital to approve non-renewals of \"non-tenured teachers who\nare within their first three years of service\" satisfied the requirements of section 2(e)).\n\nAccordingly, this office concludes that the Board violated the public recital requirements of\nsection 2(e).\nGoing forward, this office advises the Board that before voting on an employee\n\nmatter such as a pay raise, it should describe the impacted employee or group of employees with\nsufficient detail to identify the nature of the matter under consideration and transaction at issue.\n\nThe Board need not identify employees by name but should include some description of the job\ntitle or titles.\nClosed Session Exceptions\nOMA requires that all meetings of a public body remain open to the public unless\n\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/2(a), ( c)\nWest 2024). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\n\nclearly within their scope.\" 5 ILCS 120/2(b) (West 2024).\nIn its response to this office, the Board identified that it entered closed session\npursuant to section 2(c)( 1) of OMA. Section 2(c)( 1) permits a public body to hold closed session\n\nto discuss, in pertinent part:\nThe appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park,\nrecreational, or educational setting, or specific volunteers of the\n\npublic body or legal counsel for the public body, including hearing\ntestimony on a complaint lodged against an employee, a specific\n\nindividual who serves as an independent contractor in a park,\nrecreational, or educational setting, or a volunteer of the public\n\nbody or against legal counsel for the public body to determine its\nvalidity.\n\n\fThe Honorable Joshua Merchant\nAugust 6, 2025\nPage 5\nThe Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)( 1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7,\n2011, at 4 (concluding that \"[ t]he use of the term ' specific employees' in section 2(c)( 1)\n\nsignificantly limits the scope of the exception\" to \"the hiring merits, performance, conduct or\nterms of employment of individual employees.\").\n\nThus, the 2(c)( 1) exception does not authorize\n\nclosed session discussions of salaries and insurance benefits that are broadly applicable to groups\nof employees. Ill. Att'y Gen. PAC Req. Rev. Ltr. 62955, issued October 29, 2020.\nThe Board asserted that it did not discuss in closed session the construction\n\ncontract referenced in\n\nRequest for Review. Addressing the matter of\n\nemployees, the Board asserted it \"discussed non- certified employee raises during executive\n\nsession and it is permissible to consider the compensation of employees in executive session.\" 6\nIn reply to that answer,\n\nasserted that \"the Board appears to\n\nconcede that its closed- session deliberations on April 21 centered on across- the- board raises for\n\nthe non-certified staff as a group, rather than any individual’ s performance or specific\ncompensation arrangement.\" 7 Referencing this office' s binding opinions concerning the section\n\n2(c)(1) exception,\n\ncontended that those deliberations were improper and should\n\nhave been discussed in open session.\nThis office' s review of the verbatim recording of the closed session confirmed that\n\nthe Board did not discuss the high school entrance project or the bid from Light Construction\nrelated to that project. With respect to the matter of employees, this office has also confirmed\n\nthat most of this discussion related to the employment of specific individuals and covered topics\nsuch as their particular qualifications, performance, and salaries. However, in a couple instances,\n\nthe Board strayed from discussing the relative merits or performance of specific individuals. In\nthose instances, the Board discussed issues that applied more generally to a category of an\n\nemployment position or did not concern the employment of specific individuals. Accordingly,\nthis office concludes that the Board did not strictly limit the entirety of its discussion to the\n\nemployment of specific individuals within the scope of section 2(c)(1) of OMA.\n\n6Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\nChief, Office of the Attorney General (May 16, 2025), at 3.\n7Letter from\nto Teresa Lim, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General ( May 19, 2025), at [2].\n\n\fThe Honorable Joshua Merchant\nAugust 6, 2025\nPage 6\nTo remedy this violation, this office requests that the Board vote to make publicly\navailable the following portions of the verbatim recording of the closed session: 2:03: 42- 2:06: 44;\n\n2:08:55-2:10:05.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\n\nquestions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nDeputy Bureau Chief\nPublic Access Bureau\n86632 o 2c1 proper improper 2e improper sd\ncc:\n\nVia electronic mail\n\nMs. Darcee C. Williams\nAttorney for Indian Creek CUSD # 425\n\nHimes, Petrarca & Fester\n180 North Stetson, Suite 3100\n\nChicago, Illinois 60601\ndwilliams@edlawyer. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of pay raises and construction bids","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-86632/","full_text":"August 6, 2025\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Joshua Merchant\nPresident, Board of Education\n\nIndian Creek CUSD #425\n506 South Shabbona Road\n\nShabbona, Illinois 60550\njosh. merchant@ictwolves. com\nRE: OMA Request for Review – 2025 PAC 86632\nDear\n\nand Mr. Merchant:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/3.5(e) (West 2024)).\nBACKGROUND\nOn April 28, 2025,\n\nsubmitted a Request for Review\n\nalleging that the Indian Creek Community Unit School District # 425 Board of Education (Board)\n\nviolated the requirements OMA at its April 21, 2025, meeting. Specifically,\nalleged that the Board's vote to approve non- certified raises did not provide adequate information\n\nto inform the public of the business being conducted in violation of section 2(e) of OMA.1 He\nalso alleged that the Board improperly discussed two topics (across- the- board pay raises and a\n\nspecific construction bid) in closed session. He contended that those topics did not fall within\n\nthe scope of the exceptions in section 2(c) of OMA2 to the requirement that public business be\ndiscussed openly.\nOn May 7, 2025, this office forwarded a copy of the Request for Review to the\n\nBoard and asked it to provide this office with copies of the April 21, 2025, meeting agenda, open\nand closed session minutes, and closed session verbatim recording for this office's confidential\n\nreview, together with a written response to\n\ns OMA allegations. On May 16,\n\n2025, this office received the requested materials. On May 19, 2025, this office forwarded a\n\ncopy of the Board's response to\n\nhe replied that same day.\nDETERMINATION\n\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (1989).\nPublic Recital Requirements\nSection 2(e) of OMA effectuates the intent of OMA by providing: \" No final\n\naction may be taken at a closed meeting. Final action shall be preceded by a public recital of the\nnature of the matter being considered and other information that will inform the public of the\n\nbusiness being conducted.\"\nIn Board of Education of Springfield School District No. 186 v. Attorney General,\n2017 IL 120343, ¶ 39, the Illinois Supreme Court ruled that final action must be preceded by a\n\npublic recital during the same meeting at which action is taken. The Court explained that \"[ t]he\nlanguage of section 2(e) does not mention an explanation, the significance of the action being\n\nconsidered, or the attendees' understanding. Rather, the plain meaning of the phrase 'public\nrecital of the nature of the matter being considered' is that the public body must state the essence\n\nof the matter under consideration, its character, or its identity.\" Springfield School District, 2017\nIL 120343, ¶ 46. The Court further advised that \" while the ' nature of the matter' may be recited\n\nin nonspecific terms (the approval of a loan, a contract, a purchase, a policy, or a resolution),\nother information' is necessary to inform the public of the specific item of business (the purpose\n\nof the loan, the subject of the contract, the type of property being purchased, the title of the\npolicy, or the purpose of the resolution).\"\n\nSpringfield School District, 2017 IL 120343, ¶ 50.\n\nThe Court rejected as \" time consuming and impractical[ ] * * * any suggestion that a public\nrecital of 'key terms' is required[,]\" stating that \"[ a] public body may choose to provide such\n\ninformation in its recital at the open meeting but is not compelled to do so by section 2(e).\"\nSpringfield School District, 2017 IL 120343, ¶ 61. Rather, the Court held, \" the recital must\n\nannounce the nature of the matter under consideration, with sufficient detail to identify the\nparticular transaction or issue, but need not provide an explanation of its terms or its\n\nsignificance.\" Springfield School District, 2017 IL 120343, ¶ 64.\nIn its response to this office, the Board disputed\n\nclaim that its\n\npublic recital prior to its vote on non- certified pay raises violated section 2(e). The Board stated\n\nthat its \"public recital relating to the approval of the non-certified staff was, 'to approve the noncertified raises as presented during executive session.'\" 3 The Board argued it was not required to\n\nexplain the terms or significance of this vote and that it adequately described the final action:\nThe general nature of the matter under consideration was staff pay raises and the particular\n\ntransaction was also identified as to 'non-certified staff.' There is no requirement that the Board\nread the amount of each non- certified staff member's salary increase.\" 4\nIn reply to that answer,\n\nmaintained that the Board's public recital\n\nfell short of the requirements of section 2(e), even under the court's analysis in Springfield\nSchool District. He contended:\nIn our case, the \" transaction\" was a pay increase affecting an\n\nunspecified number of \"non-certified\" employees. Given that the\nDistrict employs numerous non- certified staff in different roles,\n\nand given that pay raises can vary significantly, the recital here did\nnot pinpoint a particular transaction in a way the average citizen\n\ncould understand. It conveyed neither the extent of the action (e.g.\na 5% salary increase for all 20 non- certified staff positions\n\neffective next school year\") nor the rationale (\"to maintain\ncompetitive wages\" etc.). While OMA 2(e) did not oblige the\n\nBoard to justify or fully explain the raise, it did oblige the Board to\nclearly state what it was doing.[ 5]\nAlthough the Board's public recital identified the general nature of the matter\n\nunder consideration by referring to a pay raise, the Board did not adequately describe the\nparticular employees who were the subject of final action. \" Non- certified staff\" is vague and can\n\nbroadly include any number of employees ranging from paraprofessionals to bus drivers.\nEmployees who are \" non- certified\" may refer to different positions in different schools. While\n3 Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\nChief, Office of the Attorney General (May 16, 2025), at 3.\n4 Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\n\nOMA did not require the Board to explain the key terms of the approval such as the extent of the\npay raises or reasons for them, or to read the amount of each non- certified staff member's salary\n\nincrease, it is unclear which employees fell under the umbrella of \"non-certified staff[.]\" To\nadequately inform the public, a public recital of an employment action such as a pay increase\n\nmust identify the impacted employees by their job titles. Compare Ill. Att'y Gen. PAC Req. Rev.\nLtr. 77687, issued November 2, 2023 (board's public recitals approving \" Salary A\" and \" Salary\n\nB\" did not identify the nature of the matters under consideration or the particular transactions at\nissue in violation of section 2(e)) with Ill. Att'y Gen. PAC Req. Rev. Ltr. 76897, issued\n\nNovember 2, 2023 (board's public recital to approve non-renewals of \"non-tenured teachers who\nare within their first three years of service\" satisfied the requirements of section 2(e)).\n\nAccordingly, this office concludes that the Board violated the public recital requirements of\nsection 2(e).\nGoing forward, this office advises the Board that before voting on an employee\n\nmatter such as a pay raise, it should describe the impacted employee or group of employees with\nsufficient detail to identify the nature of the matter under consideration and transaction at issue.\n\nThe Board need not identify employees by name but should include some description of the job\ntitle or titles.\nClosed Session Exceptions\nOMA requires that all meetings of a public body remain open to the public unless\n\nthe public body properly invokes an exception in section 2(c) of OMA. 5 ILCS 120/2(a), (c)\nWest 2024). The section 2(c) exceptions are to be \" strictly construed, extending only to subjects\n\nclearly within their scope.\" 5 ILCS 120/2(b) (West 2024).\nIn its response to this office, the Board identified that it entered closed session\npursuant to section 2(c)(1) of OMA. Section 2(c)(1) permits a public body to hold closed session\n\nto discuss, in pertinent part:\nThe appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees, specific\n\nindividuals who serve as independent contractors in a park,\nrecreational, or educational setting, or specific volunteers of the\n\npublic body or legal counsel for the public body, including hearing\n\nThe Attorney General has concluded that \"the General Assembly did not intend to\npermit public bodies to hold general discussions concerning categories of employees in closed\n\nsession pursuant to section 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December\n23, 2016, at 4. Rather, \" section 2(c)(1) of OMA ' is intended to permit public bodies to candidly\n\ndiscuss the relative merits of individual employees, or the conduct of individual employees.'\" Ill.\nAtt'y Gen. Pub. Acc. Op. No. 16- 013, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No. 12- 011,\n\nissued July 11, 2012, at 3); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7,\n2011, at 4 (concluding that \"[ t]he use of the term ' specific employees' in section 2(c)(1)\n\nsignificantly limits the scope of the exception\" to \"the hiring merits, performance, conduct or\nterms of employment of individual employees.\").\n\nThus, the 2(c)(1) exception does not authorize\n\nclosed session discussions of salaries and insurance benefits that are broadly applicable to groups\nof employees. Ill. Att'y Gen. PAC Req. Rev. Ltr. 62955, issued October 29, 2020.\nThe Board asserted that it did not discuss in closed session the construction\n\ncontract referenced in\n\nRequest for Review. Addressing the matter of\n\nemployees, the Board asserted it \"discussed non- certified employee raises during executive\n\nsession and it is permissible to consider the compensation of employees in executive session.\" 6\nIn reply to that answer,\n\nasserted that \"the Board appears to\n\nconcede that its closed- session deliberations on April 21 centered on across- the- board raises for\n\nthe non-certified staff as a group, rather than any individual’ s performance or specific\ncompensation arrangement.\" 7 Referencing this office's binding opinions concerning the section\n\n2(c)(1) exception,\n\ncontended that those deliberations were improper and should\n\nhave been discussed in open session.\nThis office's review of the verbatim recording of the closed session confirmed that\n\nthe Board did not discuss the high school entrance project or the bid from Light Construction\nrelated to that project. With respect to the matter of employees, this office has also confirmed\n\nthat most of this discussion related to the employment of specific individuals and covered topics\nsuch as their particular qualifications, performance, and salaries. However, in a couple instances,\n\nthe Board strayed from discussing the relative merits or performance of specific individuals. In\nthose instances, the Board discussed issues that applied more generally to a category of an\n\nemployment position or did not concern the employment of specific individuals. Accordingly,\nthis office concludes that the Board did not strictly limit the entirety of its discussion to the\n\nemployment of specific individuals within the scope of section 2(c)(1) of OMA.\n\n6 Letter from Darcee C. Williams, Himes, Petrarca & Fester, CHTD, to Teresa Lim, Deputy Bureau\n\nTo remedy this violation, this office requests that the Board vote to make publicly\navailable the following portions of the verbatim recording of the closed session: 2:03: 42- 2:06: 44;\n\n2:08:55-2:10:05.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\n\nquestions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\n\nDeputy Bureau Chief\nPublic Access Bureau\n86632 o 2c1 proper improper 2e improper sd\ncc:\n\nVia electronic mail\n\nMs. Darcee C. Williams\nAttorney for Indian Creek CUSD # 425\n\nHimes, Petrarca & Fester\n180 North Stetson, Suite 3100\n\nChicago, Illinois 60601\ndwilliams@edlawyer. com"}
{"id":1475,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-05-27","case_number":null,"request_numbers":["86666"],"title":"Village of Cary did not violate OMA over inaccurate agenda details","filename":"86666, issued May 27, 2025.pdf","rel_path":null,"word_count":1049,"summary":"A requester alleged the Village of Cary violated the Open Meetings Act by providing inaccurate agenda information regarding a development agreement and failing to include a remote attendance vote on the agenda. The PAC determined that the allegations did not support a finding of an OMA violation and closed the file.","plain_summary":"A citizen complained that the Village of Cary's meeting agenda was misleading because it listed the wrong developer for a project and failed to list a vote on remote meeting attendance. The Attorney General's office reviewed the complaint and found that the Village did not violate the law, noting that remote attendance votes are procedural and do not require specific agenda items. Consequently, the case was closed with no further action taken.","holding":"The PAC determined that no further action is warranted because the requester failed to provide facts supporting the allegations of OMA violations.","legal_question":"Whether a public body violates the Open Meetings Act by including inaccurate details on an agenda or failing to list a procedural vote on remote attendance as a specific agenda item.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02","5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Cary","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester challenged the accuracy of agenda descriptions for a development agreement and the omission of a remote attendance vote from the meeting agenda.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/86666, issued May 27, 2025.pdf","sha256":"b5532383a66795ea5d22dee8de08dccb82ecabe332874ae9d190f33c33b1c5ed","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","remote meeting","Open Meetings Act","procedural vote"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"May 27, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Mark Kownick\nMayor\nVillage of Cary\n755 Georgetown Drive\nCary, Illinois 60013\nmkownick@caryillinois. com\nRE: OMA Request for Review – 2025 PAC 86666\nDear\n\nand Mr. Kownick:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons explained below, this office has\ndetermined that no further action is warranted as to this matter.\nOn May 5, 2025,\nsubmitted the above- referenced Request for\nReview alleging that the Village of Cary ( Village) Board of Trustees ( Board) violated OMA in\nconnection with its March 18, 2025, meeting.\nRequest for Review alleged two\nviolations regarding the agenda from that meeting.\nFirst,\nalleged that although the agenda for the March 18, 2025, Board\nmeeting indicated that the Board would vote on an agreement with JM Developers, the Board\ninstead voted on an agreement with Cordogan Clark & Associates ( Cordogan), and not JM\nDevelopers. She alleged that the Board published a revised agenda after the meeting that listed\nthe agreement with Cordogan and that the revision confirmed the original agenda was improper.\n\n\fThe Honorable Mark Kownick\nMay 27, 2025\nPage 2\nprovided this office with links to the original meeting agenda 1 and revised agenda,\nwhich both list the item of \"[ c]onsider for Approval a Resolution Approving the Execution of a\nPreliminary Development Agreement\" and further specify the purpose and location as \" for a\nProposed Residential Development of the Site Commonly Referred to as the Maplewood School\nProperty[,]\" but the revised meeting agenda includes both companies' names, not just JM\nDevelopers. 2\nSecond,\nalleged that during the March 18, 2025, Board meeting, the\nBoard voted to allow a member to participate remotely but that this vote was not listed on the\nagenda. She alleged that \" OMA mandates that all matters to be voted on must be identified on\nthe agenda[,]\" and that this violated notice requirements. 3\nThe intent of OMA is to \" ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2022). To that end,\n2.02(a) of OMA (5 ILCS 120/ 2.02(a) ( West 2022)) provides that \"[ a] n agenda for each regular\nmeeting shall be posted at the principal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding of the meeting. * * * The\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nspecifically set forth in the agenda.\" Section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) ( West 2022))\nrequires a public body' s agenda to set forth only the \" general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\" ( Emphasis added.)\nThe Public Access Bureau has previously determined that \" the General\nAssembly' s use of the term 'general subject matter' signifies that a meeting agenda must set forth\nthe main element( s), rather than the specific details, of an item on which the public body intends\nto take final action.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5\ndetermining that agenda item \" appointment of the city administrator\" did not violate section\n2.02(c) of OMA where the length of the appointment was not included).\nThe Board' s March 18, 2025, original meeting agenda adequately informed the\npublic of the \" general subject matter\" of the action under consideration in describing that the\n1Village of Cary Board of Trustees, Agenda Item VII. D., Consider for Approval a\nResolution Approving the Execution of a Preliminary Development Agreement with JM Developers, LLC for a\nProposed Residential Development of the Site Commonly Referred to as the Maplewood School Property ( March\n18, 2025).\n2Village of Cary Board of Trustees, Agenda Item VII. D., Consider for Approval a Resolution\nApproving the Execution of a Preliminary Development Agreement with Cordogan Clark & Associates and JM\nDevelopers, LLC for a Proposed Residential Development of the Site Commonly Referred to as the Maplewood\nSchool Property ( March 18, 2025),\n3E- mail from\n\nto Public Access Counselor ( May 5, 2025).\n\n\fThe Honorable Mark Kownick\nMay 27, 2025\nPage 3\nBoard would consider the approval of a proposed development agreement for a residential\ndevelopment for the Maplewood School property site. Additionally, the meeting minutes\nindicate that the agreement the Board approved identified both JM Developers and Cordogan as\nthe developers. 4 Rather than including an incorrect or misleading detail, the agenda simply\nfailed to include all the specific details concerning the agreement at issue. Although including\nthe names of both developers to be awarded the agreement would have better informed the\npublic about the agreement under consideration, section 2.02(a) of OMA did not require the\nBoard to include that additional detail in order to provide sufficiently descriptive advance notice\nof the final action to be taken. The Board should be mindful, however, that if it chooses to\ninclude specific details on agendas, it should ensure that those details are accurate and complete\nto avoid the possibility of misleading the public about the nature of actions to be considered at its\nmeetings.\nalso alleged that there should have been an agenda item regarding the\nvote to allow a member to attend remotely. That vote was a procedural matter as part of\ndetermining the roll call for the meeting and not a final action. Neither section 2.02(c) nor any\nother provision of OMA requires an agenda item for a vote to allow a member to attend remotely\nunder section 7 of OMA (5 ILCS 120/ 7 (West 2023 Supp.)).\nBecause\nRequest for Review does not set forth a summary of facts\nsupporting the allegation that the Board violated OMA, the Public Access Bureau has determined\nthat no further action is warranted in this matter.\nIf you have any questions, please contact me at the Chicago address on the first\npage of this letter. This file is closed.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n86666 o no fi war mun\n\n4Village of Cary Board of Trustees, Meeting, March 18, 2025, Minutes 9.\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda descriptions of a development agreement and a remote attendance vote","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-86666/","full_text":"May 27, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Mark Kownick\nMayor\nVillage of Cary\n755 Georgetown Drive\nCary, Illinois 60013\nmkownick@caryillinois. com\nRE: OMA Request for Review – 2025 PAC 86666\nDear\n\nand Mr. Kownick:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(b) (West 2022)). For the reasons explained below, this office has\ndetermined that no further action is warranted as to this matter.\nOn May 5, 2025,\nsubmitted the above- referenced Request for\nReview alleging that the Village of Cary (Village) Board of Trustees (Board) violated OMA in\nconnection with its March 18, 2025, meeting.\nRequest for Review alleged two\nviolations regarding the agenda from that meeting.\nFirst,\nalleged that although the agenda for the March 18, 2025, Board\nmeeting indicated that the Board would vote on an agreement with JM Developers, the Board\ninstead voted on an agreement with Cordogan Clark & Associates (Cordogan), and not JM\nDevelopers. She alleged that the Board published a revised agenda after the meeting that listed\nthe agreement with Cordogan and that the revision confirmed the original agenda was improper.\n\nprovided this office with links to the original meeting agenda 1 and revised agenda,\nwhich both list the item of \"[ c]onsider for Approval a Resolution Approving the Execution of a\nPreliminary Development Agreement\" and further specify the purpose and location as \" for a\nProposed Residential Development of the Site Commonly Referred to as the Maplewood School\nProperty[,]\" but the revised meeting agenda includes both companies' names, not just JM\nDevelopers. 2\nSecond,\nalleged that during the March 18, 2025, Board meeting, the\nBoard voted to allow a member to participate remotely but that this vote was not listed on the\nagenda. She alleged that \" OMA mandates that all matters to be voted on must be identified on\nthe agenda[,]\" and that this violated notice requirements. 3\nThe intent of OMA is to \" ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2022). To that end,\n2.02(a) of OMA (5 ILCS 120/ 2.02(a) (West 2022)) provides that \"[ a] n agenda for each regular\nmeeting shall be posted at the principal office of the public body and at the location where the\nmeeting is to be held at least 48 hours in advance of the holding of the meeting. * * * The\nrequirement of a regular meeting agenda shall not preclude the consideration of items not\nspecifically set forth in the agenda.\" Section 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2022))\nrequires a public body's agenda to set forth only the \" general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\" (Emphasis added.)\nThe Public Access Bureau has previously determined that \" the General\nAssembly's use of the term 'general subject matter' signifies that a meeting agenda must set forth\nthe main element(s), rather than the specific details, of an item on which the public body intends\nto take final action.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4-5\ndetermining that agenda item \" appointment of the city administrator\" did not violate section\n2.02(c) of OMA where the length of the appointment was not included).\nThe Board's March 18, 2025, original meeting agenda adequately informed the\npublic of the \" general subject matter\" of the action under consideration in describing that the\n1 Village of Cary Board of Trustees, Agenda Item VII. D., Consider for Approval a\nResolution Approving the Execution of a Preliminary Development Agreement with JM Developers, LLC for a\nProposed Residential Development of the Site Commonly Referred to as the Maplewood School Property (March\n18, 2025).\n2 Village of Cary Board of Trustees, Agenda Item VII. D., Consider for Approval a Resolution\nApproving the Execution of a Preliminary Development Agreement with Cordogan Clark & Associates and JM\nDevelopers, LLC for a Proposed Residential Development of the Site Commonly Referred to as the Maplewood\n\nBoard would consider the approval of a proposed development agreement for a residential\ndevelopment for the Maplewood School property site. Additionally, the meeting minutes\nindicate that the agreement the Board approved identified both JM Developers and Cordogan as\nthe developers. 4 Rather than including an incorrect or misleading detail, the agenda simply\nfailed to include all the specific details concerning the agreement at issue. Although including\nthe names of both developers to be awarded the agreement would have better informed the\npublic about the agreement under consideration, section 2.02(a) of OMA did not require the\nBoard to include that additional detail in order to provide sufficiently descriptive advance notice\nof the final action to be taken. The Board should be mindful, however, that if it chooses to\ninclude specific details on agendas, it should ensure that those details are accurate and complete\nto avoid the possibility of misleading the public about the nature of actions to be considered at its\nmeetings.\nalso alleged that there should have been an agenda item regarding the\nvote to allow a member to attend remotely. That vote was a procedural matter as part of\ndetermining the roll call for the meeting and not a final action. Neither section 2.02(c) nor any\nother provision of OMA requires an agenda item for a vote to allow a member to attend remotely\nunder section 7 of OMA (5 ILCS 120/ 7 (West 2023 Supp.)).\nBecause\nRequest for Review does not set forth a summary of facts\nsupporting the allegation that the Board violated OMA, the Public Access Bureau has determined\nthat no further action is warranted in this matter.\nIf you have any questions, please contact me at the Chicago address on the first\npage of this letter. This file is closed.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n86666 o no fi war mun\n\n4 Village of Cary Board of Trustees, Meeting, March 18, 2025, Minutes 9."}
{"id":1476,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-06-26","case_number":null,"request_numbers":["87259","87260"],"title":"Crystal Lake Park District Board may vote on discussion items without explicit agenda restriction","filename":"87259 87260, issued June 26, 2025.pdf","rel_path":null,"word_count":1863,"summary":"A requester alleged that the Crystal Lake Park District Board of Commissioners violated the Open Meetings Act by taking final action on items not clearly marked for action on its meeting agendas. The PAC determined that the Board did not violate the Act because the agendas did not contain language prohibiting final action on the items discussed.","plain_summary":"A citizen complained that a local park district board voted on items during meetings without properly listing those items as 'action items' on the public agenda. The Attorney General's office reviewed the agendas and concluded that because the board did not explicitly state that it would not take action, the votes were legally permissible. While the PAC found no violation, it advised the board to be more transparent in the future by clearly labeling agenda items that may result in a final vote.","holding":"The Board did not violate section 2.02(c) of the Open Meetings Act by taking final action on items listed for discussion on its agendas.","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by taking final action on agenda items labeled for 'discussion' when the agenda does not otherwise restrict action.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Crystal Lake Park District Board of Commissioners","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of meeting agenda descriptions regarding the intent to take final action on specific items.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/87259 87260, issued June 26, 2025.pdf","sha256":"91a6e006751de177befd7f745ec782194ba40a8ea333a389ac31631f85fddc32","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","public notice","open meetings act","final action"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"June 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Frederick M. Tiesenga\n\nPresident, Board of Commissioners\nCrystal Lake Park District\n1 East Crystal Lake Avenue\nCrystal Lake, Illinois 60014\nftiesenga@crystallakeparks. org\n\nRE: OMA Requests for Review – 2025 PAC 87259, 87260\nDear\n\nand Mr. Tiesenga :\n\nThis determination is issued pursuant to section 3.5(b ) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(b ) (West 2024)). For the reasons explained below, this office has\ndetermined that no further action is warranted as to these matters.\nOn June 8, 2025 ,\nsubmitted the above -referenced Requests for\nReview alleging that the Crystal Lake Park District Board of Commissioners (Board) violated\nOMA at its May 15, 2025, annual meeting, and June 5, 2025, committee of the whole meeting by\nvoting to approve several items but failing to indicate on its agendas that it would take action on\nthose items. She also alleged that the Board violated OMA at its May 15, 2025, meeting by\n\nvoting to approve items that were listed under a heading for \"Discussion.\" This office construed\nRequests for Review as alleging violations of section 2.02(c) of OMA.1 She\nprovided this office with the meeting agendas of both meetings. Additionally,\nalleged that the Board should not be taking final action at its committee of the whole meetings.\n15 ILCS 120/ 2.02(c) (West 2024).\n\n\fThe Honorable Frederick M. Tiesenga\nJune 26, 2025\nPage 2\nSection 3.5( a) of OMA2 provides that \"[ a] person who believes that a violation of\n\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor[,]\" and that the submission \" must include a summary of the facts supporting the\nallegation.\" Further, the Public Access Counselor's authority to resolve disputes is limited to\nalleged violations of OMA and the Freedom of Information Act (FOIA). 3 See 15 ILCS\n205/ 7( c)( 3) ( West 2024 ).\n\nAs an initial matter, OMA does not contain any provision specifically governing\nthe type of action that may be taken at \"committee of the whole\" or other committee meetings.\nOMA provides procedural safeguards and requirements for every meeting of a public body,\nincluding proper posting of notice and an agenda, 4 holding the meeting at a specified time and\nplace that is convenient and open to the public, 5 keeping minutes, 6 and allowing public\n\ncomment.7 It does not limit a public body's ability to vote on agenda items at a meeting that it\nhas designated as a \" committee of the whole\" meeting. Accordingly, the Board did not violate\nOMA by voting on agenda items at its June 5, 2025, committee of the whole meeting instead of a\nregular meeting.8\n\nSection 2.02(c) of OMA\nSection 2.02( c) of OMA provides, in pertinent part: \" Any agenda required under\nthis Section shall set forth the general subject matter of any resolution or ordinance that will be\nthe subject of final action at the meeting.\" ( Emphasis added.) The Public Access Bureau has\n\ndetermined that \"the General Assembly's use of the term 'general subject matter' signifies that a\nmeeting agenda must set forth the main element(s), rather than the specific details, of an item on\nwhich the public body intends to take final action.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 45667,\nissued February 16, 2017, at 4 -5 ( determining that agenda item \" appointment of the city\n25 ILCS 120/ 3.5(a) ( West 2024).\n35 ILCS 140/ 1 et seq. ( West 2024).\n45 ILCS 120/ 2.02) (West 202 4).\n\n55 ILCS 120/ 2.01( West 202 4).\n65 ILCS 120/ 2.06 (a) ( West 2024).\n75 ILCS 120/ 2.06 (g) (West 202 4).\n\n8This office notes that the provided materials do not indicate whether or not the Board's votes at its\nJune 5, 2025, committee of the whole meeting were its final actions on those items. The Board could better inform\nthe public by providing additional information regarding its planned course of action on items listed on its agendas\nfor committee of the whole meetings.\n\n\fThe Honorable Frederick M. Tiesenga\nJune 26, 2025\nPage 3\nadministrator\" adequately described the general subject matter of public body' s final action to\n\napprove a five -year employment contract for the city administrator).\nAdditionally, the Public Access Bureau has determined that the language of\nsection 2.02(c) of OMA \"requires a public body's agenda to identify the general subject matter of\nfinal action – not what particular action will be taken by a public body.\" Ill. At t'y Gen. PAC\nReq. Rev. Ltr. 39177, issued February 2, 2016, at 3 -4 (determining that agenda item \" Illinois Rt.\n\n53/120 Project Environmental Impact Statement\" did not violate section 2.02(c) of OMA\nbecause by inclusion on the agenda, it could be inferred that the Board anticipated taking final\naction on the matter); Ill. Att'y Gen. PAC Req. Rev. Ltr. 76015, issued April 21, 2023, at 2\nAlthough the Board could have better informed the public by providing additional information\nregarding its planned course of action on the contract, OMA does not require a public body to\n\nprovide advance notice of the specific type of action it will take af ter deliberating.\").\nHowever, this office has also determined that a public body may violate the\nrequirements of OMA by taking final action on an agenda item when the agenda include s\ninformation that would reasonably lead the public to believe only a procedural vote or\n\nintroduction will occur. \"Construing section 2.02(c) of OMA as permitting public bodies to vote\non matters that are identified on meeting agendas as merely procedural motions that precede final\naction would be contrary to the General Assembly 's intent of ensuring that agendas notify the\npublic of all matters that public bodies will be acting upon.\" Ill. Att' y Gen. PAC Req. Rev. Ltr.\n51069, issued March 7, 2018, at 3 -4 ( determining that city council violated section 2.02( c)\nbecause it took final action on a proposed ordinance that was specifically labeled in the agenda\n\nas \" first read,\" which signaled that the city council would only take a preliminary, procedural\nstep on the ordinance ).\nThe contested actions at the Board' s May 15, 2025, meeting concerned the\nBoard' s approval of Board meeting dates and two matters presented under the agenda heading of\n\nDiscussion.\" The relevant portion of the Board's May 15, 2025, meeting agenda listed those\nparticular items as:\nVI. New Business\n\nA. Approval: Updated Full-Time Compensation Structure\nB. Approval: Brochure Bid\nC. 2025 Board Meeting Dates\nD. Approval: Barlina Barn Memo of Understanding\nVII. Discussion\nA. Ordinance 11. 41 The Parks and Property owned or controlled\n\nby the Crystal Lake Park District (Pier Ordinance)\n\n\fThe Honorable Frederick M. Tiesenga\nJune 26, 2025\nPage 4\nB. Dry Storage at West Beach [9]\n\nAs to the June 5, 2025, meeting, the contested actions involved items VII through XII of the\nBoard's June 5, 2025, meeting agenda :\nVII. General Practice Manual: Policy 5.13 Preparation of the\nAgenda\n\nVIII. Policies Pertaining to Board Secretary Position - General\nPractice Manual: Policies 5.5 Meeting Attendance; 5.11 Special/\nEmergency Board Meetings; 5.16 Voting; 7.4 Park Board\nSecretary; Park District Policy Manual: Policy 6.2 Bid Opening\n\nProcedures\nIX. General Practice Manual: Policy 5.7 Regular Monthly Board\nMeetings and Committee of the Whole Meetings\nX. Lake Ecology Advisory Committee Memo of Understanding\nXI. Lake Ecology Intergovernmental Agreement\nXII. Park District Policy Manual: Policy 9.3.2 Community\nDiversity, Equity and Inclusion [10]\n\nAlthough\n\nRequest for Review also alleged that the Board's May 15, 2025,\n\nagenda packet listed agenda item VII, B as \" discussion only,\" this office 's review of the agenda\npacket posted on the Board' s website did not find any item marked for \" discussion only.\" 11\n\nBoth agendas describe the main elements of the relevant items that the Board\nvoted on at its May 15, 2025, and June 5, 2025, meetings. Neither specifically indicated that the\nBoard anticipated taking actions on any of the relevant items, but OMA did not require the Board\nto identify the particular actions to be taken on them. The heading \" New Business\" on the May\n\n15, 2025, agenda signaled that the items under it were new matters before the Board . Although\nthe item, \"2025 Board Meeting Dates,\" did not include the word \"Approval\" like the other three\nitems listed under that heading, the item also did not contain any language limiting action on it.\nIt is reasonable to infer that the Board might set a schedule of meetings for the upcoming year\n9Agenda, Crystal Lake Park District Board of Commissioners ( May 15, 2025), at [ 2].\n10Agenda, Crystal Lake Park District Board of Commissioners ( June 5, 2025), at [1].\n11See https:// www.crystallakeparks. org/upload/ 04.17.25WebPacket. pdf .\n\n\fThe Honorable Frederick M. Tiesenga\nJune 26, 2025\nPage 5\nbecause the May 15, 2025, meeting was the Board' s annual meeting. The caption at the top of\n\nthe agenda, \"Commencement of 2025 -2026 Fiscal Year,\" suggested that the Board would take\naction on certain matters typically addressed at the beginning of the fiscal y ear, such as\nscheduling meetings.\nLikewise, listing an item for \" discussion\" without any additional limiting\nlanguage does not indicate whether or not a public body m ight take action on that agenda item.\n\nUnlike \"first read,\" which is a procedural term of art suggesting a public body will take\nadditional steps before a final action, 12 the word \"discussion\" does not connote that a public body\nwill refrain from making a decision on a particular matter . See Ill. Att'y Gen. PAC Req. Rev.\nLtr. 67673, issued September 3, 2021 (city did not violate FOIA by taking final action on items\nlisted under the heading of \" Considerations\" on its agenda where additional context did not\n\nsuggest that it would not take final action on the items ). Because an agenda listing an item for\ndiscussion\" without any additional limitation does not preclude a public body from taking final\naction on the item and because neither agenda otherwise contained language further limiting\naction ,the Board did not violate section 2.02(c) by voting to approve the items at issue at its May\n15, 2025, and June 5, 2025, meetings.\n\nAccordingly, this office has determined that no further\n\naction is warranted in these matters.\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7( a),\nb), ( c) ( West 202 4 ). In that capacity, this office notes that the Board could better inform the\npublic by providing clear indication on its agendas of its expected course of action with each\n\nagenda item, including whether an item it is planning to discuss may be up for final action at the\nmeeting.\nThis file is closed. If you have any questions, please contact me at (773) 590 7878 or benjamin. silver@ilag. gov .\n\nVery truly yours,\n\nBENJAMIN J. SILVER\nSupervising Attorney\nPublic Access Bureau\n87259 87260 o no fi war pkd\n\n12See Ill. Att'y Gen. PAC Req. Rev. Ltr. 79943, issued June 13, 2023, at 3 .\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Meeting agenda descriptions for final action items","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-87259/","full_text":"June 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Frederick M. Tiesenga\n\nPresident, Board of Commissioners\nCrystal Lake Park District\n1 East Crystal Lake Avenue\nCrystal Lake, Illinois 60014\nftiesenga@crystallakeparks. org\n\nRE: OMA Requests for Review – 2025 PAC 87259, 87260\nDear\n\nand Mr. Tiesenga:\n\nThis determination is issued pursuant to section 3.5(b) of the Open Meetings Act\nOMA) (5 ILCS 120/3.5(b) (West 2024)). For the reasons explained below, this office has\ndetermined that no further action is warranted as to these matters.\nOn June 8, 2025,\nsubmitted the above -referenced Requests for\nReview alleging that the Crystal Lake Park District Board of Commissioners (Board) violated\nOMA at its May 15, 2025, annual meeting, and June 5, 2025, committee of the whole meeting by\nvoting to approve several items but failing to indicate on its agendas that it would take action on\nthose items. She also alleged that the Board violated OMA at its May 15, 2025, meeting by\n\nvoting to approve items that were listed under a heading for \"Discussion.\" This office construed\nRequests for Review as alleging violations of section 2.02(c) of OMA.1 She\nprovided this office with the meeting agendas of both meetings. Additionally,\nalleged that the Board should not be taking final action at its committee of the whole meetings.\n\nSection 3.5(a) of OMA2 provides that \"[ a] person who believes that a violation of\n\nthis Act by a public body has occurred may file a request for review with the Public Access\nCounselor[,]\" and that the submission \" must include a summary of the facts supporting the\nallegation.\" Further, the Public Access Counselor's authority to resolve disputes is limited to\nalleged violations of OMA and the Freedom of Information Act (FOIA). 3 See 15 ILCS\n205/ 7(c)(3) (West 2024).\n\nAs an initial matter, OMA does not contain any provision specifically governing\nthe type of action that may be taken at \"committee of the whole\" or other committee meetings.\nOMA provides procedural safeguards and requirements for every meeting of a public body,\nincluding proper posting of notice and an agenda, 4 holding the meeting at a specified time and\nplace that is convenient and open to the public, 5 keeping minutes, 6 and allowing public\n\ncomment.7 It does not limit a public body's ability to vote on agenda items at a meeting that it\nhas designated as a \" committee of the whole\" meeting. Accordingly, the Board did not violate\nOMA by voting on agenda items at its June 5, 2025, committee of the whole meeting instead of a\nregular meeting.8\n\nSection 2.02(c) of OMA\nSection 2.02(c) of OMA provides, in pertinent part: \" Any agenda required under\nthis Section shall set forth the general subject matter of any resolution or ordinance that will be\nthe subject of final action at the meeting.\" (Emphasis added.) The Public Access Bureau has\n\ndetermined that \"the General Assembly's use of the term 'general subject matter' signifies that a\nmeeting agenda must set forth the main element(s), rather than the specific details, of an item on\nwhich the public body intends to take final action.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 45667,\nissued February 16, 2017, at 4 -5 (determining that agenda item \" appointment of the city\n25 ILCS 120/ 3.5(a) (West 2024).\n35 ILCS 140/ 1 et seq. (West 2024).\n45 ILCS 120/ 2.02) (West 202 4).\n\n55 ILCS 120/ 2.01(West 202 4).\n65 ILCS 120/ 2.06 (a) (West 2024).\n75 ILCS 120/ 2.06 (g) (West 202 4).\n\n8 This office notes that the provided materials do not indicate whether or not the Board's votes at its\nJune 5, 2025, committee of the whole meeting were its final actions on those items. The Board could better inform\nthe public by providing additional information regarding its planned course of action on items listed on its agendas\n\nadministrator\" adequately described the general subject matter of public body's final action to\n\napprove a five -year employment contract for the city administrator).\nAdditionally, the Public Access Bureau has determined that the language of\nsection 2.02(c) of OMA \"requires a public body's agenda to identify the general subject matter of\nfinal action – not what particular action will be taken by a public body.\" Ill. At t'y Gen. PAC\nReq. Rev. Ltr. 39177, issued February 2, 2016, at 3 -4 (determining that agenda item \" Illinois Rt.\n\n53/120 Project Environmental Impact Statement\" did not violate section 2.02(c) of OMA\nbecause by inclusion on the agenda, it could be inferred that the Board anticipated taking final\naction on the matter); Ill. Att'y Gen. PAC Req. Rev. Ltr. 76015, issued April 21, 2023, at 2\nAlthough the Board could have better informed the public by providing additional information\nregarding its planned course of action on the contract, OMA does not require a public body to\n\nprovide advance notice of the specific type of action it will take af ter deliberating.\").\nHowever, this office has also determined that a public body may violate the\nrequirements of OMA by taking final action on an agenda item when the agenda include s\ninformation that would reasonably lead the public to believe only a procedural vote or\n\nintroduction will occur. \"Construing section 2.02(c) of OMA as permitting public bodies to vote\non matters that are identified on meeting agendas as merely procedural motions that precede final\naction would be contrary to the General Assembly 's intent of ensuring that agendas notify the\npublic of all matters that public bodies will be acting upon.\" Ill. Att' y Gen. PAC Req. Rev. Ltr.\n51069, issued March 7, 2018, at 3 -4 (determining that city council violated section 2.02(c)\nbecause it took final action on a proposed ordinance that was specifically labeled in the agenda\n\nas \" first read,\" which signaled that the city council would only take a preliminary, procedural\nstep on the ordinance).\nThe contested actions at the Board's May 15, 2025, meeting concerned the\nBoard's approval of Board meeting dates and two matters presented under the agenda heading of\n\nDiscussion.\" The relevant portion of the Board's May 15, 2025, meeting agenda listed those\nparticular items as:\nVI. New Business\n\nA. Approval: Updated Full-Time Compensation Structure\nB. Approval: Brochure Bid\n\nB. Dry Storage at West Beach [9]\n\nAs to the June 5, 2025, meeting, the contested actions involved items VII through XII of the\nBoard's June 5, 2025, meeting agenda:\nVII. General Practice Manual: Policy 5.13 Preparation of the\nAgenda\n\nVIII. Policies Pertaining to Board Secretary Position - General\nPractice Manual: Policies 5.5 Meeting Attendance; 5.11 Special/\nEmergency Board Meetings; 5.16 Voting; 7.4 Park Board\nSecretary; Park District Policy Manual: Policy 6.2 Bid Opening\n\nProcedures\nIX. General Practice Manual: Policy 5.7 Regular Monthly Board\nMeetings and Committee of the Whole Meetings\nX. Lake Ecology Advisory Committee Memo of Understanding\nXI. Lake Ecology Intergovernmental Agreement\nXII. Park District Policy Manual: Policy 9.3.2 Community\nDiversity, Equity and Inclusion [10]\n\nAlthough\n\nRequest for Review also alleged that the Board's May 15, 2025,\n\nagenda packet listed agenda item VII, B as \" discussion only,\" this office 's review of the agenda\npacket posted on the Board's website did not find any item marked for \" discussion only.\" 11\n\nBoth agendas describe the main elements of the relevant items that the Board\nvoted on at its May 15, 2025, and June 5, 2025, meetings. Neither specifically indicated that the\nBoard anticipated taking actions on any of the relevant items, but OMA did not require the Board\nto identify the particular actions to be taken on them. The heading \" New Business\" on the May\n\n15, 2025, agenda signaled that the items under it were new matters before the Board. Although\nthe item, \"2025 Board Meeting Dates,\" did not include the word \"Approval\" like the other three\nitems listed under that heading, the item also did not contain any language limiting action on it.\nIt is reasonable to infer that the Board might set a schedule of meetings for the upcoming year\n\nbecause the May 15, 2025, meeting was the Board's annual meeting. The caption at the top of\n\nthe agenda, \"Commencement of 2025 -2026 Fiscal Year,\" suggested that the Board would take\naction on certain matters typically addressed at the beginning of the fiscal y ear, such as\nscheduling meetings.\nLikewise, listing an item for \" discussion\" without any additional limiting\nlanguage does not indicate whether or not a public body m ight take action on that agenda item.\n\nUnlike \"first read,\" which is a procedural term of art suggesting a public body will take\nadditional steps before a final action, 12 the word \"discussion\" does not connote that a public body\nwill refrain from making a decision on a particular matter. See Ill. Att'y Gen. PAC Req. Rev.\nLtr. 67673, issued September 3, 2021 (city did not violate FOIA by taking final action on items\nlisted under the heading of \" Considerations\" on its agenda where additional context did not\n\nsuggest that it would not take final action on the items). Because an agenda listing an item for\ndiscussion\" without any additional limitation does not preclude a public body from taking final\naction on the item and because neither agenda otherwise contained language further limiting\naction,the Board did not violate section 2.02(c) by voting to approve the items at issue at its May\n15, 2025, and June 5, 2025, meetings.\n\nAccordingly, this office has determined that no further\n\naction is warranted in these matters.\nThe Office of the Public Access Counselor, however, is also charged with\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a),\nb), (c) (West 202 4). In that capacity, this office notes that the Board could better inform the\npublic by providing clear indication on its agendas of its expected course of action with each\n\nagenda item, including whether an item it is planning to discuss may be up for final action at the\nmeeting.\nThis file is closed. If you have any questions, please contact me at (773) 590 7878 or benjamin. silver@ilag. gov.\n\nVery truly yours,\n\nBENJAMIN J. SILVER\nSupervising Attorney\nPublic Access Bureau\n87259 87260 o no fi war pkd\n\n12 See Ill. Att'y Gen. PAC Req. Rev. Ltr. 79943, issued June 13, 2023, at 3."}
{"id":1477,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-06-26","case_number":null,"request_numbers":["87334"],"title":"Office of Mines & Minerals coal mine hearing not subject to Open Meetings Act","filename":"87334, issued June 26, 2025.pdf","rel_path":null,"word_count":654,"summary":"The requester alleged that the Office of Mines & Minerals violated the Open Meetings Act by prohibiting the recording of a public hearing regarding a coal mine permit application. The PAC determined that the hearing was governed by administrative code provisions rather than the Open Meetings Act, and therefore closed the file.","plain_summary":"A citizen complained that a state agency prevented them from recording a public hearing about a coal mine permit. The Attorney General's office reviewed the complaint and found that the hearing was not subject to the Open Meetings Act, but rather to specific administrative rules. Because the Open Meetings Act did not apply, the PAC closed the case without finding a violation.","holding":"The PAC determined that the Open Meetings Act did not apply to the administrative hearing in question, resulting in no further action.","legal_question":"Whether a public hearing conducted under administrative code provisions for a coal mine permit application constitutes a 'meeting' subject to the requirements of the Open Meetings Act.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.05"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Office of Mines & Minerals of the Illinois Department of Natural Resources","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The requester sought to record a public hearing concerning a permit application for a coal mine.","ocr_status":"llm_reocr","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/1.02/definition-of-meeting/87334, issued June 26, 2025.pdf","sha256":"f433b3a3da3e6e326da04800a33bdb071f7579d1949f839f1d07a839897f397f","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recording meetings","public hearing","Open Meetings Act","administrative hearing"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 26, 2025\n\nRE: OMA Request for Review - 2025 PAC 87334\nDear\nThis office has received your Request for Review alleging that the Office of\nMines & Minerals of the Illinois Department of Natural Resources (Department) violated the\nOpen Meetings Act (5 ILCS 120/1 et seq. (West 2024)). Specifically, you alleged the Office of\nMines & Minerals violated section 2.05 of OMA 1 by prohibiting members of the public from\nrecording a public hearing concerning a permit application for a coal mine.\n\"meeting\" as:\n\nThe requirements of OMA apply to meetings of a public body. OMA defines a\nany gathering, whether in person or by video or audio conference,\ntelephone call, electronic means (such as, without limitation,\nelectronic mail, electronic chat, and instant messaging), or other\nmeans of contemporaneous interactive communication, of a\nmajority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. 5 ILCS 120/1. 02 (West\n2024).\n1\n\n5 ILCS 120/2.05 (West 2024) (\"Subject to the provisions of Section 8-701 of the Code of Civil\nProcedure, any person may record the proceedings at meetings required to be open by this Act by tape, film or other\nmeans. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such\nrecordings.\").\n500 South 2nd Street\nSpringfield, Illinois 62701\n(2 I 7) 782-1090 • Fax: (2 I 7) 782-7046\n\n115 South LaSalle Street\nChicago, TI!inois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, nlinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fJune 26, 2025\nPage 2\nA gathering does not constitute a \"meeting\" for purposes of OMA when members of a public\nbody do not participate in \"examination or weighing of reasons for or against a course of action,\"\nan \"exchange of facts preliminary to a decision,\" or an \"attempt to reach accord on a specific\nmatter\" of public business. Nabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982).\nThe Department held the April 9, 2025, hearing to receive public comment on a\npermit revision application submitted by Hillsboro Energy, LLC. 2 The procedures for such a\nhearing are set forth in section 1773.14 of title 62 of the Administrative Code (62 Ill. Adm. Code\n§ 1773.14 (2025), last amended at 43 Ill. Reg. 12897, effective October 16, 2019). Those\nprovisions require the Department to appoint a hearing officer to conduct an \"informal\" hearing\nand to make \"[e]very effort*** to allow all persons who wish to make a statement to do so.\" 3\nThey do not contemplate a quorum or a majority of a quorum of the members of a public body\ndeliberating on public business.\nYour Request for Review does not allege that a quorum or a majority of a quorum\nof the members of public body, such as a board or a commission of the Department that holds\nmeetings subject to the requirements of OMA, attended the public hearing and deliberated about\npublic business. Rather, the public hearing appears to have been conducted by a hearing officer\nfor the Department to receive information and comments in accordance with the administrative\ncode provisions referenced above. Because those provisions rather than OMA governed the\nhearing, you have not provided facts supporting the allegation that the Office of Mines &\nMinerals and/or the Department violated OMA by prohibiting members of the public from\nrecording the meeting. 5 ILCS 120/3.5(a) (West 2024) (requiring a Request for Review to\n\"include a summary of the facts supporting the allegation[ ]\" that a public body violated OMA).\nAccordingly, this office will take no further action in this matter.\nThis file is closed. If you have any questions concerning OMA, you may contact\nme at (312) 814-6756 or steven.silverman@ilag.gov.\n\n87334 o no fi war sa\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access & Opinions Division\n\n2Public Notice Illinois,\nhttps://www.publicnoticeillinois.com/(S(ivi3rpydmixt2pjipgig3yd3))/PDFDocument.aspx?SID=ivi3rpydmixt2pjipgi\ng3yd36018752&FileName=3801 l 7.pdf (last visited June 24, 2025).\n\n16, 2019).\n\n3 62 Ill. Adm. Code§ l 773.14(d)(3) (2025), last amended at 43 Ill. Reg. 12897, effective October\n\nOffice of the Illinois Attorney General\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 26, 2025\n\nRE: OMA Request for Review - 2025 PAC 87334\nDear\nThis office has received your Request for Review alleging that the Office of\nMines & Minerals of the Illinois Department of Natural Resources (Department) violated the\nOpen Meetings Act (5 ILCS 120/1 et seq. (West 2024)). Specifically, you alleged the Office of\nMines & Minerals violated section 2.05 of OMA 1 by prohibiting members of the public from\nrecording a public hearing concerning a permit application for a coal mine.\n\"meeting\" as:\n\nThe requirements of OMA apply to meetings of a public body. OMA defines a\nany gathering, whether in person or by video or audio conference,\ntelephone call, electronic means (such as, without limitation,\nelectronic mail, electronic chat, and instant messaging), or other\nmeans of contemporaneous interactive communication, of a\nmajority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. 5 ILCS 120/1. 02 (West\n2024).\n1\n\n5 ILCS 120/2.05 (West 2024) (\"Subject to the provisions of Section 8-701 of the Code of Civil\nProcedure, any person may record the proceedings at meetings required to be open by this Act by tape, film or other\nmeans. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such\nrecordings.\").\n500 South 2nd Street\nSpringfield, Illinois 62701\n(2 I 7) 782-1090 • Fax: (2 I 7) 782-7046\n\n115 South LaSalle Street\nChicago, TI!inois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, nlinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\n\nA gathering does not constitute a \"meeting\" for purposes of OMA when members of a public\nbody do not participate in \"examination or weighing of reasons for or against a course of action,\"\nan \"exchange of facts preliminary to a decision,\" or an \"attempt to reach accord on a specific\nmatter\" of public business. Nabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982).\nThe Department held the April 9, 2025, hearing to receive public comment on a\npermit revision application submitted by Hillsboro Energy, LLC. 2 The procedures for such a\nhearing are set forth in section 1773.14 of title 62 of the Administrative Code (62 Ill. Adm. Code\n§ 1773.14 (2025), last amended at 43 Ill. Reg. 12897, effective October 16, 2019). Those\nprovisions require the Department to appoint a hearing officer to conduct an \"informal\" hearing\nand to make \"[e]very effort*** to allow all persons who wish to make a statement to do so.\" 3\nThey do not contemplate a quorum or a majority of a quorum of the members of a public body\ndeliberating on public business.\nYour Request for Review does not allege that a quorum or a majority of a quorum\nof the members of public body, such as a board or a commission of the Department that holds\nmeetings subject to the requirements of OMA, attended the public hearing and deliberated about\npublic business. Rather, the public hearing appears to have been conducted by a hearing officer\nfor the Department to receive information and comments in accordance with the administrative\ncode provisions referenced above. Because those provisions rather than OMA governed the\nhearing, you have not provided facts supporting the allegation that the Office of Mines &\nMinerals and/or the Department violated OMA by prohibiting members of the public from\nrecording the meeting. 5 ILCS 120/3.5(a) (West 2024) (requiring a Request for Review to\n\"include a summary of the facts supporting the allegation[ ]\" that a public body violated OMA).\nAccordingly, this office will take no further action in this matter.\nThis file is closed. If you have any questions concerning OMA, you may contact\nme at (312) 814-6756 or steven.silverman@ilag.gov.\n\n87334 o no fi war sa\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access & Opinions Division\n\n2 Public Notice Illinois,\nhttps://www.publicnoticeillinois.com/(S(ivi3rpydmixt2pjipgig3yd3))/PDFDocument.aspx?SID=ivi3rpydmixt2pjipgi\ng3yd36018752&FileName=3801 l 7.pdf (last visited June 24, 2025).\n\n16, 2019).\n\n3 62 Ill. Adm. Code§ l 773.14(d)(3) (2025), last amended at 43 Ill. Reg. 12897, effective October\n\nOffice of the Illinois Attorney General","plain_summary_pre_resummarize":null,"card_headline":"Recording of a coal mine permit hearing","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-87334/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 26, 2025\n\n[REDACTED]\n\nRE: OMA Request for Review – 2025 PAC 87334\n\nDear [REDACTED]\n\nThis office has received your Request for Review alleging that the Office of\nMines & Minerals of the Illinois Department of Natural Resources (Department) violated the\nOpen Meetings Act (5 ILCS 120/1 et seq. (West 2024)). Specifically, you alleged the Office of\nMines & Minerals violated section 2.05 of OMA¹ by prohibiting members of the public from\nrecording a public hearing concerning a permit application for a coal mine.\n\nThe requirements of OMA apply to meetings of a public body. OMA defines a\n\"meeting\" as:\n\nany gathering, whether in person or by video or audio conference,\ntelephone call, electronic means (such as, without limitation,\nelectronic mail, electronic chat, and instant messaging), or other\nmeans of contemporaneous interactive communication, of a\nmajority of a quorum of the members of a public body held for\nthe purpose of discussing public business or, for a 5-member\npublic body, a quorum of the members of a public body held for\nthe purpose of discussing public business. 5 ILCS 120/1.02 (West\n2024).\n\n¹5 ILCS 120/2.05 (West 2024) (\"Subject to the provisions of Section 8-701 of the Code of Civil\nProcedure, any person may record the proceedings at meetings required to be open by this Act by tape, film or other\nmeans. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such\nrecordings.\").\n\nJune 26, 2025\nPage 2\n\nA gathering does not constitute a \"meeting\" for purposes of OMA when members of a public\nbody do not participate in \"examination or weighing of reasons for or against a course of action,\"\nan \"exchange of facts preliminary to a decision,\" or an \"attempt to reach accord on a specific\nmatter\" of public business. Nabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982).\n\nThe Department held the April 9, 2025, hearing to receive public comment on a\npermit revision application submitted by Hillsboro Energy, LLC.2 The procedures for such a\nhearing are set forth in section 1773.14 of title 62 of the Administrative Code (62 Ill. Adm. Code\n§ 1773.14 (2025), last amended at 43 Ill. Reg. 12897, effective October 16, 2019). Those\nprovisions require the Department to appoint a hearing officer to conduct an \"informal\" hearing\nand to make \"[e]very effort *** to allow all persons who wish to make a statement to do so.\"3\nThey do not contemplate a quorum or a majority of a quorum of the members of a public body\ndeliberating on public business.\n\nYour Request for Review does not allege that a quorum or a majority of a quorum\nof the members of public body, such as a board or a commission of the Department that holds\nmeetings subject to the requirements of OMA, attended the public hearing and deliberated about\npublic business. Rather, the public hearing appears to have been conducted by a hearing officer\nfor the Department to receive information and comments in accordance with the administrative\ncode provisions referenced above. Because those provisions rather than OMA governed the\nhearing, you have not provided facts supporting the allegation that the Office of Mines &\nMinerals and/or the Department violated OMA by prohibiting members of the public from\nrecording the meeting. 5 ILCS 120/3.5(a) (West 2024) (requiring a Request for Review to\n\"include a summary of the facts supporting the allegation[]\" that a public body violated OMA).\nAccordingly, this office will take no further action in this matter.\n\nThis file is closed. If you have any questions concerning OMA, you may contact\nme at (312) 814-6756 or steven.silverman@ilag.gov.\n\nVery truly yours,\n\n[REDACTED]\n\nSTEVE SILVERMAN\nDeputy Division Chief\nPublic Access & Opinions Division\n\n2Public Notice Illinois,\nhttps://www.publicnoticeillinois.com/(S(ivi3rpydmixt2pjipgig3yd3))/PDFDocument.aspx?SID=ivi3rpydmixt2pjipgi\ng3yd36018752&FileName=380117.pdf (last visited June 24, 2025).\n\n362 Ill. Adm. Code § 1773.14(d)(3) (2025), last amended at 43 Ill. Reg. 12897, effective October\n16, 2019)."}
{"id":1478,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-12-12","case_number":null,"request_numbers":["87758"],"title":"Aurora Civic Authority violated OMA with inadequate meeting minutes for three 2025 meetings","filename":"87758, issued December 12, 2025.pdf","rel_path":null,"word_count":2317,"summary":"The PAC determined that the Aurora Civic Center Authority violated the Open Meetings Act by failing to provide adequate summaries of discussions in meeting minutes, failing to document votes for closed sessions, and failing to conduct semi-annual reviews of closed session minutes.","plain_summary":"A citizen complained that the Aurora Civic Center Authority Board's meeting minutes were too vague, failed to record votes on closed session, and that the board hadn't reviewed its closed session minutes as required. The Public Access Bureau found that the board violated the Open Meetings Act because the minutes for three meetings did not adequately summarize discussions. The board acknowledged the other issues and took steps to resolve them, so the determination only addressed the minutes. No order or directive was issued.","holding":"The Aurora Civic Center Authority Board of Directors violated the Open Meetings Act by failing to provide adequate summaries of discussions in the minutes of its March 26, April 23, and May 28, 2025 meetings.","legal_question":"Whether the Aurora Civic Center Authority violated the Open Meetings Act regarding the adequacy of meeting minutes, the recording of votes, and the semi-annual review of closed session minutes.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Aurora Civic Center Authority","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The adequacy of meeting minutes, documentation of votes, and the semi-annual review of closed session minutes.","ocr_status":"ok","ocr_quality":96.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_a/87758, issued December 12, 2025.pdf","sha256":"7ed2a6a4e13852092ead143ab3ed0c7e78a60bd485bc2ad96563c0aa030e8a70","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting minutes","closed session","voting records","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"December 12, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Julie A. Tappendorf\nAncel Glink\n140 South Dearborn Street, Sixth Floor\nChicago, Illinois 60603\njtappendorf@ancelglink. com\nRE: OMA Request for Review – 2025 PAC 87758\nDear\n\nand Ms. Tappendorf:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) ( West 2024)). For the reasons explained below, the Public Access\nBureau concludes that the Aurora Civic Center Authority ( Authority) Board of Directors ( Board)\nviolated OMA in connection with three meetings.\nBACKGROUND\nOn June 28, 2025,\nsubmitted a Request for Review to this\noffice alleging ( 1) the minutes for the March 26, 2025, April 23, 2025, and May 28, 2025, Board\nmeetings did not adequately summarize the discussions held, ( 2) the April minutes failed to\ndocument the votes of the members on adjourning to closed session, and ( 3) the Board had failed\nto conduct the requisite semi- annual review of its closed session minutes in the past 18 months.\n\n\fMs. Julie A. Tappendorf\nDecember 12, 2025\nPage 2\nOn July 9, 2025, this office sent a copy of the Request for Review to the Board\nand asked it to provide copies of any recordings of the open sessions of the meetings, as well as a\nwritten response to\nallegations. On July 18, 2025, the Board provided this office\nwith its written response. The Board confirmed that it did not make verbatim recordings of the\nopen sessions of these meetings ( which it was not required to make under OMA, but might have\nchosen to make). That same day, this office forwarded a copy of the Board' s response to\nand notified him of his opportunity to reply; he substantively replied to the Board' s\nresponse on July 21, 2025. Separately, on July 9, 2025, and July 22, 2025,\nsent\nbackground information to this office about Board meetings and Authority committee meetings\nin previous years.\nDETERMINATION\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2024). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people' s business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 1989).\nAs to\nallegation that the Board failed to conduct a timely semi- annual\nreview of its closed session minutes, section 2.06(d) of OMA 1 provides, in pertinent part:\nEach public body shall periodically meet to review minutes\nof all closed meetings. Meetings to review minutes shall occur\nevery 6 months, or as soon thereafter as is practicable, taking into\naccount the nature and meeting schedule of the public body. * * *\nAt such meetings a determination shall be made, and reported in an\nopen session that ( 1) the need for confidentiality still exists as to all\nor part of those minutes or (2) that the minutes or portions thereof\nno longer require confidential treatment and are available for\npublic inspection.\nIn its response to this office' s inquiry letter, the Board acknowledged that it had\nfailed to schedule its semi- annual review, but stated that it had since scheduled the review for the\nJuly 23, 2025, Board meeting. Because it appears the Board has now met to review the minutes\nof its closed session meetings, that part of the Request for Review has been resolved.\nWith respect to\nallegation that the April 23, 2025, Board meeting\nminutes did not record the vote of each member on the question of holding a meeting closed to\n15 ILCS 120/2.06(d) (West 2024).\n\n\fMs. Julie A. Tappendorf\nDecember 12, 2025\nPage 3\nthe public, section 2a of OMA (5 ILCS 120/ 2a ( West 2024)) provides, in relevant part: \" The\nvote of each member on the question of holding a meeting closed to the public and a citation to\nthe specific exception contained in Section 2 of this Act which authorizes the closing of the\nmeeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and\nentered into the minutes of the meeting.\"\nIn its response to this office' s inquiry letter, the Board acknowledged that it failed\nto record the vote to go into closed session at the April 23, 2025, meeting in the meeting minutes,\nas well as in the minutes for certain prior meetings where closed sessions occurred, and that it\nwould approve revised meeting minutes at the July 23, 2025, Board meeting. Accordingly, given\nthat it appears that the Board has also resolved this issue, this determination will proceed by\naddressing whether the pertinent Board meeting minutes comply with the requirements of section\n2.06(a)( 3) of OMA. 2\nSection 2.06(a) of OMA provides:\na) All public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\ntheir closed meetings in the form of an audio or video recording.\nMinutes shall include, but need not be limited to:\n1) the date, time and place of the meeting;\n2) the members of the public body recorded as either\npresent or absent and whether the members were physically\npresent or present by means of video or audio conference;\nand\n3) a summary of discussion on all matters proposed,\ndeliberated, or decided, and a record of any votes taken.\nEmphasis added.)\nOMA does not further address the degree of information that must be included in\nmeeting minutes beyond section 2.06(a), and no Illinois reviewing court appears to have\naddressed the issue. In construing a statute, the primary objective is to ascertain and give effect\nto the intent of the legislature, and the most reliable indicator of that intent \" is the statutory\nlanguage, given its plain and ordinary meaning.\" Better Government Ass'n v. Illinois High\nSchool Ass'n, 2017 IL 121124, ¶ 22. The term \" summary\" has an ordinary and commonlyunderstood meaning: \" A summary of something is a short account of it, which gives the main\npoints but not the details.\" Collins Online Dictionary,\nhttps:// www.collinsdictionary. com/ dictionary/ english/ summary. Accordingly, the Public Access\nBureau has previously concluded that \"[ m]inutes need not contain the level of detail of a\ntranscript,\" but \" merely identify[ ing] the topics\" of the discussion is insufficient. Ill. Att'y Gen.\n25 ILCS 120/2.06(a)( 3) (West 2024).\n\n\fMs. Julie A. Tappendorf\nDecember 12, 2025\nPage 4\nPAC Req. Rev. Ltr. 51987, issued April 18, 2018, at 7; see also Ill. Att'y Gen. PAC Req. Rev.\nLtr. 26700, issued April 9, 2015, at 5 (one- sentence general statements in minutes about\ndiscussion' are insufficient to satisfy section 2.06(a)( 3).\").\nIn its response to this office' s inquiry letter, the Board argued that \"[ a] reasonable\ninterpretation of 'summary' of discussion under Section 2.06(a)( 3) is that minutes identify the\ntopic of the matter being discussed prior to a vote being taken on that matter.\" 3 The Board\nargued that the pertinent meeting minutes were sufficient for the following reasons:\nM]uch of the Authority Board meetings involve matters that do\nnot result in any Board proposal, deliberation, or vote that would\ntrigger the requirement of Section 2.06(a)( 3). Where the Board has\ntaken action that triggers that Section, it has included a brief\nsummary of discussion that identifies the matter to be voted on in\nits meeting minutes. The Authority is aware of no case or opinion\nthat would require the minutes to be a transcript, or a line-by-line\ndetail of each person' s statements, or a recitation of the 'key points'\nof a matter that is voted on. * * * [ T]here simply is no OMA\nrequirement that there be a detailed or verbatim recitation of a\npublic body' s discussions in the meeting minutes. That position is\nnot consistent with the common meaning of 'summary' which is a\nbrief statement, and not a detailed accounting of every point made\nby every person who participated in the discussion.[ 4] 5\nIn reply,\ncited definitions from multiple dictionaries for the meanings\nof five terms: proposed, deliberated, decided, discussion, and summary.\nargued, in\n3Letter from Julie A. Tappendorf, Ancel Glink, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( July 18, 2025), at 2.\n4Letter from Julie A. Tappendorf, Ancel Glink, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau ( July 18, 2025), at 3.\n5Citing Board of Education of Springfield School District No. 186 v. Attorney General, 2017 IL\n120343, the Board' s response appears to suggest that the requisite amount of detail in meeting minutes may be\nconstrued as comparable to an adequate \" public recital\" under section 2(e) of OMA (5 ILCS 120/ 2(e) ( West 2024)).\nSection 2(e) provides that \"[ f]inal action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\" The Illinois Supreme\nCourt has held that section 2(e) requires a public body to \" state the essence of the matter under consideration, its\ncharacter, or its identity[,]\" and \"' other information' * * * to inform the public of the specific item of business ( the\npurpose of the loan, the subject of the contract, the type of property being purchased, the title of the policy, or the\npurpose of the resolution).\" Board of Education of Springfield School District No. 186, 2017 IL 120343, ¶¶ 46, 50.\nBecause section 2(e) does not require a public body to recite \" a summary\" of the discussion that preceded its final\naction, it is not relevant to section 2.06( a)( 3) of OMA.\n\n\fMs. Julie A. Tappendorf\nDecember 12, 2025\nPage 5\nrelevant part, that \" it is clear that to only 'identify the topic' does not meet the definition of\nsummary.' A 'summary' should include a brief statement of the main facts. A 'summary' does\nnot require a verbatim transcript, but it must state the main points of the discussion.\" 6\nBased on the plain language of section 2.06(a)( 3), the Public Access Bureau has\npreviously determined that \" OMA does not require a public body to provide a detailed summary\nof any matter that was merely discussed by a public body if the discussion did not rise to the\nlevel of deliberating upon or considering a decision relating thereto.\" ( Emphasis in original.) Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 25528, issued March 15, 2014, at 3 (school board members'\nquestions about strategic plan not required to be summarized minutes because board president\ndeferred further discussion of the plan to a special meeting). Compare Ill. Att'y Gen. PAC Req.\nRev. Ltr. 36909, issued September 2, 2015, at 2 (public body not required to summarize in\nmeeting minutes a brief discussion concerning a public comment which did not pertain to\nsubstantive matters being considered by the public body) with Ill. Att'y Gen. PAC Req. Rev. Ltr.\n41916, issued April 3, 2016, at 2 (public body violated section 2.06(a)( 3) of OMA by failing to\nsummarize discussions concerning the adoption of an ordinance).\nThis office has reviewed the available materials, including the pertinent Board\nmeeting minutes provided by\nin his Request for Review. The minutes at times fall\nshort of the minimum information necessary to comply with section 2.06(a)( 3) because they are\ndevoid of the main points of discussions of matters considered by the Board. The March 26,\n2025, April 23, 2025, and May 28, 2025, Board meeting minutes each list \" financials presented\nand discussed[,]\" 7 and indicate that the financials were unanimously approved by the Board. It\nalso seems apparent from other entries in the minutes, such as \"[ t]he board discussed how the\nremaining funds can be used to support a capital campaign and the DEVO department[,]\" 8 that\nadditional discussions extended beyond stray remarks about those topics and rose to the level of\ndeliberation or consideration. Those entries merely identified the topic that was considered by\nthe Board without any description of even the general contours of the discussion, leaving the\npublic without a short account of what transpired as required by section 2.06(a)( 3) of OMA. The\nlack of detailed descriptions about other topics of discussion precludes this office from\ndiscerning whether they concerned substantive matters which were required to be summarized in\nthe meeting minutes.\n\n6Memo from\n\nto [Katie] Goldsmith, Attorney General' s Office ( July 21, 2025), at\n\n3.\n7Aurora Civic Center Authority Board of Directors, Meeting, March 26, 2025, Minutes 1; Aurora\nCivic Center Authority Board of Directors, Meeting, April 23, 2025, Minutes 1; Aurora Civic Center Authority\nBoard of Directors, Meeting, May 28, 2025, Minutes 1.\n8Aurora Civic Center Authority Board of Directors, Meeting, May 28, 2025, Minutes 1.\n\n\fMs. Julie A. Tappendorf\nDecember 12, 2025\nPage 6\nTo the extent possible, this office asks the Board to amend these meeting minutes\nto provide a sufficient summary of the proceedings with respect to financials and any other\ndiscussions that are not summarized which relate to matters proposed, deliberated or decided.\nThis office also asks the Board to be mindful when drafting and approving meeting minutes in\nthe future of the requirement to include sufficient descriptions of discussions that section\n2.06(a)( 3) requires the Board to summarize, rather than merely identifying topics.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n87758 o 206a minutes improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's meeting minutes and vote documentation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-87758/","full_text":"December 12, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Julie A. Tappendorf\nAncel Glink\n140 South Dearborn Street, Sixth Floor\nChicago, Illinois 60603\njtappendorf@ancelglink. com\nRE: OMA Request for Review – 2025 PAC 87758\nDear\n\nand Ms. Tappendorf:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3.5(e) (West 2024)). For the reasons explained below, the Public Access\nBureau concludes that the Aurora Civic Center Authority (Authority) Board of Directors (Board)\nviolated OMA in connection with three meetings.\nBACKGROUND\nOn June 28, 2025,\nsubmitted a Request for Review to this\noffice alleging (1) the minutes for the March 26, 2025, April 23, 2025, and May 28, 2025, Board\nmeetings did not adequately summarize the discussions held, (2) the April minutes failed to\ndocument the votes of the members on adjourning to closed session, and (3) the Board had failed\nto conduct the requisite semi- annual review of its closed session minutes in the past 18 months.\n\nOn July 9, 2025, this office sent a copy of the Request for Review to the Board\nand asked it to provide copies of any recordings of the open sessions of the meetings, as well as a\nwritten response to\nallegations. On July 18, 2025, the Board provided this office\nwith its written response. The Board confirmed that it did not make verbatim recordings of the\nopen sessions of these meetings (which it was not required to make under OMA, but might have\nchosen to make). That same day, this office forwarded a copy of the Board's response to\nand notified him of his opportunity to reply; he substantively replied to the Board's\nresponse on July 21, 2025. Separately, on July 9, 2025, and July 22, 2025,\nsent\nbackground information to this office about Board meetings and Authority committee meetings\nin previous years.\nDETERMINATION\nIt is the \" public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/ 1 (West 2024). \" The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nAs to\nallegation that the Board failed to conduct a timely semi- annual\nreview of its closed session minutes, section 2.06(d) of OMA 1 provides, in pertinent part:\nEach public body shall periodically meet to review minutes\nof all closed meetings. Meetings to review minutes shall occur\nevery 6 months, or as soon thereafter as is practicable, taking into\naccount the nature and meeting schedule of the public body. * * *\nAt such meetings a determination shall be made, and reported in an\nopen session that (1) the need for confidentiality still exists as to all\nor part of those minutes or (2) that the minutes or portions thereof\nno longer require confidential treatment and are available for\npublic inspection.\nIn its response to this office's inquiry letter, the Board acknowledged that it had\nfailed to schedule its semi- annual review, but stated that it had since scheduled the review for the\nJuly 23, 2025, Board meeting. Because it appears the Board has now met to review the minutes\nof its closed session meetings, that part of the Request for Review has been resolved.\nWith respect to\nallegation that the April 23, 2025, Board meeting\nminutes did not record the vote of each member on the question of holding a meeting closed to\n\nthe public, section 2a of OMA (5 ILCS 120/ 2a (West 2024)) provides, in relevant part: \" The\nvote of each member on the question of holding a meeting closed to the public and a citation to\nthe specific exception contained in Section 2 of this Act which authorizes the closing of the\nmeeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and\nentered into the minutes of the meeting.\"\nIn its response to this office's inquiry letter, the Board acknowledged that it failed\nto record the vote to go into closed session at the April 23, 2025, meeting in the meeting minutes,\nas well as in the minutes for certain prior meetings where closed sessions occurred, and that it\nwould approve revised meeting minutes at the July 23, 2025, Board meeting. Accordingly, given\nthat it appears that the Board has also resolved this issue, this determination will proceed by\naddressing whether the pertinent Board meeting minutes comply with the requirements of section\n2.06(a)(3) of OMA. 2\nSection 2.06(a) of OMA provides:\na) All public bodies shall keep written minutes of all their\nmeetings, whether open or closed, and a verbatim record of all\ntheir closed meetings in the form of an audio or video recording.\nMinutes shall include, but need not be limited to:\n1) the date, time and place of the meeting;\n2) the members of the public body recorded as either\npresent or absent and whether the members were physically\npresent or present by means of video or audio conference;\nand\n3) a summary of discussion on all matters proposed,\ndeliberated, or decided, and a record of any votes taken.\nEmphasis added.)\nOMA does not further address the degree of information that must be included in\nmeeting minutes beyond section 2.06(a), and no Illinois reviewing court appears to have\naddressed the issue. In construing a statute, the primary objective is to ascertain and give effect\nto the intent of the legislature, and the most reliable indicator of that intent \" is the statutory\nlanguage, given its plain and ordinary meaning.\" Better Government Ass'n v. Illinois High\nSchool Ass'n, 2017 IL 121124, ¶ 22. The term \" summary\" has an ordinary and commonlyunderstood meaning: \" A summary of something is a short account of it, which gives the main\npoints but not the details.\" Collins Online Dictionary,\nhttps:// www.collinsdictionary. com/ dictionary/ english/ summary. Accordingly, the Public Access\nBureau has previously concluded that \"[ m]inutes need not contain the level of detail of a\ntranscript,\" but \" merely identify[ ing] the topics\" of the discussion is insufficient. Ill. Att'y Gen.\n\nPAC Req. Rev. Ltr. 51987, issued April 18, 2018, at 7; see also Ill. Att'y Gen. PAC Req. Rev.\nLtr. 26700, issued April 9, 2015, at 5 (one- sentence general statements in minutes about\ndiscussion' are insufficient to satisfy section 2.06(a)(3).\").\nIn its response to this office's inquiry letter, the Board argued that \"[ a] reasonable\ninterpretation of 'summary' of discussion under Section 2.06(a)(3) is that minutes identify the\ntopic of the matter being discussed prior to a vote being taken on that matter.\" 3 The Board\nargued that the pertinent meeting minutes were sufficient for the following reasons:\nM]uch of the Authority Board meetings involve matters that do\nnot result in any Board proposal, deliberation, or vote that would\ntrigger the requirement of Section 2.06(a)(3). Where the Board has\ntaken action that triggers that Section, it has included a brief\nsummary of discussion that identifies the matter to be voted on in\nits meeting minutes. The Authority is aware of no case or opinion\nthat would require the minutes to be a transcript, or a line-by-line\ndetail of each person's statements, or a recitation of the 'key points'\nof a matter that is voted on. * * * [ T]here simply is no OMA\nrequirement that there be a detailed or verbatim recitation of a\npublic body's discussions in the meeting minutes. That position is\nnot consistent with the common meaning of 'summary' which is a\nbrief statement, and not a detailed accounting of every point made\nby every person who participated in the discussion.[ 4] 5\nIn reply,\ncited definitions from multiple dictionaries for the meanings\nof five terms: proposed, deliberated, decided, discussion, and summary.\nargued, in\n3 Letter from Julie A. Tappendorf, Ancel Glink, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau (July 18, 2025), at 2.\n4 Letter from Julie A. Tappendorf, Ancel Glink, to Katie Goldsmith, Assistant Attorney General,\nPublic Access Bureau (July 18, 2025), at 3.\n5 Citing Board of Education of Springfield School District No. 186 v. Attorney General, 2017 IL\n120343, the Board's response appears to suggest that the requisite amount of detail in meeting minutes may be\nconstrued as comparable to an adequate \" public recital\" under section 2(e) of OMA (5 ILCS 120/ 2(e) (West 2024)).\nSection 2(e) provides that \"[ f]inal action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\" The Illinois Supreme\nCourt has held that section 2(e) requires a public body to \" state the essence of the matter under consideration, its\ncharacter, or its identity[,]\" and \"' other information' * * * to inform the public of the specific item of business (the\npurpose of the loan, the subject of the contract, the type of property being purchased, the title of the policy, or the\npurpose of the resolution).\" Board of Education of Springfield School District No. 186, 2017 IL 120343, ¶¶ 46, 50.\nBecause section 2(e) does not require a public body to recite \" a summary\" of the discussion that preceded its final\n\nrelevant part, that \" it is clear that to only 'identify the topic' does not meet the definition of\nsummary.' A 'summary' should include a brief statement of the main facts. A 'summary' does\nnot require a verbatim transcript, but it must state the main points of the discussion.\" 6\nBased on the plain language of section 2.06(a)(3), the Public Access Bureau has\npreviously determined that \" OMA does not require a public body to provide a detailed summary\nof any matter that was merely discussed by a public body if the discussion did not rise to the\nlevel of deliberating upon or considering a decision relating thereto.\" (Emphasis in original.) Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 25528, issued March 15, 2014, at 3 (school board members'\nquestions about strategic plan not required to be summarized minutes because board president\ndeferred further discussion of the plan to a special meeting). Compare Ill. Att'y Gen. PAC Req.\nRev. Ltr. 36909, issued September 2, 2015, at 2 (public body not required to summarize in\nmeeting minutes a brief discussion concerning a public comment which did not pertain to\nsubstantive matters being considered by the public body) with Ill. Att'y Gen. PAC Req. Rev. Ltr.\n41916, issued April 3, 2016, at 2 (public body violated section 2.06(a)(3) of OMA by failing to\nsummarize discussions concerning the adoption of an ordinance).\nThis office has reviewed the available materials, including the pertinent Board\nmeeting minutes provided by\nin his Request for Review. The minutes at times fall\nshort of the minimum information necessary to comply with section 2.06(a)(3) because they are\ndevoid of the main points of discussions of matters considered by the Board. The March 26,\n2025, April 23, 2025, and May 28, 2025, Board meeting minutes each list \" financials presented\nand discussed[,]\" 7 and indicate that the financials were unanimously approved by the Board. It\nalso seems apparent from other entries in the minutes, such as \"[ t]he board discussed how the\nremaining funds can be used to support a capital campaign and the DEVO department[,]\" 8 that\nadditional discussions extended beyond stray remarks about those topics and rose to the level of\ndeliberation or consideration. Those entries merely identified the topic that was considered by\nthe Board without any description of even the general contours of the discussion, leaving the\npublic without a short account of what transpired as required by section 2.06(a)(3) of OMA. The\nlack of detailed descriptions about other topics of discussion precludes this office from\ndiscerning whether they concerned substantive matters which were required to be summarized in\nthe meeting minutes.\n\n6 Memo from\n\nto [Katie] Goldsmith, Attorney General's Office (July 21, 2025), at\n\n3.\n7 Aurora Civic Center Authority Board of Directors, Meeting, March 26, 2025, Minutes 1; Aurora\nCivic Center Authority Board of Directors, Meeting, April 23, 2025, Minutes 1; Aurora Civic Center Authority\n\nTo the extent possible, this office asks the Board to amend these meeting minutes\nto provide a sufficient summary of the proceedings with respect to financials and any other\ndiscussions that are not summarized which relate to matters proposed, deliberated or decided.\nThis office also asks the Board to be mindful when drafting and approving meeting minutes in\nthe future of the requirement to include sufficient descriptions of discussions that section\n2.06(a)(3) requires the Board to summarize, rather than merely identifying topics.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at katherine. goldsmith@ilag. gov.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n87758 o 206a minutes improper mun"}
{"id":1479,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-11-26","case_number":null,"request_numbers":["88005","88118"],"title":"Oak Brook Park District violated OMA by discussing vacancies and discipline in closed session","filename":"88005 88118, issued November 26, 2025.pdf","rel_path":null,"word_count":2043,"summary":"The PAC investigated allegations that the Oak Brook Park District Board held an improper closed session on May 19, 2025, to discuss a Commissioner's seat vacancy and disciplinary action. The PAC determined the closed session was improper but required no further action because the District had already released the relevant minutes and recordings.","plain_summary":"A citizen complained that the Oak Brook Park District held a private meeting that should have been open to the public. The Attorney General's office agreed that the meeting was improperly closed. However, because the District already released the records of that meeting to the public, the case is now closed with no further action required.","holding":"The Oak Brook Park District Board violated the Open Meetings Act by holding an improper closed session discussion.","legal_question":"Whether the Oak Brook Park District Board of Commissioners violated the Open Meetings Act by discussing the vacancy of a Commissioner's seat and disciplinary action in a closed session.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Oak Brook Park District","requesting_party":null,"pac_outcome":"Violation found, but no further remedial action necessary","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a closed session to discuss a Commissioner's seat vacancy and potential disciplinary action.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_c/2_c_3/88005 88118, issued November 26, 2025.pdf","sha256":"2c8634f6e230b335c88ccfffdf13186bf40ac109201eb713183ddc4dfbec79de","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["closed session","Open Meetings Act","meeting minutes","verbatim recording"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"November 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Tina Chan\nCommissioner, Board of Commissioners\nOak Brook Park District\n1450 Forest Gate Road\nOak Brook, Illinois 60523\ntchan@obparks. org\nfindfoodlove@gmail. com\nVia electronic mail\nMr. Steven B. Adams\nRobbins Schwartz\n190 South LaSalle Street, Suite 2550\nChicago, Illinois 60603\nsadams@robbins- schwartz. com\nRE: OMA Requests for Review – 2025 PAC 88005; 2025 PAC 88118\nDear\n\nMs. Chan, and Mr. Adams:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). This office has consolidated two Requests for Review in this determination because\nthey concern similar allegations regarding the same meeting. For the reasons explained below,\nthe Public Access Bureau concludes that the Oak Brook Park District ( District) Board of\nCommissioners ( Board) held an improper closed session discussion during its May 19, 2025,\n1\n\n15 ILCS 120/3.5(e) ( West 2024).\n\n\fThe Honorable Tina Chan\nMr. Steven B. Adams\nNovember 26, 2025\nPage 2\nmeeting. However, because the Board has already publicly disclosed the closed session verbatim\nrecording and closed session minutes for that meeting, no further remedial action is necessary.\nBACKGROUND\nOn July 15, 2025,\nsubmitted a Request for Review 2 to the\nPublic Access Bureau alleging that the Board held an improper closed session discussion during\nits May 19, 2025, meeting to \" consider declaring a Commissioner' s seat vacant or to deliberate\ndisciplinary action in connection with absences.\" 3 On July 22, 2025, this office forwarded a\ncopy of the Request for Review to the Board and asked it to provide copies of the closed session\nmeeting minutes and the closed session verbatim recording of the Board' s May 19, 2025,\nmeeting, for this office' s confidential review. This office also requested that the Board provide a\ndetailed written answer to the allegation that it improperly discussed the potential removal of a\ncommissioner or the subject of an absenteeism policy for commissioners, during closed session\nat the May 19, 2025, meeting.\nOn July 24, 2025, the Board provided this office with the requested materials and\nits written response. Later that day, this office forwarded a copy of the Board' s written response\nto\nand notified him of the opportunity to reply; he replied on July 30, 2025.\nOn July 16, 2025, Ms. Tina Chan, in her capacity as a Board Commissioner,\nsubmitted a Request for Review 4 to the Public Access Bureau alleging, among other things, that\nthe Board improperly discussed a proposed new ordinance concerning commissioners'\nabsenteeism in closed session during the Board' s May 19, 2025, meeting. On August 29, 2025,\nthis office forwarded a copy of the Request for Review to the Board and asked it to provide the\nsame materials referenced above together with a detailed written response to the OMA\nallegations in Ms. Chan' s Request for Review.\nCounsel for the Board responded on September 9, 2025, by stating that after\nreceiving this office' s August 29, 2025, letter, the Board held a special meeting on September 4,\n2025, and voted to release the closed session minutes and verbatim recording for the Board' s\nMay 19, 2025, meeting. The Board' s answer indicated that the closed session minutes and\nverbatim recording had been posted to the District' s website for public viewing. The Board\nstated that it \"took this action to avoid further disputes concerning the closed meeting and to\n22025 PAC 88005.\n3E- mail from\n42025 PAC 88118.\n\nto Public Access [ Bureau] ( July 15, 2025).\n\n\fThe Honorable Tina Chan\nMr. Steven B. Adams\nNovember 26, 2025\nPage 3\navoid devoting additional staff time and attorneys' fees relating to the matter\" and noted that \" the\nrelease of these items should not be construed as an admission by the District of any\nwrongdoing.\" 5\nand Ms. Chan have since reaffirmed their ongoing interest in\nobtaining a determination in their respective matters regarding the applicability of section 2(c)(3)\nof OMA 6 to the Board' s closed session discussion.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2024). Section 2(a) of\nOMA 7 provides that \"[ a] ll meetings of public bodies shall be open to the public unless excepted\nin subsection ( c) and closed in accordance with Section 2a.\" The section 2(c) exceptions \" are in\nderogation of the requirement that public bodies meet in the open, and therefore, the exceptions\nare to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS\n120/ 2(b) (West 2024).\nIn its July 24, 2025, answer to this office, 8 the Board asserted that its closed\nsession discussion was proper under section 2(c)(3) of OMA. Section 2(c)(3) of OMA permits a\npublic body to enter closed session to discuss:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\noffice, when the public body is given power to remove the\noccupant under law or ordinance. ( Emphasis added.)\nThe Public Access Bureau has previously determined that the plain language of this provision\nlimits the exception to discussions about the qualifications, merits, or behavior of a particular\nperson and does not include other incidental procedural matters. See, for example, Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 50734, issued February 21, 2018, at 3 (determining closed session discussion\nabout State statutes and rules related to filling a township supervisor position exceeded the scope\n5Letter from Steven B. Adams, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Illinois Attorney General, and Shannon Barnaby, Senior Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General ( September 10, 2025), at 1-2.\n65 ILCS 120/2(c)(3) (West 2024).\n75 ILCS 120/2(a) ( West 2024).\n82025 PAC 88005.\n\n\fThe Honorable Tina Chan\nMr. Steven B. Adams\nNovember 26, 2025\nPage 4\nof section 2(c)(3) of OMA). This office has also issued a binding opinion concluding that a\nclosed session discussion concerning the behavior or performance of a public official is only\nproper under section 2(c)(3) of OMA when the public body possesses the authority to remove\nthe public official under law or ordinance. See Ill. Att'y Gen. Pub. Acc. Op. No. 17-013, issued\nNovember 21, 2017, at 4-5 (finding section 2(c)(3) of OMA did not permit a village board to\ndiscuss comments made by a board member because the Board did not have the authority to\nremove the board member from office). Further, the Public Access Bureau has previously\ndetermined that a public body' s ability to declare a public office vacant based on a public\nofficial' s behavior or performance is not the same as a public body' s ability to remove the public\nofficial from office. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 68219, issued July 13, 2022, at 5-6\nThe narrowly construed section 2(c)(3) exception does not permit the City Council to engage\nin wide- ranging discussions of an officer' s performance or discipline or removal from office\nsimply because a provision of the Municipal Code authorizes the City Council to declare the City\nClerk' s office vacant under certain conditions.\").\nIn this instance, the Board contended that a combined reading of section 2(c)(3) of\nOMA together with section 2-25(vii) of the Park District Code ( Code) 9 supports the conclusion\nthat a park district is permitted to \" adopt an ordinance that requires its board members to attend\nmeetings of the board or face discipline, including the removal of such board member.\" 10 The\nBoard stated that it entered closed session during the May 19, 2025, meeting \" for the express\npurpose of discussing whether to adopt an ordinance requiring its members to attend meetings or\nto face discipline\" and that it \"did not discuss the removal, potential or otherwise, of a\ncommissioner.\" 11\nThis office has reviewed the closed session verbatim recording and the closed\nsession meeting minutes from the Board' s May 19, 2025, meeting. As the Board stated in its\nresponse to this office, the closed session discussion focused on a \" specific commissioner' s\nattendance ( or lack thereof) at Board meetings and, after discussing issues relating to that\nspecific commissioner, determined that adoption of an ordinance was proper and directed the\nDistrict' s attorney to draft such an ordinance.\" 12\n\n970 ILCS 1205/ 2-25(vii) (West 2024).\n10Letter from David J. Freeman, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau ( July 24, 2025), at 2.\n11Letter from David J. Freeman, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau ( July 24, 2025), at 2.\n12Letter from David J. Freeman, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau ( July 24, 2025), at 2.\n\n\fThe Honorable Tina Chan\nMr. Steven B. Adams\nNovember 26, 2025\nPage 5\nSection 2-25(vii) of the Code provides, in pertinent part, \"[ w]henever any\nmember of the governing board of any park district * * * ( vii) neglects to perform the duties of\nhis or her office or attend meetings of the board for the length of time as the board fixes by\nordinance * * * that office may be declared vacant.\" This provision of the Code gives the Board\nthe authority to create an ordinance to determine that there is a \" vacancy\" in a public office if a\ncommissioner fails to attend a fixed number of meetings. However, a determination that there is\na \" vacancy\" in an office is not tantamount to a public body having the authority to remove the\nofficeholder. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 68219, issued July 13, 2022, at 5. The\nBoard has not argued, and it is not apparent to this office, that there is another provision of the\nCode that permits the Board to remove a commissioner, who is an elected public official, from\noffice. Therefore, the Board' s brief discussion of the specific commissioner' s performance of his\nduties in that role was not authorized by section 2(c)(3) of OMA.\nEven assuming that a law or ordinance did grant the Board the authority to\nremove a commissioner, the closed session discussion primarily focused on the merits of\nadopting an ordinance that addresses the general subject matter of commissioner absenteeism\nand not the \" discipline, performance or removal\" of a specific commissioner. Discussions about\ngeneral or incidental procedures for appointing or removing a public official do not fall within\nthe scope of section 2(c)( 3) of OMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n47555, issued August 29, 2017, at 5 (deciding section 2(c)(3) of OMA did not authorize a closed\nsession discussion about the process for appointing a board member).\nAccordingly, this office concludes that section 2(c)(3) of OMA did not authorize\nthe Board' s May 19, 2025, closed session discussion. Generally, when a public body' s closed\nsession discussion exceeds the scope of an exception in section 2(c) of OMA, this office will\nrequest that the public body vote to make publicly available the applicable closed session\nverbatim recording and closed session meeting minutes. As was stated above, the Board has\nalready taken that action, and therefore, there is no further remedial action that this office can\ndirect. Nonetheless, this office cautions the Board to narrowly limit its closed session\ndiscussions to the scope of the section 2(c) exceptions that it cites to close portions of its\nmeetings in the future.\n\n\fThe Honorable Tina Chan\nMr. Steven B. Adams\nNovember 26, 2025\nPage 6\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. If you have OMA\nquestions, you may contact me at shannon. barnaby@ilag. gov.\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n88005 88118 o 2c3 improper pkd\ncc:\n\nVia electronic mail\nThe Honorable Sharon Knitter\nPresident, Board of Commissioners\nOak Brook Park District\n1450 Forest Gate Road\nOak Brook, Illinois 60523\nsknitter@obparks. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed-session discussion of a board vacancy and discipline","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-88005/","full_text":"November 26, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Tina Chan\nCommissioner, Board of Commissioners\nOak Brook Park District\n1450 Forest Gate Road\nOak Brook, Illinois 60523\ntchan@obparks. org\nfindfoodlove@gmail. com\nVia electronic mail\nMr. Steven B. Adams\nRobbins Schwartz\n190 South LaSalle Street, Suite 2550\nChicago, Illinois 60603\nsadams@robbins- schwartz. com\nRE: OMA Requests for Review – 2025 PAC 88005; 2025 PAC 88118\nDear\n\nMs. Chan, and Mr. Adams:\n\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\nOMA). This office has consolidated two Requests for Review in this determination because\nthey concern similar allegations regarding the same meeting. For the reasons explained below,\n\nmeeting. However, because the Board has already publicly disclosed the closed session verbatim\nrecording and closed session minutes for that meeting, no further remedial action is necessary.\nBACKGROUND\nOn July 15, 2025,\nsubmitted a Request for Review 2 to the\nPublic Access Bureau alleging that the Board held an improper closed session discussion during\nits May 19, 2025, meeting to \" consider declaring a Commissioner's seat vacant or to deliberate\ndisciplinary action in connection with absences.\" 3 On July 22, 2025, this office forwarded a\ncopy of the Request for Review to the Board and asked it to provide copies of the closed session\nmeeting minutes and the closed session verbatim recording of the Board's May 19, 2025,\nmeeting, for this office's confidential review. This office also requested that the Board provide a\ndetailed written answer to the allegation that it improperly discussed the potential removal of a\ncommissioner or the subject of an absenteeism policy for commissioners, during closed session\nat the May 19, 2025, meeting.\nOn July 24, 2025, the Board provided this office with the requested materials and\nits written response. Later that day, this office forwarded a copy of the Board's written response\nto\nand notified him of the opportunity to reply; he replied on July 30, 2025.\nOn July 16, 2025, Ms. Tina Chan, in her capacity as a Board Commissioner,\nsubmitted a Request for Review 4 to the Public Access Bureau alleging, among other things, that\nthe Board improperly discussed a proposed new ordinance concerning commissioners'\nabsenteeism in closed session during the Board's May 19, 2025, meeting. On August 29, 2025,\nthis office forwarded a copy of the Request for Review to the Board and asked it to provide the\nsame materials referenced above together with a detailed written response to the OMA\nallegations in Ms. Chan's Request for Review.\nCounsel for the Board responded on September 9, 2025, by stating that after\nreceiving this office's August 29, 2025, letter, the Board held a special meeting on September 4,\n2025, and voted to release the closed session minutes and verbatim recording for the Board's\nMay 19, 2025, meeting. The Board's answer indicated that the closed session minutes and\nverbatim recording had been posted to the District's website for public viewing. The Board\nstated that it \"took this action to avoid further disputes concerning the closed meeting and to\n\navoid devoting additional staff time and attorneys' fees relating to the matter\" and noted that \" the\nrelease of these items should not be construed as an admission by the District of any\nwrongdoing.\" 5\nand Ms. Chan have since reaffirmed their ongoing interest in\nobtaining a determination in their respective matters regarding the applicability of section 2(c)(3)\nof OMA 6 to the Board's closed session discussion.\nDETERMINATION\nThe intent of OMA is \" to ensure that the actions of public bodies be taken openly\nand that their deliberations be conducted openly.\" 5 ILCS 120/ 1 (West 2024). Section 2(a) of\nOMA 7 provides that \"[ a] ll meetings of public bodies shall be open to the public unless excepted\nin subsection (c) and closed in accordance with Section 2a.\" The section 2(c) exceptions \" are in\nderogation of the requirement that public bodies meet in the open, and therefore, the exceptions\nare to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS\n120/ 2(b) (West 2024).\nIn its July 24, 2025, answer to this office, 8 the Board asserted that its closed\nsession discussion was proper under section 2(c)(3) of OMA. Section 2(c)(3) of OMA permits a\npublic body to enter closed session to discuss:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the public\nbody is given power to appoint under law or ordinance, or the\ndiscipline, performance or removal of the occupant of a public\noffice, when the public body is given power to remove the\noccupant under law or ordinance. (Emphasis added.)\nThe Public Access Bureau has previously determined that the plain language of this provision\nlimits the exception to discussions about the qualifications, merits, or behavior of a particular\nperson and does not include other incidental procedural matters. See, for example, Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 50734, issued February 21, 2018, at 3 (determining closed session discussion\nabout State statutes and rules related to filling a township supervisor position exceeded the scope\n5 Letter from Steven B. Adams, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Illinois Attorney General, and Shannon Barnaby, Senior Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General (September 10, 2025), at 1-2.\n\nof section 2(c)(3) of OMA). This office has also issued a binding opinion concluding that a\nclosed session discussion concerning the behavior or performance of a public official is only\nproper under section 2(c)(3) of OMA when the public body possesses the authority to remove\nthe public official under law or ordinance. See Ill. Att'y Gen. Pub. Acc. Op. No. 17-013, issued\nNovember 21, 2017, at 4-5 (finding section 2(c)(3) of OMA did not permit a village board to\ndiscuss comments made by a board member because the Board did not have the authority to\nremove the board member from office). Further, the Public Access Bureau has previously\ndetermined that a public body's ability to declare a public office vacant based on a public\nofficial's behavior or performance is not the same as a public body's ability to remove the public\nofficial from office. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 68219, issued July 13, 2022, at 5-6\nThe narrowly construed section 2(c)(3) exception does not permit the City Council to engage\nin wide- ranging discussions of an officer's performance or discipline or removal from office\nsimply because a provision of the Municipal Code authorizes the City Council to declare the City\nClerk's office vacant under certain conditions.\").\nIn this instance, the Board contended that a combined reading of section 2(c)(3) of\nOMA together with section 2-25(vii) of the Park District Code (Code) 9 supports the conclusion\nthat a park district is permitted to \" adopt an ordinance that requires its board members to attend\nmeetings of the board or face discipline, including the removal of such board member.\" 10 The\nBoard stated that it entered closed session during the May 19, 2025, meeting \" for the express\npurpose of discussing whether to adopt an ordinance requiring its members to attend meetings or\nto face discipline\" and that it \"did not discuss the removal, potential or otherwise, of a\ncommissioner.\" 11\nThis office has reviewed the closed session verbatim recording and the closed\nsession meeting minutes from the Board's May 19, 2025, meeting. As the Board stated in its\nresponse to this office, the closed session discussion focused on a \" specific commissioner's\nattendance (or lack thereof) at Board meetings and, after discussing issues relating to that\nspecific commissioner, determined that adoption of an ordinance was proper and directed the\nDistrict's attorney to draft such an ordinance.\" 12\n\n970 ILCS 1205/ 2-25(vii) (West 2024).\n10 Letter from David J. Freeman, Robbins Schwartz, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau (July 24, 2025), at 2.\n\nSection 2-25(vii) of the Code provides, in pertinent part, \"[ w]henever any\nmember of the governing board of any park district * * * (vii) neglects to perform the duties of\nhis or her office or attend meetings of the board for the length of time as the board fixes by\nordinance * * * that office may be declared vacant.\" This provision of the Code gives the Board\nthe authority to create an ordinance to determine that there is a \" vacancy\" in a public office if a\ncommissioner fails to attend a fixed number of meetings. However, a determination that there is\na \" vacancy\" in an office is not tantamount to a public body having the authority to remove the\nofficeholder. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 68219, issued July 13, 2022, at 5. The\nBoard has not argued, and it is not apparent to this office, that there is another provision of the\nCode that permits the Board to remove a commissioner, who is an elected public official, from\noffice. Therefore, the Board's brief discussion of the specific commissioner's performance of his\nduties in that role was not authorized by section 2(c)(3) of OMA.\nEven assuming that a law or ordinance did grant the Board the authority to\nremove a commissioner, the closed session discussion primarily focused on the merits of\nadopting an ordinance that addresses the general subject matter of commissioner absenteeism\nand not the \" discipline, performance or removal\" of a specific commissioner. Discussions about\ngeneral or incidental procedures for appointing or removing a public official do not fall within\nthe scope of section 2(c)(3) of OMA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr.\n47555, issued August 29, 2017, at 5 (deciding section 2(c)(3) of OMA did not authorize a closed\nsession discussion about the process for appointing a board member).\nAccordingly, this office concludes that section 2(c)(3) of OMA did not authorize\nthe Board's May 19, 2025, closed session discussion. Generally, when a public body's closed\nsession discussion exceeds the scope of an exception in section 2(c) of OMA, this office will\nrequest that the public body vote to make publicly available the applicable closed session\nverbatim recording and closed session meeting minutes. As was stated above, the Board has\nalready taken that action, and therefore, there is no further remedial action that this office can\ndirect. Nonetheless, this office cautions the Board to narrowly limit its closed session\ndiscussions to the scope of the section 2(c) exceptions that it cites to close portions of its\n\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. These files are closed. If you have OMA\nquestions, you may contact me at shannon. barnaby@ilag. gov.\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n88005 88118 o 2c3 improper pkd\ncc:\n\nVia electronic mail\nThe Honorable Sharon Knitter\nPresident, Board of Commissioners\nOak Brook Park District\n1450 Forest Gate Road\nOak Brook, Illinois 60523\nsknitter@obparks. org"}
{"id":1480,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-12-15","case_number":null,"request_numbers":["89570"],"title":"Nashville Community High School Board violated OMA by vague meeting agendas","filename":"89570, issued December 15, 2025.pdf","rel_path":null,"word_count":1090,"summary":"A requester alleged that the Nashville Community High School District No. 99 Board of Education failed to provide sufficient notice of action items on its meeting agendas, and the PAC determined the Board violated the Open Meetings Act by using overly vague language.","plain_summary":"A school board was accused of not being clear enough on its meeting agendas about what specific actions it planned to vote on. The Attorney General's office agreed, finding that vague terms like 'Resignation(s)' or 'Employment' did not give the public enough information. Because the board promised to be more specific in the future, the case was closed without further action.","holding":"The Board of Education violated section 2.02(c) of the Open Meetings Act by failing to provide the general subject matter of action items on its meeting agendas.","legal_question":"Whether the Board of Education violated section 2.02(c) of the Open Meetings Act by failing to provide the general subject matter of action items on its meeting agendas.","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Nashville Community High School District No. 99 Board of Education","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of agenda descriptions for action items regarding personnel matters during school board meetings.","ocr_status":"ok","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/89570, issued December 15, 2025.pdf","sha256":"f4b6f1ceaff31c89ec461ebf51fa7e28764fea57ade3a7d0dac357163eb1fa00","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["meeting agenda","school board","public notice","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"December 15, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Heather Maschhoff\n\nPresident, Board of Education\nNashville Community High School District No. 99\n\n1300 South Mills Street\nNashville, Illinois 62263\n\nhmaschho@nashville-k12.org\nRE: OMA Request for Review – 2025 PAC 89570\nDear\n\nand President Maschhoff:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) ( 5 ILCS 120/ 3.5(e) ( West 2024)). For the reasons discussed below, the Public Access\n\nBureau concludes that the Nashville Community High School District No. 99 (District) Board of\nEducation ( Board) violated OMA in connection with its August 20, 2025, and September 17,\n\n2025, meetings.\nOn September 28, 2025,\n\nsubmitted this Request for Review\n\nalleging that the Board improperly took final action on items during its above- referenced regular\n\nmeetings without having provided the general subject matter of two action items on each of the\nrespective meeting agendas. On October 14, 2025, this office forwarded a copy of the Request\n\nfor Review to the Board and asked it to provide a written response to the allegations, together\nwith copies of the notice, agenda, and minutes for the meetings in question. On October 20,\n\n2025, the Board's legal counsel provided a written response and the supporting materials on\nbehalf of the Board. On October 24, 2025,\n\nsubmitted a reply alleging additional\n\nnotice violations for similar action items from the September 17, 2025, meeting.\n\n\fThe Honorable Heather Maschhoff\nDecember 15, 2025\nPage 2\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people' s business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 ( 5th Dist. 1989).\nSection 2.02( c) of OMA ( 5 ILCS 120/ 2.02( c) ( West 2024)) requires an agenda to\n\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nOMA does not define the term \" general subject matter.\" However,\n\nthe Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective January 1,\n2013, added section 2.02( c) of OMA, indicates that the General Assembly intended this\n\nprovision to ensure that agendas provide sufficiently descriptive advance notice of the matters\nupon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific they\n\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you're going to have and take final action, as\nto generally what' s going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\n\nDebate on House Bill No. 4687, at 47.\nRequest for Review alleged that the Board's August 20, 2025, and\nSeptember 17, 2025, meeting agendas failed to properly identify final action the Board took with\n\nrespect to \"Resignation(s)\" and \" Employment\" following closed session discussion. Specifically,\nstated that the single- word action items failed to notify the public of either the\n\ngeneral category of employee at issue or the type of personnel action under consideration. In its\nresponse to this office, the Board asserted that it believed in good faith that its references to\n\nResignations\" and \" Employment\" complied with section 2.02(c) of OMA. However, the Board\nalso stated that, going forward, it would include the general category of employee and the\n\ngeneral type of personnel transaction being considered.\nThe Public Access Bureau has previously determined that overly-generic agenda\nitems pertaining to personnel do not meet the requirements of section 2.02( c) of OMA. See, e.g.,\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 42948, 42969, issued May 25, 2017, at 4-5 (agenda item\nEmployment of Personnel\" did not provide general subject matter of vote to approve\n\nadministrators' salaries). Further, this office has explained:\n\n\fThe Honorable Heather Maschhoff\nDecember 15, 2025\nPage 3\nto comply with section 2.02(c), an agenda item for personnel\nactions must at least reference the category or categories of\n\nemployees at issue, such as teachers, bus drivers, social workers,\netc. Absent such general information concerning the positions\n\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\n\nacting upon. Ill. Att'y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\nAlthough the Board provided sufficient notice that it might take final action\n\nfollowing closed session, the agenda items in question did not sufficiently set forth the general\nsubject matter of the potential actions. Although \" Resignation( s)\" inarguably demonstrated that\n\nthe Board may entertain resignations of certain District staff, it failed to identify the category or\ncategories of individuals who had ostensibly submitted their resignations prior to the respective\n\nmeeting. Additionally, \"Employment\" could encompass virtually any matter relating to the\nemployment of District personnel and similarly fails to identify general information concerning\n\nthe positions subject to Board actions. Although section 2.02(c) does not require that meeting\nagendas identify the subject of possible final action by name or the specific action being\n\ncontemplated, the Board's agenda items were simply too vague and imprecise to provide any\nmeaningful notice to the public of the type of action the Board planned to take with respect to\n\nResignation(s)\" or \"Employment[.]\" See Ill. Att'y Gen. PAC Req. Rev. Ltr. 13540, issued June\n22, 2011, at 4 (agenda item for \" personnel matters\" did not provide sufficient advance notice of\n\npublic body's vote to approve an employment contract). Accordingly, this office concludes that\nthe Board violated section 2.02( c) of OMA with respect to those agenda items. Because the\n\nBoard has indicated that it will include greater detail in future meeting agendas, no further\nremedial action is necessary at this time.\nThis file is closed. If you have any questions, please contact me at the Springfield\n\naddress listed on the bottom of the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\n\nDeputy Public Access Counselor\nPublic Access Bureau\n89570 o 202c improper sd\n\n\fThe Honorable Heather Maschhoff\nDecember 15, 2025\nPage 4\ncc:\n\nVia electronic mail\nMr. J. Christian Miller\n\nMiller, Tracy, Braun, Funk & Miller, Ltd.\nOBO Nashville Community High School District No. 99\n\n316 South Charter Street/P.O. Box 80\nMonticello, Illinois 61856\n\ncmiller@millertracy.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agenda descriptions for personnel action items","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-89570/","full_text":"December 15, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Heather Maschhoff\n\nPresident, Board of Education\nNashville Community High School District No. 99\n\n1300 South Mills Street\nNashville, Illinois 62263\n\nhmaschho@nashville-k12.org\nRE: OMA Request for Review – 2025 PAC 89570\nDear\n\nand President Maschhoff:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n\nOMA) (5 ILCS 120/ 3.5(e) (West 2024)). For the reasons discussed below, the Public Access\n\nBureau concludes that the Nashville Community High School District No. 99 (District) Board of\nEducation (Board) violated OMA in connection with its August 20, 2025, and September 17,\n\n2025, meetings.\nOn September 28, 2025,\n\nsubmitted this Request for Review\n\nalleging that the Board improperly took final action on items during its above- referenced regular\n\nmeetings without having provided the general subject matter of two action items on each of the\nrespective meeting agendas. On October 14, 2025, this office forwarded a copy of the Request\n\nfor Review to the Board and asked it to provide a written response to the allegations, together\nwith copies of the notice, agenda, and minutes for the meetings in question. On October 20,\n\n2025, the Board's legal counsel provided a written response and the supporting materials on\n\nDETERMINATION\nThe Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\n\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (5th Dist. 1989).\nSection 2.02(c) of OMA (5 ILCS 120/ 2.02(c) (West 2024)) requires an agenda to\n\nset forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\"\n\nOMA does not define the term \" general subject matter.\" However,\n\nthe Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective January 1,\n2013, added section 2.02(c) of OMA, indicates that the General Assembly intended this\n\nprovision to ensure that agendas provide sufficiently descriptive advance notice of the matters\nupon which a public body anticipates taking final action:\nT]here was just no real requirement as to how specific they\n\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n\ngeneral notice if you're going to have and take final action, as\nto generally what's going to be discussed so that – that people who\n\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\n\nDebate on House Bill No. 4687, at 47.\nRequest for Review alleged that the Board's August 20, 2025, and\nSeptember 17, 2025, meeting agendas failed to properly identify final action the Board took with\n\nrespect to \"Resignation(s)\" and \" Employment\" following closed session discussion. Specifically,\nstated that the single- word action items failed to notify the public of either the\n\ngeneral category of employee at issue or the type of personnel action under consideration. In its\nresponse to this office, the Board asserted that it believed in good faith that its references to\n\nResignations\" and \" Employment\" complied with section 2.02(c) of OMA. However, the Board\nalso stated that, going forward, it would include the general category of employee and the\n\ngeneral type of personnel transaction being considered.\nThe Public Access Bureau has previously determined that overly-generic agenda\nitems pertaining to personnel do not meet the requirements of section 2.02(c) of OMA. See, e.g.,\n\nto comply with section 2.02(c), an agenda item for personnel\nactions must at least reference the category or categories of\n\nemployees at issue, such as teachers, bus drivers, social workers,\netc. Absent such general information concerning the positions\n\nsubject to Board actions, members of the public who follow the\nactivities of the Board will have little knowledge of what it will be\n\nacting upon. Ill. Att'y Gen. PAC Req. Rev. Ltr. 53265, issued\nAugust 28, 2018, at 5.\nAlthough the Board provided sufficient notice that it might take final action\n\nfollowing closed session, the agenda items in question did not sufficiently set forth the general\nsubject matter of the potential actions. Although \" Resignation(s)\" inarguably demonstrated that\n\nthe Board may entertain resignations of certain District staff, it failed to identify the category or\ncategories of individuals who had ostensibly submitted their resignations prior to the respective\n\nmeeting. Additionally, \"Employment\" could encompass virtually any matter relating to the\nemployment of District personnel and similarly fails to identify general information concerning\n\nthe positions subject to Board actions. Although section 2.02(c) does not require that meeting\nagendas identify the subject of possible final action by name or the specific action being\n\ncontemplated, the Board's agenda items were simply too vague and imprecise to provide any\nmeaningful notice to the public of the type of action the Board planned to take with respect to\n\nResignation(s)\" or \"Employment[.]\" See Ill. Att'y Gen. PAC Req. Rev. Ltr. 13540, issued June\n22, 2011, at 4 (agenda item for \" personnel matters\" did not provide sufficient advance notice of\n\npublic body's vote to approve an employment contract). Accordingly, this office concludes that\nthe Board violated section 2.02(c) of OMA with respect to those agenda items. Because the\n\nBoard has indicated that it will include greater detail in future meeting agendas, no further\nremedial action is necessary at this time.\nThis file is closed. If you have any questions, please contact me at the Springfield\n\naddress listed on the bottom of the first page of this letter.\n\ncc:\n\nVia electronic mail\nMr. J. Christian Miller\n\nMiller, Tracy, Braun, Funk & Miller, Ltd.\nOBO Nashville Community High School District No. 99\n\n316 South Charter Street/P.O. Box 80\nMonticello, Illinois 61856\n\ncmiller@millertracy.com"}
{"id":1481,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-12-30","case_number":null,"request_numbers":["90893"],"title":"Thornton Township Board not required to intervene in post-meeting public confrontation","filename":"90893, issued December 30, 2025.pdf","rel_path":null,"word_count":1515,"summary":"A requester alleged that the Thornton Township Board of Trustees violated the Open Meetings Act by failing to maintain order and address hostile behavior from an attendee following a public meeting. The PAC determined that no further action was warranted as the alleged conduct did not constitute a violation of the Act's requirements for meeting procedures.","plain_summary":"A citizen complained to the Attorney General that the Thornton Township Board failed to stop a hostile confrontation that occurred after a public meeting, arguing it discouraged public participation. The PAC reviewed the complaint and concluded that no violation of the Open Meetings Act occurred, though they suggested the Board consider additional security measures if tensions continue. The file is now closed.","holding":"The PAC determined that no further action is warranted regarding the alleged failure to maintain order at a public meeting.","legal_question":"Whether a public body violates the Open Meetings Act by failing to intervene in a confrontation between members of the public that occurs after a meeting has concluded.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 120/2.01","5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Thornton Township Board of Trustees","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"meeting conduct","subject_description":"The requester alleged that the Board failed to maintain order and address hostile behavior by an attendee following a special meeting.","ocr_status":"ok","ocr_quality":97.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/90893, issued December 30, 2025.pdf","sha256":"07d88ada5f96651481c52602e89d955154b371686599dd9f438f47418fb41803","needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public meeting","meeting conduct","public participation","Township Board"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nDecember 30, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable\n\nNapoleon\n\nB. Harris\n\nIII\n\nSupervisor, Thornton Township\n333 East 162nd Street\n\nSouth Holland, Illinois 60473\nc/ o cnesbit@thorntontwp.\n\nRE:\n\ncom\n\nOMA Request for Review — 2025 PAC 90893\n\nDear\n\nand Mr. Harris:\n\nThis determination is issued pursuant to section 3. 5 (b) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( b) ( West 2024)).\n\nFor the reasons set forth below, the Public Access\n\nBureau has determined that no further action is warranted\n\nin this matter.\n\nOn November 28, 2025,\n\nsubmitted this Request for Review\n\nalleging that the Board of Trustees ( Board) for Thornton Township ( Township) violated sections\n2. 01 and 2. 06( g) of OMA1 in connection\n\nwith its November 25, 2025, special meeting.\n\nclaimed that the Board failed to maintain order after this meeting concluded when an\nindividual confronted him in the presence of the Board\n\naggressive\n\nalleged\n\nthat\n\nconfront,\n\nBoard failed\n\nintimidate,\n\nor\n\nto address\n\nfollow\n\nthis\n\nattendees\n\nbehavior and\ncreates\n\na\n\nthat \"[\n\nchilling\n\nmembers.\n\na] llowing hostile individuals to\n\neffect\n\non\n\npublic\n\nparticipation [.]\"\n\n15 ILCS 120/ 2. 01 ( West 2024); see also 5 ILCS 120/ 2. 06( g) (West 2024).\n2E- mail from\n\nto Public Access Counselor ( November 28, 2025).\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: ( 217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: ( 618) 529- 6416\n\ncan reach us by using the 7- 1- 1 relay service.\n\nIllinoisAttorneyGeneral.\n\ngov\n\nDrive, Suite C\n\nIllinois 62903\n\n2\n\n\fThe Honorable\n\nNapoleon\n\nB. Harris\n\nIII\n\nDecember 30, 2025\nPage 2\n\nAdditionally,\n\nalleged the following:\n\nDuring the public comment portion of the meeting, a\nspeaker, Nina Graham ( President of School Board District 205,\n\nboard member of Democrats of Thornton Township, and advisor to\nThornton Township Supervisor Napoleon Harris), directly targeted\nme, pointed at me, and said:\nWhen we step outside this door I got a question to ask\nyou.\n\nTold me to \" be quiet.\"\nMade false accusations against me.\nThis was not simply commentary — it was targeted\n\npersonal intimidation directed at a member of the public who\n\nwas lawfully present. l31 ( Emphasis in original).\nSection 3. 5( a) of OMA4 provides:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * *\nrequest for review * * *\n\nsupporting the\n\nThe\n\nmust include a summary of the facts\n\nallegation. (\n\nEmphasis added.)\n\nAccess to Meetings\n\nUnder OMA, it is \" the public policy of this State that its citizens shall be given\n\nadvance notice of and the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\" 5 OMA provides that \"[ a] ll meetings required by this Act to\nbe public shall be held at specified times and places which are convenient and open to the\npublic.\"\n\n6\n\n3E- mail from\n\nto Public Access Counselor ( November 28, 2025).\n\n45 ILCS 120/ 3. 5( a) ( West 2024).\n5See 5 ILCS 120/ 1 ( West 2024).\n65 ILCS 120/ 2. 01 ( West 2024).\n\nOffice of the Illinois Attorney\n\nGeneral\n\n\fThe Honorable\n\nNapoleon\n\nB. Harris\n\nIII\n\nDecember 30, 2025\nPage 3\nalleged that the Board' s failure to address acts of aggression\nintimidation deters those who wish to attend Board\n\nand\n\nThe recording that\n\nmeetings.\n\nprovided shows that after the November 25, 2025, meeting had concluded, a man addressed him\nin the meeting room and made comments that\ncharacterized as harassing, and that\nthe man walked away as\nobjected to being harassed and a security guard\napproached. The recording also shows that a woman who identified herself as\n\nfriend later encouraged him to leave the parking lot to avoid a potential conflict with others, and\na security guard appeared to agree. These encounters are not attributable to the Board and do not\nindicate that the Board promoted or tolerated threats or intimidation that prevented or dissuaded\nmembers of the public from attending the meeting. As noted above, a Request for Review of an\n\nalleged OMA violation must set forth facts that indicate that the public body potentially violated\nOMA. Because\ndid not provide facts to indicate that any member of the public\nwas prevented or dissuaded from attending the November 25, 2025, meeting because of the\nBoard' s actions or inaction, this office has no basis to conclude that the Board violated OMA' s\n\nrequirement that meetings be open to the public.\nPublic Comment\nSection 2. 06( g) of OMA provides\n\nthat \"[ a] ny person\n\nbodies under the rules established\n\nby the public body. A public body violates\n\nshall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The intention of section 2. 06( g) is to guarantee members of the public the right to\naddress\n\npublic\n\n2. 06( g) of OMA when it: ( 1)\n\nprohibits a member of the public from addressing its\nmembers in a manner inconsistent with its established and recorded rules, or (2) prohibits a\nmember of the public from providing public comment pursuant to its established and recorded\nrules, but those rules unreasonably restrict that person's right to address public officials. I11. Att'y\nsection\n\nGen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\n\nThe Public Access Bureau\n\nhas previously determined that to warrant further action by this office, a Request for Review\nconcerning public comment must set forth facts indicating that a member of the public attempted\nto address public officials during an open meeting but was improperly restricted by the public\nbody from doing so. See, for example, I11. Att'y Gen. PAC Req. Rev. Ltr. 42017, issued June 1,\n2016, at 1- 2 ( determining that a Request for Review alleging that a board' s public comment rules\nviolated section 2. 06( g) of OMA did not warrant further inquiry because the Request for Review\ndid not allege that anyone who attempted to address the board during an open meeting was\nimproperly denied an opportunity to speak).\nalleged that during the meeting's public comment period, an\nindividual, Ms. Graham, told him to be quiet and made false\n\naccusations\n\nagainst him.\n\nHowever,\n\nhas not alleged that he was improperly prevented from addressing the Board\nduring the November 25, 2025, meeting. According to his submitted materials,\nprovided public comment about nine minutes into the meeting, just before Ms. Graham spoke.\n\nThere is no indication that\n\npublic comments were improperly disrupted by any\n\nOffice of the Illinois Attorney\n\nGeneral\n\n\fThe Honorable\n\nNapoleon\n\nB. Harris\n\nIII\n\nDecember 30, 2025\nPage 4\nBoard members.\n\nThe recording\nprovided shows that Ms. Graham criticized\nduring her public comment and he interjected to disagree, which led to comments that\nhe characterized as intimidating. This conduct is not attributable to the Board, and there is no\nindication that the Board encouraged\n\nor acted in concert with the speaker to chill speech or\n\nhinder members\n\nof the public from addressing the Board. Instead, the Board advised Ms.\nGraham that her public comment time had expired. Accordingly, there is no basis for this office\n\nto conclude that the Board has violated section 2. 06( g) of OMA. Because\ndid not\nprovide facts to support the allegation that the Board violated OMA' s requirements, this office\nwill take no further action in this matter.\nIn its advisory\n\ncapacity,?\n\nthe Public Access Bureau reiterates that the General\n\nAssembly \"declares it to be the public policy of this State that its citizens shall be given advance\nnotice of and the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\" (\n\nfrom\n\nEmphasis added.)\n\n5 ILCS 120/ 1 ( West 2024).\n\nIt appears\n\nsubmission that there have been ongoing conflicts between members of the\n\npublic during and/ or after Board meetings, and that the Board already provides security at\n\nmeetings and in the parking lot. If these tensions persist or escalate, the Board may wish to\nconsider whether additional measures are necessary to ensure that members of the public are not\n\ndiscouraged from exercising their right to attend Board meetings.\nThis letter serves to close this file. If you have questions, please contact me at the\nChicago address listed on the first page of this letter.\nVery truly yours,\n\nCHRISTINA LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n90893 ono fi war twp\n\n715 ILCS 205/ 7( a), ( c) ( West 2024) ( authorizing the Public Access Counselor to\nprovide advice and education to public officials and members of the public).\n\nOffice of the Illinois Attorney\n\nGeneral\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's handling of post-meeting attendee behavior","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-90893/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nDecember 30, 2025\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable\n\nNapoleon\n\nB. Harris\n\nIII\n\nSupervisor, Thornton Township\n333 East 162nd Street\n\nSouth Holland, Illinois 60473\nc/ o cnesbit@thorntontwp.\n\nRE:\n\ncom\n\nOMA Request for Review — 2025 PAC 90893\n\nDear\n\nand Mr. Harris:\n\nThis determination is issued pursuant to section 3. 5 (b) of the Open Meetings Act\nOMA) (5 ILCS 120/ 3. 5(b) (West 2024)).\n\nFor the reasons set forth below, the Public Access\n\nBureau has determined that no further action is warranted\n\nin this matter.\n\nOn November 28, 2025,\n\nsubmitted this Request for Review\n\nalleging that the Board of Trustees (Board) for Thornton Township (Township) violated sections\n2. 01 and 2. 06(g) of OMA1 in connection\n\nwith its November 25, 2025, special meeting.\n\nclaimed that the Board failed to maintain order after this meeting concluded when an\nindividual confronted him in the presence of the Board\n\naggressive\n\nalleged\n\nthat\n\nconfront,\n\nBoard failed\n\nintimidate,\n\nor\n\nto address\n\nfollow\n\nthis\n\nattendees\n\nbehavior and\ncreates\n\na\n\nthat \"[\n\nchilling\n\nmembers.\n\na] llowing hostile individuals to\n\neffect\n\non\n\npublic\n\nparticipation [.]\"\n\n15 ILCS 120/ 2. 01 (West 2024); see also 5 ILCS 120/ 2. 06(g) (West 2024).\n2E- mail from\n\nto Public Access Counselor (November 28, 2025).\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: (217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: (312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: (618) 529- 6416\n\ncan reach us by using the 7- 1- 1 relay service.\n\nIllinoisAttorneyGeneral.\n\ngov\n\nDrive, Suite C\n\nAdditionally,\n\nalleged the following:\n\nDuring the public comment portion of the meeting, a\nspeaker, Nina Graham (President of School Board District 205,\n\nboard member of Democrats of Thornton Township, and advisor to\nThornton Township Supervisor Napoleon Harris), directly targeted\nme, pointed at me, and said:\nWhen we step outside this door I got a question to ask\nyou.\n\nTold me to \" be quiet.\"\nMade false accusations against me.\nThis was not simply commentary — it was targeted\n\npersonal intimidation directed at a member of the public who\n\nwas lawfully present. l31 (Emphasis in original).\nSection 3. 5(a) of OMA4 provides:\n\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. * * *\nrequest for review * * *\n\nsupporting the\n\nThe\n\nmust include a summary of the facts\n\nallegation. (Emphasis added.)\n\nAccess to Meetings\n\nUnder OMA, it is \" the public policy of this State that its citizens shall be given\n\nadvance notice of and the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\" 5 OMA provides that \"[ a] ll meetings required by this Act to\nbe public shall be held at specified times and places which are convenient and open to the\npublic.\"\n\n6\n\n3E- mail from\n\nto Public Access Counselor (November 28, 2025).\n\n45 ILCS 120/ 3. 5(a) (West 2024).\n5 See 5 ILCS 120/ 1 (West 2024).\n65 ILCS 120/ 2. 01 (West 2024).\n\nalleged that the Board's failure to address acts of aggression\nintimidation deters those who wish to attend Board\n\nand\n\nThe recording that\n\nmeetings.\n\nprovided shows that after the November 25, 2025, meeting had concluded, a man addressed him\nin the meeting room and made comments that\ncharacterized as harassing, and that\nthe man walked away as\nobjected to being harassed and a security guard\napproached. The recording also shows that a woman who identified herself as\n\nfriend later encouraged him to leave the parking lot to avoid a potential conflict with others, and\na security guard appeared to agree. These encounters are not attributable to the Board and do not\nindicate that the Board promoted or tolerated threats or intimidation that prevented or dissuaded\nmembers of the public from attending the meeting. As noted above, a Request for Review of an\n\nalleged OMA violation must set forth facts that indicate that the public body potentially violated\nOMA. Because\ndid not provide facts to indicate that any member of the public\nwas prevented or dissuaded from attending the November 25, 2025, meeting because of the\nBoard's actions or inaction, this office has no basis to conclude that the Board violated OMA's\n\nrequirement that meetings be open to the public.\nPublic Comment\nSection 2. 06(g) of OMA provides\n\nthat \"[ a] ny person\n\nbodies under the rules established\n\nby the public body. A public body violates\n\nshall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" The intention of section 2. 06(g) is to guarantee members of the public the right to\naddress\n\npublic\n\n2. 06(g) of OMA when it: (1)\n\nprohibits a member of the public from addressing its\nmembers in a manner inconsistent with its established and recorded rules, or (2) prohibits a\nmember of the public from providing public comment pursuant to its established and recorded\nrules, but those rules unreasonably restrict that person's right to address public officials. I11. Att'y\nsection\n\nGen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\n\nThe Public Access Bureau\n\nhas previously determined that to warrant further action by this office, a Request for Review\nconcerning public comment must set forth facts indicating that a member of the public attempted\nto address public officials during an open meeting but was improperly restricted by the public\nbody from doing so. See, for example, I11. Att'y Gen. PAC Req. Rev. Ltr. 42017, issued June 1,\n2016, at 1- 2 (determining that a Request for Review alleging that a board's public comment rules\nviolated section 2. 06(g) of OMA did not warrant further inquiry because the Request for Review\ndid not allege that anyone who attempted to address the board during an open meeting was\nimproperly denied an opportunity to speak).\nalleged that during the meeting's public comment period, an\nindividual, Ms. Graham, told him to be quiet and made false\n\naccusations\n\nagainst him.\n\nHowever,\n\nhas not alleged that he was improperly prevented from addressing the Board\nduring the November 25, 2025, meeting. According to his submitted materials,\nprovided public comment about nine minutes into the meeting, just before Ms. Graham spoke.\n\nThere is no indication that\n\npublic comments were improperly disrupted by any\n\nBoard members.\n\nThe recording\nprovided shows that Ms. Graham criticized\nduring her public comment and he interjected to disagree, which led to comments that\nhe characterized as intimidating. This conduct is not attributable to the Board, and there is no\nindication that the Board encouraged\n\nor acted in concert with the speaker to chill speech or\n\nhinder members\n\nof the public from addressing the Board. Instead, the Board advised Ms.\nGraham that her public comment time had expired. Accordingly, there is no basis for this office\n\nto conclude that the Board has violated section 2. 06(g) of OMA. Because\ndid not\nprovide facts to support the allegation that the Board violated OMA's requirements, this office\nwill take no further action in this matter.\nIn its advisory\n\ncapacity,?\n\nthe Public Access Bureau reiterates that the General\n\nAssembly \"declares it to be the public policy of this State that its citizens shall be given advance\nnotice of and the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in any way.\" (from\n\nEmphasis added.)\n\n5 ILCS 120/ 1 (West 2024).\n\nIt appears\n\nsubmission that there have been ongoing conflicts between members of the\n\npublic during and/ or after Board meetings, and that the Board already provides security at\n\nmeetings and in the parking lot. If these tensions persist or escalate, the Board may wish to\nconsider whether additional measures are necessary to ensure that members of the public are not\n\ndiscouraged from exercising their right to attend Board meetings.\nThis letter serves to close this file. If you have questions, please contact me at the\nChicago address listed on the first page of this letter.\nVery truly yours,\n\nCHRISTINA LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n90893 ono fi war twp\n\n715 ILCS 205/ 7(a), (c) (West 2024) (authorizing the Public Access Counselor to\nprovide advice and education to public officials and members of the public).\n\nOffice of the Illinois Attorney\n\nGeneral"}
{"id":1482,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-06-30","case_number":"2026 PAC 93299","request_numbers":["93299"],"title":"Oak Lawn Police Department improperly withheld arrest records under FOIA","filename":"PUBLIC ACCESS OPINION 26-006 (Request for Review 2026 PAC 93299).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-006 (Request for Review 2026 PAC 93299).pdf","word_count":5343,"summary":"Jared Rutecki, an investigative reporter for Chicago Tonight, requested investigative files and related documentation from the Oak Lawn Police Department regarding a January 17, 2023 arrest. The Department withheld the records, and the PAC determined this was improper, finding a violation of FOIA.","plain_summary":"A reporter asked the Oak Lawn Police Department for records about a specific arrest. The police refused to provide them, and the Attorney General's office reviewed the case, concluding that the police violated the Freedom of Information Act by not releasing the records. This means the police must now provide the requested documents.","holding":"The Oak Lawn Police Department improperly withheld records responsive to Mr. Rutecki's FOIA request, violating FOIA.","legal_question":"Whether the Oak Lawn Police Department violated FOIA by withholding records responsive to a request for investigative files related to an arrest.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Oak Lawn Police Department","requesting_party":"Jared Rutecki","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Investigative files and related documentation concerning an arrest made on January 17, 2023.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-006.pdf","sha256":"c25eb0542c44cc2b54932d5154dc948719e42f6f46fbb57c0686e0c3d2a5d3c1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 0 time(s), clean","faq_tags":["police records","FOIA request","arrest records","investigative files"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police investigative files from a January arrest","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-93299/","full_text":"OFFICE OF THE ATTORNEY GENERAL\r\nSTATE OF ILLINOIS\r\n\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\n\r\nJune 30, 2026\r\n\r\nPUBLIC ACCESS OPINION 26-006\r\n(Request for Review 2026 PAC 93299)\r\nFREEDOM OF INFORMATION ACT:\r\nBasis for Withholding Police Records\r\nDocumenting Arrest\r\nMr. Jared Rutecki\r\nInvestigative Reporter\r\nChicago Tonight\r\nWTTW-TV-PBS-Ch. 11\r\n5400 North Saint Louis Avenue\r\nChicago, Illinois 60625\r\nMs. Sandy Cruz\r\nRecords Clerk\r\nOak Lawn Police Department\r\n9446 South Raymond Avenue\r\nOak Lawn, Illinois 60453\r\nDear Mr. Rutecki and Ms. Cruz:\r\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\r\nof the Freedom oflnformation Act (FOIA). 1 For the reasons discussed below, this office\r\nconcludes that the Oak Lawn Police Department (Department) improperly withheld records\r\nresponsive to Mr. Jared Rutecki's March 25 , 2026, FOIA request.\r\nOn that date, Mr. Rutecki, on behalf of Chicago Tonight, submitted a FOIA\r\nrequest to the Department seeking \"[i]nvestigative files, supplementary files, tickets and any\r\nother documentation related to the investigation\" of a named individual who was arrested on\r\n\r\n1\r\n\r\n5 ILCS 140/9.S(t) (West 2024), as amended by Public Act 104-438, effective January I, 2026.\r\n\r\n500 South 2nd Street\r\nSpringfield, Illinoi s 6270 I\r\n(217) 782 -1090 • Fax: (217) 782-7046\r\n\r\nI\r\n\r\n11 5 South LaSalle Street\r\nChicago, Illinois 60603\r\n(3 12) 8 14-3000 • Fax: (3 12) 8 14-3806\r\n\r\nI\r\n\r\n1745 Innovation Drive, Suite C\r\nCarbondale, lllinois 62903\r\n(618) 529-6400 • Fax: (6 18) 529-64 16\r\n\r\nIndividuals with hearing or speech disab iliti es can reach us by using the 7-1-1 relay service.\r\nwww. 1IIinoisA ttomeyGeneral .gov\r\n\r\n... ,.. . .\r\n\r\n• rt..!•,:~·,t· ' .005\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 2\r\nJanuary 17, 2023. 2 On that same date, the Department denied the request in its entirety pursuant\r\nto section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2024), as amended by Public Acts 104438, effective January 1, 2026; 104-443, effective January 1, 2026).3 On March 27, 2026, Mr.\r\nRutecki submitted the above-referenced Request for Review contesting the Department's\r\nresponse. 4\r\nOn April 14, 2026, the Public Access Bureau sent a copy of the Request for\r\nReview to the Department. 5 The Public Access Bureau also sent the Department a letter\r\nrequesting an unredacted copy of any withheld records for this office's confidential review and a\r\ndetailed written explanation of the legal and factual bases for the applicability of the asserted\r\nexemption. 6 On April 17, 2026, the Department e-mailed this office 7 a four-page\r\nIncident/Investigation Report and its written response. 8 On that same date, this office forwarded\r\na copy of the Department's written response to Mr. Rutecki and notified him of his opportunity to\r\nreply. 9 He replied on April 21, 2026. 10\r\nOn May 12, 2026, a Supervising Attorney in the Public Access Bureau asked the\r\nDepartment's Records Clerk to clarify if the Department maintained any other records\r\nconcerning the incident, the arrestee's release or transfer, or the charges. 11 On May 13, 2026, the\r\n2\r\n\r\nFO1A portal message from Village of Oak Lawn to Jared Rutecki (March 25, 2026) (confirming\r\nreceipt of FOIA request).\r\n3\r\n\r\nLetter from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Jared Rutecki (March\r\n\r\n25, 2026).\r\n4\r\n\r\nE-mail from Jared Rutecki, Investigative Reporter, Chicago Tonight, WTTW-TV-PBS-Ch . 11 , to\r\nPublic Access Counselor, Office of the Attorney General , Public Access Bureau (March 27, 2026).\r\n5\r\nE-mail from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois\r\nAttorney General , to [Pam] Mallo, [Administrative Assistant, Oak Lawn Police Department] (April 14, 2026).\r\n6\r\n\r\nLetter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\r\nAttorney General, to Pam Mallo, Administrative Assistant, Oak Lawn Police Department (April 14, 2026).\r\n7\r\nE-mail from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to [Benjamin] Silver,\r\n[Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 17, 2026).\r\n\r\n8\r\n\r\nLetter from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Benjmain J. Silver,\r\nSupervising Attorney, Office of the Illinois Attorney General (April 17, 2026).\r\n9\r\n\r\nLetter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\r\nAttorney General , to Jared Rutecki , Investigative Reporter, Chicago Tonight (April 17, 2026).\r\n10\r\n\r\nE-mail from Jared Rutecki , Investigative Reporter, Chicago Tonight, to [Benjamin] Silver,\r\n[Supervising Attorney, Public Access Bureau, Office of the Tllinois Attorney General] (April 24, 2026).\r\n11\r\n\r\nE-mail from Benjamin Silver, Supervising Attorney , Public Access Bureau, Office of the Illinois\r\nAttorney General , to Sandra Cruz, [Records Clerk, Oak Lawn Police Department] (May 12, 2026).\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 3\r\nRecords Clerk provided this office with an arrest card, a Case Supplemental Report, and records\r\nconcerning the processing and detention of the arrestee at the jail. The Records Clerk indicated\r\nthat \"Mr. Rutecki would not be entitled to these documents.\" 12\r\nOn May 21 , 2026, this office extended the time in which to issue a binding\r\nopinion by 30 business days, to July 8, 2026, pursuant to section 9.5(f) of FOIA. 13\r\nOn June 4, 2026, the Supervising Attorney asked the Records Clerk to provide an\r\nadditional response addressing whether it was the Department's position that that the Case\r\nSupplemental Report and arrest card were not responsive to the request, and further asked for a\r\ndetailed explanation of the factual bases for the applicability of section 7(1)(c) if the Department\r\nwished to assert that exemption for those records. 14 This office also requested copies of\r\nphotographs referenced in the Case Supplemental Report. 15 On June 5, 2026, the Records Clerk\r\nresponded that the photographs had been destroyed and stated: \"As [Mr. Rutecki's] request was\r\ndenied in its entirety, my assumption is he would not be privy to any documents for this\r\nmatter.\" 16\r\nANALYSIS\r\n\r\nIt is the public policy of the State of Illinois that \"all persons are entitled to full\r\nand complete information regarding the affairs of government and the official acts and policies\r\nof those who represent them as public officials and public employees consistent with the terms\r\nof'' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession\r\nof a public body are presumed to be open to inspection or copying. Any public body that asserts\r\nthat a record is exempt from disclosure has the burden of proving by clear and convincing\r\nevidence that it is exempt. \" 5 ILCS 140/1.2 (West 2024). Section 7(1) of FOIA (5 ILCS\r\n140/7(1) (West 2024), as amended by Public Acts 104-438, effective January 1, 2026; 104-443,\r\neffective January 1, 2026) further provides:\r\n\r\n12\r\n\r\nE-mail from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Benjamin Si lver\r\n\r\n(May 13, 2026).\r\n13\r\n\r\nLetter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\r\nAttorney General , to Jared Rutecki, Investigative Reporter, Chicago Tonight, and Sandy Cruz, Records Clerk, Oak\r\nLawn Police Department (May 2 l, 2026).\r\n14\r\n\r\nE-mail from Ben Silver, Supervising Attorney, Public Access Bureau, [Office of the Attorney\r\nGeneral], to [Sandy] Cruz, [Records Clerk, Oak Lawn Police Department] (June 4, 2026).\r\n15\r\n\r\nE-mail from Ben Si lver, Supervising Attorney, Public Access Bureau, [Office of the Attorney\r\nGeneral], to [Sandy] Cruz, [Records Clerk, Oak Lawn Police Department] (June 4, 2026).\r\n16\r\nE-mail from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to [Benjamin] Silver,\r\n[Supervising Attorney, Public Access Bureau, Office of the Attorney General) (June 5, 2026).\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 4\r\nWhen a request is made to inspect or copy a public record\r\nthat contains information that is exempt from disclosure under this\r\nSection, but also contains information that is not exempt from\r\ndisclosure, the public body may elect to redact the information that\r\nis exempt. The public body shall make the remaining\r\ninformation available for inspection and copying. (Emphasis\r\nadded.)\r\nRecords Responsive to the FOIA Request\r\n\r\n\"Given the policy embodied in the [federal] FOIA 17 requiring disclosure of\r\ninformation in government documents unless it falls within the reach of one of the specified\r\nexemptions, the agency should err on the side of liberally construing what material falls within\r\nthe scope of the request.\" Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D. Cal. 1981); see\r\nalso Leopold v. Department of Justice, 130 F. Supp. 3d 32, 43 (D.D.C. 2015) (provided that a\r\nrequester reasonably describes records, \"agencies must liberally construe FOIA requests, even\r\nwhere a request is poorly defined[.]\"). Subject to appropriate redactions, a public body must\r\ndisclose information that \"relates to the subject of the request or which in any sense sheds light\r\non, amplifies, or enlarges upon that material which is found in the same documents.\" Dunaway,\r\n519 F. Supp. at 1083; see also Judicial Watch, Inc. v. US Department of Energy, 310 F. Supp.\r\n2d 271, 306 (D.D.C. 2004), affd in part, rev'd in part on other grounds, 412 F.3d 125 (D.C. Cir.\r\n2005) (holding an agency search to be unreasonable because it did not \"encompass the full scope\r\nor precise language of the\" plaintiffs request).\r\nMr. Rutecki's FOIA request sought \"[i]nvestigative files, supplementary files,\r\ntickets and any other documentation related to the investigation.\" 18 With its April 17, 2026,\r\nanswer to this office, the Department provided as the only responsive record a copy of a fourpage Incident/Investigation Report for the specified arrest. 19 On May 13, 2026, the Department\r\nfurnished this office a Case Supplemental Report, arrest card, and documents concerning the\r\nprocessing and detention of the arrestee at the jail and inventorying of the arrestee's property.\r\nAlthough Mr. Rutecki did not identify those records by name in his request, the arrest card\r\nreflects the outcome of the investigation and the Case Supplemental Report describes the\r\ninspection and inventory of evidence gathered in connection with the investigation. Those\r\n17\r\n\r\nIllinois courts have recognized that because Illinois' FOIA statute is based on the Federal FOIA\r\nstatute (5 U.S.C. § 552 et seq. (2018)), decisions con struing the latter, while not controlling, may provide helpful\r\nand relevant precedents in construing the state Act. Margolis v. Director of the Department of Revenue, 180 Ill.\r\nApp . 3d I 084, I 087 ( 1989).\r\n18\r\nFOIA portal message from Village of Oak Lawn to Jared Rutecki (March 25 , 2026) (confirming\r\nreceipt of FOIA request).\r\n19\r\n\r\nlncident/Investigation Report, Oak Lawn Police Department, Officer B.P. Flisk, Oak Lawn,\r\nIllinois, Case No. 23-00299, January 17, 2023 , 8:43 p.m.\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 5\r\nrecords are responsive to Mr. Rutecki's request for \"other documentation related to the\r\ninvestigation[.] 1120 In contrast, the records concerning the processing and detention of the\r\narrestee at the jail after the arrest do not relate to the investigation and are not responsive.\r\nAccordingly, this binding opinion will address the Department's assertion of section 7(1 )(c) of\r\nFOIA to withhold the four-page Incident/Investigation Report, the Case Supplemental Report,\r\nand the arrest card.\r\n\r\nSection 7(l)(c) of FOIA\r\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\r\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\r\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\r\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\"\r\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\r\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\r\nthe information.\"\r\nThe Department's response to this office stated that the records at issue concern\r\n\"[a] family's private domestic incident\" 21 in which children were present and asserted that \"the\r\nprotection of the victims and witnesses outweighs the public's interest in such matters. Further,\r\nrelease of the report, even with redactions is an unwarranted invasion of their personal\r\nprivacy.\" 22\r\nThe resolution of a personal privacy exemption claim requires weighing four\r\nfactors: \"(1) the [requester's] interest in disclosure, (2) the public interest in disclosure, (3) the\r\ndegree of invasion of personal privacy, and (4) the availability of alternative means of obtaining\r\nthe requested information.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police\r\nDepartment, 399 Ill. App. 3d 1, 13 (2010). The General Assembly's use of the language \"clearly\r\nunwarranted invasion of personal privacy[]\" evinces a \"stricter standard to claim exemption\"\r\nwhich the government agency possessing the records bears the burden of sustaining. (Emphasis\r\nin original.) Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202 (1994).\r\nUnder the first and second factors, Mr. Rutecki's interest in disclosure of the\r\nrecords is connected to his employment as a reporter with Chicago Tonight and therefore is\r\n2\r\n\r\n°FOIA portal message from Village of Oak Lawn to Jared Rutecki (March 25 , 2026) (confirming\r\nreceipt of FOIA request).\r\n21\r\n\r\nLetter from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Benjmain J. Silver,\r\nSupervising Attorney, Office of the Illinois Attorney General (April 17, 2026), at [2].\r\n22\r\nLetter from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Benjmain J. Silver,\r\nSupervising Attorney, Office of the Illinois Attorney General (April 17, 2026), at [I].\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 6\r\naligned with the public interest in disclosure of information concerning arrests. Mr. Rutecki\r\nnoted in his FOIA request that \"Chicago Tonight is a nonprofit, journalism program based in\r\nChicago. This is for a possible news story.\" 23 In his Request for Review, Mr. Rutecki asserted\r\nthat disclosure of the records is a matter of high public interest because the arrestee now serves\r\nas a police officer with the Chicago Police Department. 24\r\nThere is a high level of public interest in arrests and the circumstances\r\nsurrounding arrests. Section 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2024)) generally\r\nrequires the release of certain information within arrest records, including:\r\n(i) information that identifies the individual, including the\r\nname, age, address, and photograph, when and if available; (ii)\r\ninformation detailing any charges relating to the arrest; (iii) the\r\ntime and location of the arrest; (iv) the name of the investigating or\r\narresting law enforcement agency;* * * and (vi) if the individual is\r\nincarcerated, the time and date that the individual was received\r\ninto, discharged from, or transferred from the arresting agency's\r\ncustody. [251\r\nThese statutory disclosure requirements \"demonstrate that the General Assembly has recognized\r\na strong public interest in the disclosure of information concerning arrests that outweighs an\r\narrestee's right to privacy.\" Ill. Att'y Gen. Pub. Acc. Op. No. 12-006, issued March 16, 2012, at\r\n6.\r\nFurthermore, arrestees are considered \"essentially public personages[]\" with a\r\n\"limited and qualified\" right to privacy, \"and the basic facts which identify them and describe\r\ngenerally the investigations and their arrests become matters of legitimate public interest.\"\r\nTennessean Newspaper, Inc. v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975). There also is\r\na strong public interest in information that sheds light on the manner in which law enforcement\r\nofficials perform their public duties. See Lissner v. United States Customs Service, 241 F.3d\r\n1220, 1223 (9th Cir. 2001) (information that \"sheds light on the propriety\" ofa federal law\r\n23\r\n\r\nFOIA portal message from Village of Oak Lawn to Jared Rutecki (March 25, 2026) (confirming\r\n\r\nreceipt of request) .\r\n24\r\nE-mail from Jared Rutecki, lnvestigative Reporter, Chicago Tonight, WTTW-TV-PBS-Ch . 11,\r\nto Public Access Counselor, Office of the Attorney General , Public Access Bureau (March 27, 2026).\r\n\r\n25\r\n\r\nA public body may withhold the information referenced in subsections (iii) through (vi) of\r\nsection 2. IS(a), but only if its \"disclosure would: (i) interfere with pending or actually and reasonably contemplated\r\nlaw enforcement proceedings conducted by any law enforcement agency ; (ii) endanger the life or physical safety of\r\nlaw enforcement or correctional personnel or any other person ; or (iii) compromise the security of any correctional\r\nfacility.\" 5 ILCS 140/2. IS(c) (West 2024).\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 7\r\nenforcement agency's handling of an incident in which two police officers were arrested and\r\nfined \"raises a cognizable public interest under the federal FOIA\").\r\nIn this instance, the public interest is heightened by the fact that the incident\r\nreport indicates that the arrestee was employed by the Cook County Sheriffs Office at the time\r\nof the incident, 26 and Mr. Rutecki indicates that the individual was later hired by the Chicago\r\nPolice Department. See Lissner, 241 F.3d at 1223 (stating that law enforcement officers have\r\ndiminished privacy rights compared to \"ordinary citizens[.]\").\r\nAs to the third factor- the degree of invasion of personal privacy- the\r\nDepartment asserted in its written response that it withheld the contested records in order to\r\nprotect the privacy of victims and witnesses of the incident, including children. 27 The\r\nDepartment did not provide a specific explanation as to how information describing the\r\ncircumstances of the arrest would constitute a \"clearly unwarranted invasion of personal privacy\"\r\nfor victims, witnesses, or family members of the arrestee. In his reply, Mr. Rutecki\r\nacknowledged that the Department could permissibly redact information identifying victims or\r\nwitnesses under section 7(l)(c), but argued that the Department should have made the remaining\r\nportions of the records available in response to his request. 28\r\nCourts have concluded that the disclosure of the names of witnesses and other\r\nthird parties in police reports would typically constitute an unwarranted invasion of personal\r\nprivacy. See, e.g., Mays v. Drug Enforcement Administration, 234 F.3d 1324, 1327 (D.C. Cir.\r\n2000) (\"Absent exceptional circumstances, the balance [between the public interest in disclosure\r\nand the right to privacy] categorically favors withholding the names and addresses of third\r\nparties as\" such information does not provide insight into the conduct or performance of a\r\ngovernment agency); see also Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022,\r\nat 11 (names and other identifying information of third parties in complaint documents are\r\nexempt from disclosure). Additionally, highly personal details of certain crimes may constitute\r\nan unwarranted invasion of a victim's right to privacy. See, e.g., McGee v. Kelley, 2017 IL App\r\n(3d) 160324, 1 18 (\"The public has an interest in monitoring law enforcement to ensure it is\r\nacting in the public's interest. However, it is doubtful that the public has any interest in the actual\r\ndetails of the victim's sexual assault and battery.\"); State Journal-Register v. University of\r\nIllinois Springfield, 2013 IL App (4th) 120881, 156 (\"details of*** sexual misconduct are\r\nhighly personal, which weighs heavily in favor of exemption.\").\r\n26\r\nIncident/lnvestigation Report, Oak Lawn Police Department, Officer B.P. Flisk, Oak Lawn,\r\n]llinois, Case No. 23-00299, January 17, 2023, 8:43 p.m. , at 4.\r\n27\r\n\r\nLetter from Sandy Cruz, Records Clerk, Oak Lawn Police Department, to Benjamin J. Silver,\r\nSupervising Attorney, Office of the Illinois Attorney General] (April 17, 2026), at [I].\r\n28\r\n\r\nE-mail from Jared Rutecki, Investigative Reporter, Chicago Tonight, to [Benjamin] Silver,\r\n[Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General] (April 24, 2026).\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 8\r\nThis office's confidential review of the contested records found that they do not\r\ncontain the type of graphic details that the courts in McGee or State Journal-Register determined\r\nwould constitute a clearly unwarranted invasion of personal privacy if disclosed. Although the\r\nrecords concern a domestic incident, they do not document graphic violence or highly personal\r\ndetails about the involved parties, except for a brief reference to nature of the underlying dispute\r\nthat led to the incident and an opinion about alleged prior conduct the week before the incident,\r\nboth of which are exempt from disclosure as explained below.\r\nLastly, there is no indication that Mr. Rutecki has alternative means of obtaining\r\nthe contested records.\r\nTaking all the factors into account, this office concludes that the public interest in\r\ndisclosure of information concerning the investigation of the arrestee, who now serves as a\r\npolice officer, outweighs the invasion of personal privacy. Contrary to the Department's\r\ncharacterization of the incident as \"[a] family's private domestic incident[,]\" the Department\r\narrested an individual during this incident, and basic facts concerning arrests are a matter of\r\npublic record pursuant to section 2.15 of FOIA. The specific requirements of that provision take\r\nprecedence over the general provisions of section 7(1 )( c) of FOIA. See People v. Villarreal, 152\r\nIll. 2d 368, 379 (1992) (\"It is a fundamental rule of statutory construction that where there exists\r\na general statutory provision and a specific statutory provision, either in the same or another act,\r\nwhich both relate to the same subject, the specific provision controls and should be applied.\").\r\nFurther, there is a compelling public interest in how police officers conduct investigations and\r\nmake arrests, and the degree of invasion of personal privacy is reduced because an arrestee has a\r\nlimited and qualified right of privacy with respect to information concerning their arrest.\r\nAlthough family members of an arrestee may incur some embarrassment in the release of the\r\ndetails of an arrest, any invasion of personal privacy is outweighed by the public interest in\r\ndetails regarding the circumstances of an arrest, the performance of officers' public duties in\r\nmaking an arrest, and any subsequent investigation by law enforcement.\r\nCertain portions of the record, however, may be redacted pursuant to section\r\n7(1 )( c) to protect the significant personal privacy interests of the victim, witnesses, and any third\r\nparties identified in the Incident/Investigation Report. Notably, the third sentence of the first\r\nparagraph of the reporting officer's narrative as well as the fourth paragraph contain highly\r\npersonal information that extend beyond the documented and observed facts that provided a\r\nbasis for the arrest. Disclosure of this information would create a clearly unwarranted invasion\r\nof personal privacy of the victim. Additionally, portions of the records that reference witnesses\r\nand any third parties, including their names, contact information, and personally-identifying\r\ndetails-such as the nature of their relationships to the arrestee-may be redacted to protect their\r\nidentities.\r\nBased on this office's confidential review of the records, redaction of portions of\r\nthe first and fourth paragraphs of the reporting officer's narrative and the identifying information\r\nreferenced above will be sufficient to ensure that release of the records will not constitute a\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 9\r\nclearly unwarranted invasion of personal privacy of victims, witnesses, and any third parties.\r\nThis office notes that the arrest card and the Case Supplemental Report, which the Department\r\nalso did not provide to Mr. Rutecki, contains no identifying information about the victim or any\r\nwitnesses. 29 With respect to the information concerning children in the Incident/Investigation\r\nReport, which is incidental and has no bearing on the underlying incident, the right to privacy\r\noutweighs any legitimate public interest in disclosure and is therefore exempt from disclosure\r\npursuant to section 7(1)(c). This information includes the identifiers in paragraph one, and\r\ninformation in the third paragraph of the reporting officer's narrative. 30\r\nFor these reasons, the Public Access Bureau concludes that the Department did\r\nnot sustain its burden of proving by clear and convincing evidence that the contested records are\r\nexempt from disclosure in their entireties under section 7(1)(c) of FOIA.\r\nFINDINGS AND CONCLUSIONS\r\nAfter full examination and giving due consideration to the information submitted,\r\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\r\n1) On March 25, 2026, Mr. Jared Rutecki, on behalf of Chicago Tonight,\r\nsubmitted a FOIA request to the Oak Lawn Police Department seeking \"[i]nvestigative files,\r\nsupplementary files, tickets and any other documentation related to the investigation\" of a named\r\nindividual who was arrested on January 17, 2023.\r\n2) On that same date, the Department denied the request in its entirety pursuant to\r\nsection 7(1)(c) of FOIA.\r\n3) On March 27, 2026, Mr. Rutecki submitted a Request for Review contesting\r\nthe denial. Mr. Rutecki's Request for Review was timely filed and otherwise complies with the\r\nrequirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2024), as amended by Public\r\nAct 104-438, effective January 1, 2026).\r\n4) On April 14, 2026, the Public Access Bureau forwarded a copy of the Request\r\nfor Review to the Department, together with a letter asking for unredacted copies of the\r\ncontested records for this office's confidential review. The letter also requested a detailed written\r\nexplanation of the factual and legal bases for the applicability of section 7(1 )( c) of FOIA to the\r\nwithheld records .\r\n\r\n29\r\n\r\nAlthough the Case Supplemental Report refers to photographs of the victim's injuries, the\r\nDepartment's Records Clerk confirmed those photographs were destroyed and provided this office with a copy of a\r\ndocument which authorized their disposal. Property Release/Disposal form , [Oak Lawn Police Department], Officer\r\nFlisk, Oak Lawn, Illinois, Case No. 23-00299, February 22, 2023 .\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 10\r\n5) On April 17, 2026, the Department furnished its written response and a copy\r\nof the responsive Incident/Investigation Report.\r\n6) On that same date, this office forwarded a copy of the Department's response\r\nletter to Mr. Rutecki and notified him of his opportunity to reply. On April 21, 2026, he replied.\r\n7) On May 13, 2026, the Department furnished to this office an arrest card, Case\r\nSupplemental Report, and records concerning the processing and detention of the arrestee at the\r\njail.\r\n8) On May 21 , 2026, this office extended the time in which to issue a binding\r\nopinion by 30 business days, to July 8, 2026. Accordingly, the Attorney General may properly\r\nissue a binding opinion with respect to this matter.\r\n9) On June 4, 2026, this office asked the Department to provide an additional\r\nresponse concerning the responsiveness the records provided on May 13, 2026, and its basis for\r\nwithholding them. On June 5, 2026, the Department stated that it denied Mr. Rutecki's request in\r\nits entirety and that he was not entitled to any of the records.\r\n10) Under FOIA, the scope of a request that reasonably describes records must be\r\nliberally construed even if the request could have been more precise.\r\n11) Records concerning the processing and detention of the arrestee at the jail\r\nafter the arrest are not responsive to Mr. Rutecki's request for records related to the investigation\r\nof the arrestee. In contrast, the Case Supplemental Report documenting the collection of\r\nevidence and the arrest record that reflects the result of the investigation must be liberally\r\nconstrued to be encompassed by Mr. Rutecki's request.\r\n12) Section 7(1)(c) of FOIA exempts from disclosure \"(p]ersonal information\r\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\r\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\r\nsubjects of the information.\" Section 7(1 )( c) defines \"unwarranted invasion of personal privacy\"\r\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\r\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\r\nthe information.\"\r\n13) Section 2.15(a) of FOIA specifically requires the disclosure of basic\r\ninformation concerning arrests. Because the specific requirements of section 2.15(a) of FOIA\r\nprevail over the general provisions of section 7(1)(c), the information listed in section 2.15(a) of\r\nFOIA must be disclosed. Additionally, the public interest in disclosure of information\r\nconcerning the investigation and arrest outweighs the limited and qualified right to privacy of the\r\narrestee in disclosure of information about the arrest.\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 11\r\n14) With respect to the remaining portions of the records, disclosure of the\r\nidentifying information of the victim, witnesses and other third parties in the police reports and\r\nall references to children would constitute an unwarranted invasion of personal privacy and\r\ntherefore is exempt from disclosure pursuant to section 7(1)(c) of FOIA. Because the victim's\r\nright to privacy in the information in the third sentence of the first paragraph of the narrative as\r\nwell as the fourth paragraph outweighs any legitimate public interest in disclosure, those portions\r\nalso are exempt from disclosure pursuant to section 7(1)(c) of FOIA.\r\n15) Redaction of this exempt information sufficiently protects the applicable\r\nprivacy interests. Otherwise, the contested records do not contain highly graphic information or\r\notherwise highly personal details regarding the victim or witnesses. The public interest in\r\ndisclosure of information concerning the investigation and arrest outweighs the victim and\r\nwitnesses' right to privacy in those portions of the records.\r\nAccordingly, the Department did not prove by clear and convincing evidence that\r\nthe records are exempt from disclosure in their entirety under section 7(1)(c) of FOIA.\r\nTherefore, it is the opinion of the Attorney General that the Oak Lawn Police\r\nDepartment has violated FOIA by improperly withholding the Incident/Investigation Report,\r\narrest card, and evidence technician report responsive to Mr. Rutecki's March 25 , 2026, FOIA\r\nrequest. Accordingly, the Department is hereby directed to take immediate and appropriate\r\naction to comply with this opinion by disclosing copies of the reports in a supplemental response\r\nto Mr. Rutecki's request, subject only to permissible redactions of the discrete information\r\ndescribed above. The Department also may redact dates of birth pursuant to section 7(1)(c) 31\r\nand, pursuant to section 7(1)(b) of FOIA, 32 the Department may redact \"private information\" 33 as\r\nthat term is defined in FOIA. If the Department redacts information from the copies of the\r\n\r\n31\r\n\r\nSee Ill. Att'y Gen. Pub. Acc. Op. No . 16-009, issued November 7, 2016, at 12 (concluding that\r\n\"[a]n individual's birth date is highly person al by its very nature and the subject's right to privacy outweighs any\r\nlegitim ate public interest in disclosing this inform ation .\"\r\n32\r\n5 lLCS 140/7( l)(b) (West 2024), as amended by Public Acts 104-438, effective January I, 2026;\r\nI 04-443, effective January I, 2026.\r\n33\r\n\r\nSection 2(c-5) ofFOJA (5 ILCS 140/2(c-5) (West 2024), as amended by Public Act 104-438,\r\neffective January 1, 2026) provides:\r\n\"Private information\" means unique identifiers, including a person's\r\nsocial security number, driver's license number, employee identification number,\r\nbiometric identifiers, personal financial information , passwords or other access\r\ncodes, medical records, home or personal telephone numbers, and personal\r\nemail addresses. Private information also includes home address and personal\r\nlicense plates, except as otherwise provided by law or when compiled without\r\npossibility of attribution to any person .\r\n\r\n\fMr. Jared Rutecki\r\nMs. Sandra Cruz\r\nJune 30, 2026\r\nPage 12\r\nrecords it provides to Mr. Rutecki, it must include a written notice of denial that fully complies\r\nwith the requirements of section 9(b) ofFOIA. 34\r\nThis opinion shall be considered a final decision of an administrative agency for\r\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\r\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\r\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\r\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Jared\r\nRutecki as defendants. See 5 ILCS 140/11.5 (West 2024).\r\nSincerely,\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\n\r\nBy:\r\nR. Douglas Rees\r\nChief Deputy Attorney General\r\n\r\n34\r\n5 ILCS 140/9(b) (West 2024) (\"When a request for public records is denied on the grounds that\r\nthe records are exempt under Section 7 of this Act, the notice of denial shall specify the exemption claimed to\r\nauthorize the denial and the specific reasons for the denial , including a detailed factual basis and a citation to\r\nsupporting legal authority.\").\r\n\r\n\fCERTIFICATE OF SERVICE\r\n\r\nBenjamin J. Silver, Supervising Attorney, Public Access Bureau, hereby certifies\r\nthat he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-006)\r\nupon:\r\nMr. Jared Rutecki\r\nInvestigative Reporter\r\nChicago Tonight\r\nWTTW-TV-PBS-Ch. 11\r\n5400 North Saint Louis Avenue\r\nChicago, Illinois 60625\r\njrutecki@wttw.com\r\nMs. Sandy Cruz\r\nRecords Clerk\r\nOak Lawn Police Department\r\n9446 South Raymond Avenue\r\nOak Lawn, Illinois 60453\r\nscruz@oaklawn-il.gov\r\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\r\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\r\ndeposited in the United States mail at Chicago, Illinois on June 30, 2026 .\r\n\r\n...---------:;\r\n\r\n--\r\n\r\n-\r\n\r\nin J. Silver\r\nSupervising Attorney\r\nBenjamin J. Silver\r\nSupervising Attorney\r\nPublic Access Bureau\r\nOffice of the Attorney General\r\n115 South LaSalle Street\r\nChicago, Illinois 60603\r\n(312) 814-6021\r\n\r\n-\r\n\r\n-✓\r\n\r\n--------- -\r\n\r\n\f"}
{"id":1483,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-07-20","case_number":"2026 PAC 94008","request_numbers":["94008"],"title":"Thornton Township Board violated OMA by taking final action on an item not on its agenda","filename":"PUBLIC ACCESS OPINION 26-007 (Request for Review 2026 PAC 94008).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-007 (Request for Review 2026 PAC 94008).pdf","word_count":4638,"summary":"The Lansing Journal requested review of the Thornton Township Board of Trustees' April 20, 2026, meeting, alleging the Board violated OMA by taking final action to create five employment positions without listing the matter on the posted agenda. The PAC found a violation of section 2.02(c) for failing to set forth the general subject matter on the agenda, but determined the Board complied with section 2(e) by providing an adequate public recital before the vote.","plain_summary":"A local newspaper complained that the township board voted to create five new jobs without putting that item on the public meeting agenda. The Attorney General agreed that this was a violation of the Open Meetings Act because the agenda didn't mention the job creation, but found the board did properly explain what it was voting on before the vote. As a result, the board must be more careful to include such items on future agendas, but the action itself was not invalidated due to the recital.","holding":"The Thornton Township Board of Trustees violated section 2.02(c) of the Open Meetings Act by taking final action on a matter not identified on the meeting agenda, but satisfied section 2(e) by providing an adequate public recital of the matter before taking final action.","legal_question":"Whether the Board violated OMA section 2.02(c) by taking final action on a matter not identified on the posted agenda, and whether the Board's public recital satisfied section 2(e).","disposition":"partial_violation","primary_statute":["5 ILCS 120/2.02(c)","5 ILCS 120/2.02(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Thornton Township Board of Trustees","requesting_party":"Melanie Jongsma, The Lansing Journal","pac_outcome":"Partial violation: agenda violation found, recital requirement satisfied","pac_law_type":null,"subject_category":"meeting agenda","subject_description":"The Board's approval of five new township employment positions during a regular meeting.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-007.pdf","sha256":"4b3c0c3390d9aba8056f0704bda2dc97416325749d4f5e389157b2f691be576a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 0 time(s), clean","faq_tags":["meeting agenda","final action","public recital","employment positions","Open Meetings Act"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Approval of new township employment positions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-94008/","full_text":"--- PAGE 1 ---\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 20, 2026\n\nPUBLIC ACCESS OPINION 26-007\n(Request for Review 2026 PAC 94008)\n\nOPEN MEETINGS ACT:\nTaking Final Action on Matter Not\nIdentified on Meeting Agenda;\nPublic Recital of the Nature of the\nMatter Under Consideration Prior\nto Taking Final Action\n\nMs. Melanie Jongsma\nThe Lansing Journal\nP.O. Box 742\nLansing, Illinois 60438\n\nThe Honorable Napolean B. Harris III\nThornton Township Supervisor\n333 East 162nd Street\nSouth Holland, Illinois 60473\n\nDear Ms. Jongsma and Mr. Harris:\n\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed\nbelow, this office concludes that the Thornton Township (Township) Board of Trustees (Board)\nviolated section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) during its April 20, 2026,\nmeeting by taking final action to approve the creation of five Township employment positions\nwithout setting forth the general subject matter of that action on the posted meeting agenda. This\noffice also concludes that the Board satisfied the requirements of section 2(e) of OMA (5 ILCS\n120/2.02(e) (West 2025 Supp.)) by providing an adequate public recital before taking final\naction.\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttorneyGeneral.gov\n\n--- PAGE 2 ---\n\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 2\n\nBACKGROUND\n\nOn April 21, 2026, Ms. Melanie Jongsma, on behalf of The Lansing Journal,\nsubmitted a Request for Review alleging that the Board violated OMA during its April 20, 2026,\nmeeting when it took final action to approve the creation of additional Township employment\npositions without providing advance notice of that action on the meeting agenda, and without\nspecifically describing the nature of the action to be taken before the vote occurred.1 She alleged\nthat after the Township Supervisor asked the Board to \"'approve the necessary hires to go with\n[his] Supervisor's Report[,]\"' a Board Trustee made a motion to \"'approve the Supervisor's Report\nand actions set forth in the report.\"'2 Ms. Jongsma stated that the Board unanimously voted to\napprove the motion.3 She argued that although the meeting agenda contained the item\n\"'Approval of Supervisor's Report[,]\"' that agenda item did not provide the public with adequate\nadvance notice of the Board's final action to approve the hiring of additional personnel.4 Ms.\nJongsma alleged further that \"[a]s a result, members of the public – including representatives of\nThe Lansing Journal – were unable to determine in advance, or even at the time of the vote, the\nsubstance of the action being taken (for example, whether it involved full-time or part-time\nsalaries, benefits, training, etc.).\"5\n\nOn May 19, 2026, the Public Access Bureau sent the Township a copy of the\nRequest for Review6 and a letter asking the Board to provide a written response to the\nallegations, along with copies of the agenda, minutes (in draft form, if necessary), and any\nrecordings of the open session portion of the Board's April 20, 2026, meeting.7 On May 23,\n2026, Ms. Jongsma provided this office with an internet link to a video recording8 of the\n\n1E-mail from Melanie Jongsma, The Lansing Journal, to [Teresa] Lim, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (April 21, 2026).\n\n2E-mail from Melanie Jongsma, The Lansing Journal, to [Teresa] Lim, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (April 21, 2026).\n\n3E-mail from Melanie Jongsma, The Lansing Journal, to [Teresa] Lim, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (April 21, 2026).\n\n4E-mail from Melanie Jongsma, The Lansing Journal, to [Teresa] Lim, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (April 21, 2026).\n\n5E-mail from Melanie Jongsma, The Lansing Journal, to [Teresa] Lim, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (April 21, 2026).\n\n6Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the\nIllinois Attorney General, to [Casey Nesbit, Clerk, Thornton Township] (May 19, 2026).\n\n7Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to the Honorable Napolean B. Harris III, Thornton Township Supervisor (May 19, 2026), at 2.\n\n8Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM.\n\n--- PAGE 3 ---\n\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 3\n\nmeeting.9 On June 8, 2026, counsel for the Board provided this office with copies of the meeting\nminutes, agenda, an audio recording of the meeting, the Supervisor's Report, and a written\nresponse to Ms. Jongsma's allegations.10 On the same day, the Public Access Bureau forwarded\na copy of the Board's written response to Ms. Jongsma and notified her of her opportunity to\nreply.11 She submitted a reply on June 10, 2026.12\n\nOn June 18, 2026, this office extended the time for issuing a binding opinion by\n21 business days, to July 20, 2026, pursuant to section 3.5(e) of OMA.13\n\nANALYSIS\n\nSection 1 of OMA (5 ILCS 120/1 (West 2024)) provides \"that public bodies exist\nto aid in the conduct of the people's business and that the people have a right to be informed as to\nthe conduct of their business.\" Thus, the General Assembly \"declares it to be the public policy\nof this State that its citizens shall be given advance notice of and the right to attend all meetings\nat which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1\n(West 2024).\n\nFinal Action\n\nIn furtherance of the public policy stated above, sections 2.02(a)14 and 2.02(c) of\nOMA require a public body to post an agenda in advance of a meeting that lists the general\nsubject matter of any final action that will be taken. Additionally, section 2(e) of OMA provides\nthat \"[f]inal action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\"\n\nAlthough OMA does not define \"final action,\" Illinois courts have construed a\npublic vote that brings a matter to a resolution as final action. See, e.g., Board of Education of\n\n9E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (May 23, 2026).\n\n10Letter from Priscilla E. Centeno, Odelson, Murphey, Frazier & McGrath, Ltd., to [Michael J.]\nKnight, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 8, 2026).\n\n11Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Melanie Jongsma, [The Lansing Journal] (June 8, 2026).\n\n12E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (June 10, 2026).\n\n13Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Melanie Jongsma, [The Lansing Journal], and Priscilla Centeno, Senior Associate Attorney,\nOdelson, Sterk, Murphey, Frazier & McGrath, Ltd. (June 18, 2026).\n\n145 ILCS 120/2.02(a) (West 2024).\n\n--- PAGE 4 ---\n\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 4\n\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 74\n(holding that \"[u]nder the plain language of section 2(e) of the Open Meetings Act, the public\nvote is not merely a ratification of a final action taken earlier in a closed session; it is the final\naction.\"); see also Jewell v. Board of Education of Community Unit School District No. 300, 19\nIll. App. 3d 1091, 1094 (1974) (\"Since a public roll call vote allows the people to know the\npositions taken by the individual members of the Board, so such members can be held\naccountable for their actions, we feel that the 'final action' is the roll call vote.\"). Consistent with\nthe caselaw and the public policy underlying OMA, the Attorney General has previously\nconcluded that \"decisions which bring matters to a resolution—regardless of the outcome of the\nvote—constitute final actions that must be made transparently because the public has a right to\nknow how public officials conducted themselves.\" Ill. Att'y Gen. Pub. Acc. Op. No. 25-009,\nissued August 5, 2025, at 6.\n\nThis office has reviewed the video recording of the April 20, 2026, Board meeting\nprovided by Ms. Jongsma, as well as the audio recording provided by the Board. Near the end of\nthe meeting, the Township Supervisor proposed \"support for additional personnel.\"15 The\nSupervisor suggested adding five new employment positions to support Township operations and\nenhance services: a support staff position for the Township assistance program, a transportation\ndispatcher, a transportation manager, an administrative assistant, and a clerk for the Township\nAssessor's Office.16 He concluded his remarks by asking the Board for a \"motion to approve the\nnecessary hires\" that he had identified in his Supervisor's Report.17 A trustee then made a\n\"motion to approve the Supervisor's Report and actions set forth in the report.\"18 The Board took\na roll call vote and approved the motion unanimously.19\n\nIn its response to this office, the Board argued that three of the five positions\n\"have not been posted as of today's date, so no official action has been taken with respect to these\npositions.\"20 The response also argued that the vote approving the addition of a clerk for the\n\n15Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM, at 1:26:07.\n\n16Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM, at 1:26:32 to 1:26:47.\n\n17Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM, at 1:27:08 to 1:27:11.\n\n18Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM, at 1:27:16 to 1:27:22.\n\n19Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPEz4uTM, at 1:27:28 to 1:27:38.\n\n20Letter from Priscilla E. Centeno, Odelson, Murphey, Frazier & McGrath, Ltd., to [Michael J.]\nKnight, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 8, 2026), at 2.\n--- PAGE 5 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 5\n\nTownship Assessor's Office \"was merely a formality\" and did not constitute a final action\nbecause the Board lacked authority to make personnel decisions for the Assessor's Office.21 The\nBoard cited section 2-65(a) of the Property Tax Code (35 ILCS 200/2-65(a) (West 2024)), which\nprovides, in pertinent part:\n\nIn all counties under township organization where a\ntownship or multi-township assessor is unable alone to perform all\nduties of the office, he or she may appoint one or more suitable\npersons as deputies to assist in making the assessment, and may\nappoint other employees required for operation of the office.\n\nIn her reply, Ms. Jongsma noted that a motion had been made and seconded, and\nthat the trustees took a roll call vote to authorize the Township to create and fill these positions.22\nShe argued that \"[t]his vote granted the Supervisor legal and budgetary authorization to create\nand fill these roles. The physical act of posting a job description at a later date is an\nadministrative task; the legislative 'final action' occurred during the vote.\"23\n\nThe Board's argument that no final action occurred because some of the positions\nwere not posted after the vote and because the Board lacks authority over hiring in the Assessor's\nOffice misconstrues the requirements and public policy behind OMA's requirements that final\naction be preceded by public notice and a public recital. OMA requires public bodies to notify\nthe public before meetings of the actions that will be contemplated and to disclose information\nabout those actions during meetings to ensure that members of the public have an opportunity to\nbe present and informed about the conduct of public business. Whether the actions taken by\npublic bodies are within a public body's authority or subsequently effectuated are separate\nmatters that OMA does not govern. See Ill. Att'y Gen. Pub. Acc. Op. No. 24-003, issued March\n1, 2024, at 7-9 (city council's approval to enter a representation agreement constituted final\naction even if the city manager had authority to effectuate the agreement without city council\napproval).\n\nDuring the Board's April 20, 2026, meeting, the Supervisor expressly sought and\nreceived the Board's approval to create five positions in the Township. Because the vote\nresolved the question of whether the Board approved of the creation of those positions, the vote\nconstituted \"final action\" for purposes of section 2.02(c) and 2(e) of OMA. Therefore, this office\n\n21Letter from Priscilla E. Centeno, Odelson, Murphey, Frazier & McGrath, Ltd., to [Michael J.]\nKnight, [Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General] (June 8, 2026),\nat 2.\n\n22E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (June 10, 2026).\n\n23E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (June 10, 2026).\n\n--- PAGE 6 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 6\n\nmust determine whether the Board provided the public with adequate advance notice of that final\naction in its April 20, 2026, meeting agenda and a sufficient public recital during the meeting.\n\nSufficiency of the Agenda\n\nSection 2.02(a) of OMA provides that \"[a]n agenda for each regular meeting shall\nbe posted at the principal office of the public body and at the location where the meeting is to be\nheld at least 48 hours in advance of the holding of the meeting.\" Section 2.02(c) of OMA further\nrequires that \"[a]ny agenda required under this Section shall set forth the general subject matter\nof any resolution or ordinance that will be the subject of final action at the meeting.\"\n\nOMA does not define the term \"general subject matter.\" However, the Senate\ndebate on House Bill No. 4687, which, as Public Act 97-827, effective January 1, 2013, added\nsection 2.02(c) of OMA, indicates that the General Assembly intended this provision to ensure\nthat agendas provide sufficiently descriptive advance notice of the matters upon which a public\nbody anticipates taking final action:\n\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a\n* * * general notice, if you're going to have and take final action,\nas to generally what's going to be discussed so that - that people\nwho follow their units of local government know what they're\ngoing to be acting upon. Remarks of Sen. Dillard, May 16, 2012,\nSenate Debate on House Bill No. 4687, at 47.\n\nThe agenda item that corresponds to the approval of the employment positions at\nthe Board's April 20, 2026, meeting merely states:\n\nXII. Supervisor Report\nA. Approval of Supervisor's Report[24]\n\nThe Board's response to this office included a copy of the Supervisor's Report,25\nwhich contains updates on several topics and includes a request to create the employment\npositions that the Board approved during the meeting. But the Board's response did not\nspecifically address the sufficiency of the agenda item.26 Ms. Jongsma's reply asserted that \"[a]\n\n24Thornton Township Board of Trustees, Agenda Item XII, Meeting (April 20, 2026).\n\n25Supervisor's Report, [Napolean B. Harris, Supervisor, Thornton Township] (undated).\n\n26Letter from Priscilla E. Centeno, Odelson, Murphey, Frazier & McGrath, Ltd., to [Michael J.]\nKnight, [Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General] (June 8, 2026).\n\n--- PAGE 7 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 7\n\nmember of the public scanning the published agenda could not reasonably anticipate that\n'Approval of Supervisor's Report' would include a vote to expand the Township's employment\nroster and allocate taxpayer funds for new positions.\"27\n\nThe agenda item \"Approval of Supervisor's Report\" provided no indication that\nthe Board would take any action concerning the creation of employment positions. Because the\nagenda did not set forth the general subject matter of the Board's final action to create\nemployment positions, the Board violated section 2.02(c) of OMA.\n\nPublic Recital\n\nAs cited above, section 2(e) of OMA provides that \"[f]inal action shall be\npreceded by a public recital of the nature of the matter being considered and other information\nthat will inform the public of the business being conducted.\"\n\nIn Board of Education of Springfield School District No. 186, 2017 IL 120343,\n¶ 9, the Illinois Supreme Court considered whether a school board provided an adequate public\nrecital before voting to approve a separation agreement with its superintendent. The recital in\nthat case consisted of the school board president stating that the board was considering an agenda\nitem for \"'approval of a resolution regarding the separation agreement[]'\" as well as reading the\ntext of the resolution itself: \"'The Board President recommends that the Board of Education of\nSpringfield School District No. 186 vote to approve the separation agreement and release\nbetween Dr. Walter Milton, Jr., and the Board.'\" Springfield School District, 2017\nIL 120343, ¶ 81. The Court concluded that the school board's public recital was sufficient: \"The\nboard president recited the general nature of the matter under consideration—a separation\nagreement and release—and specific detail sufficient to identify the particular transaction—the\nseparation agreement was between Dr. Milton and the Board.\" Springfield School District, 2017\nIL 120343, ¶ 83. The Court explained that \"while the 'nature of the matter' may be recited in\nnonspecific terms (the approval of a loan, a contract, a purchase, a policy, or a resolution), 'other\ninformation' is necessary to inform the public of the specific item of business (the purpose of the\npolicy, the type of property being purchased, the title of the policy, or\nthe purpose of the resolution).\" Springfield School District, 2017 IL 120343, ¶ 50. Notably, the\nCourt rejected the notion that section 2(e) of OMA requires a public body to publicly recite \"key\nterms\" such as the amount of the separation agreement, stating that section 2(e) is satisfied when\nthe recital announces \"the nature of the item under consideration with sufficient detail to identify\nthe particular transaction or issue[.]\" Springfield School District, 2017 IL 120343, ¶¶ 61, 64.\n\nIn its response to this office, the Board argued that the Township Supervisor\nsatisfied the public recital requirement in section 2(e) by naming the five new positions that he\n\n27E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (June 10, 2026).\n\n--- PAGE 8 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 8\n\nproposed creating and explaining the need for the additional personnel.28 In her reply, Ms.\nJongsma argued that that information was insufficient because it \"omitted crucial details\nnecessary for true public accountability, including whether the roles were full-time or part-time,\nwhat salaries were being authorized, the cost of any benefits packages, and the cumulative\nimpact on the township budget.\"29\n\nThis office's review of the meeting recording confirmed that before asking for the\nBoard's approval of the employment positions, the Township Supervisor identified the specific\npositions that he proposed creating.30 He also explained that the need for the additional\npersonnel arose from increasing demands related to the Township Assistance Program and other\nTownship services.31 The Supervisor then requested a \"motion to approve the necessary hires\nthat go with my Supervisor's Report.\"32 A member of the Board immediately offered a \"motion\nto approve the Supervisor's Report and actions set forth in the report,\" which the Board\napproved.33\n\nAlthough the Board could have more clearly informed the public by re-stating the\nfive proposed employment positions in the motion, the Supervisor, who is the chairman of the\nBoard,34 described each of the positions and the justification for them before asking for the\nBoard's approval. Those comments and the motion announced the nature of the matter under\nconsideration with sufficient detail to identify the issue being decided. In accordance with the\nholding in Springfield School District No. 186, the Board's public recital was not required to\ndescribe the financial impact of the proposal or key terms, such as the salaries and benefits\nassociated with the positions. Accordingly, this office concludes that the Board satisfied the\nrequirements of section 2(e) by providing an adequate public recital before taking final action.\n\n28Letter from Priscilla E. Centeno, Odelson, Murphey, Frazier & McGrath, Ltd., to [Michael J.]\nKnight, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 8, 2026) at 1-2.\n\n29E-mail from Melanie Jongsma, The Lansing Journal, to [Michael J.] Knight, [Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General] (June 10, 2026).\n\n30Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPez4uTM, at 1:26:32 to 1:26:47.\n\n31Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPez4uTM, at 1:26:07 to 1:26:58.\n\n32Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPez4uTM, at 1:26:59 to 1:27:14.\n\n33Thornton Township Board of Trustees Meeting, April 20, 2026, Meeting, YouTube (April 20,\n2026), https://www.youtube.com/watch?v=x5qlPez4uTM, at 1:27:16 to 1:27:22.\n\n3460 ILCS 1/80-5 (West 2024).\n--- PAGE 9 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 9\n\nFINDINGS AND CONCLUSIONS\n\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n\n1) On April 21, 2026, Ms. Melanie Jongsma, on behalf of The Lansing Journal,\nsubmitted a Request for Review alleging that the Thornton Township Board of Trustees violated\nOMA during its April 20, 2026, meeting by taking final action to approve the creation of new\nemployment positions without providing advance notice of that action on the meeting agenda,\nand without specifically describing the nature of the action before the Board voted. Ms.\nJongsma's Request for Review was timely filed and otherwise complies with the requirements of\nsection 3.5(a) of OMA.\n\n2) On May 19, 2026, the Public Access Bureau sent a copy of the Request for\nReview to the Board. The Public Access Bureau also sent the Board a letter asking it to provide\na written response to Ms. Jongsma's allegations, along with copies of the agenda, minutes, and\nany recordings of the open session portion of the Board's April 20, 2026, meeting.\n\n3) On June 8, 2026, counsel for the Board provided this office with a written\nresponse and copies of the meeting minutes, agenda, audio recording of the meeting, and the\nwritten Supervisor's Report.\n\n4) On the same day, the Public Access Bureau forwarded a copy of the Board's\nwritten answer to Ms. Jongsma and notified her of her opportunity to reply. She replied on June\n10, 2026.\n\n5) On June 18, 2026, the Public Access Bureau extended the time within which\nto issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA. Accordingly,\nthe Attorney General may properly issue a binding opinion with respect to this matter.\n\n6) Section 2.02(c) of OMA provides that \"[a]ny agenda required under this\nSection shall set forth the general subject matter of any resolution or ordinance that will be the\nsubject of final action at the meeting.\"\n\n7) At its April 20, 2026, meeting, the Board made a motion to \"approve the\nSupervisor's Report and actions set forth in the report[,]\" which included the approval of the\nTownship Supervisor's proposal to create new Township employment positions. The Board\nvoted in favor of the motion.\n\n8) Because the Board's vote resolved the question of whether the Board approved\nthe creation of the new positions, the vote constituted a final action for purposes of OMA.\n\n--- PAGE 10 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 10\n\n9) The agenda item that corresponded to the Board's final action on the\nemployment positions merely indicated that the Board would consider approving the\nSupervisor's Report. That agenda item did not set forth the general subject matter of the vote to\ncreate new Township employment positions. Therefore, this office concludes that the Board\nviolated section 2.02(c) of OMA in connection with that final action.\n\n10) Section 2(e) of OMA provides that \"[f]inal action shall be preceded by a\npublic recital of the nature of the matter being considered and other information that will inform\nthe public of the business being conducted.\"\n\n11) Before the motion and vote, the Township Supervisor named the positions for\nwhich he was requesting Board approval and explained why he was requesting approval to create\nadditional positions. A member of the Board then made a \"motion to approve the Supervisor's\nReport and actions set forth in the report.\" Because the Board announced the nature of the\nmatter under consideration with sufficient detail to identify the issue being decided, this office\nconcludes that the Board satisfied the public recital requirement of section 2(e) of OMA.\n\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy its violation of section 2.02(c) of OMA by re-voting on the approval of the\ncreation of the new employment positions after posting a meeting agenda that sets forth the\ngeneral subject matter of that proposed action. As required by section 3.5(e) of OMA, the Board\nshall either take the necessary action as soon as practical to comply with the directives of this\nopinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West\n2024).\n\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Ms.\nMelanie Jongsma, or the Attorney General of Illinois and the Supervisor of Thornton Township,\nas defendants. See 5 ILCS 140/11.5 (West 2024).\n\nSincerely,\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nBy: [Signature]\nR. Douglas Rees\nChief Deputy Attorney General\n\n--- PAGE 11 ---\nMs. Melanie Jongsma\nThe Honorable Napolean B. Harris III\nJuly 20, 2026\nPage 11\n\ncc: Ms. Priscilla E. Centeno\nSenior Associate Attorney\nOdelson, Murphey, Frazier & McGrath, Ltd.\n3318 West 95th Street\nEvergreen Park, Illinois 60805\n\n--- PAGE 12 ---\nCERTIFICATE OF SERVICE\n\nJoshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies\nthat he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-007)\n\nMs. Melanie Jongsma\nThe Lansing Journal\nP.O. Box 742\nLansing, Illinois 60438\nmjongsma@thelansingjournal.com\n\nThe Honorable Napolean B. Harris III\nThornton Township Supervisor\n333 East 162nd Street\nSouth Holland, Illinois 60473\nnharris@thorntontwp.com\n\nMs. Priscilla E. Centeno\nSenior Associate Attorney\nOdelson, Murphey, Frazier & McGrath, Ltd.\n3318 West 95th Street\nEvergreen Park, Illinois 60805\npcenteno@omfmlaw.com\n\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on July 20, 2026.\n\n[Signature]\nJoshua M. Jones\nBureau Chief\n\nJoshua M. Jones\nBureau Chief\nPublic Access Bureau, Chicago\nOffice of the Attorney General\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-8413"}
{"id":1484,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-07-28","case_number":"2026 PAC 94082","request_numbers":["94082","94083"],"title":"Village of Sherrard violated FOIA by failing to respond to two records requests","filename":"PUBLIC ACCESS OPINION 26-008 (Request for Review 2026 PAC 94082; 94083).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-008 (Request for Review 2026 PAC 94082; 94083).pdf","word_count":2204,"summary":"Mr. Kilbane submitted two FOIA requests to the Village of Sherrard seeking agendas and meeting minutes for a specified period, and the Village failed to respond to either request. The PAC found the Village violated FOIA by not complying with or denying the requests in writing.","plain_summary":"Mr. Kilbane asked the Village for meeting agendas and minutes, but the Village never replied. The Attorney General's office said this was a violation of FOIA because public bodies must respond to requests within the law's time limits. The Village must now provide the records or properly deny the requests.","holding":"The Village of Sherrard violated section 3(d) of FOIA by failing to respond to two FOIA requests from Mr. Kilbane.","legal_question":"Whether the Village of Sherrard violated FOIA by failing to respond to two FOIA requests for agendas and meeting minutes.","disposition":"violation_found","primary_statute":["5 ILCS 140/3(d)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Sherrard","requesting_party":"Mr. Matthew Kilbane","pac_outcome":"Violation found - failure to respond to FOIA requests","pac_law_type":null,"subject_category":"meeting minutes","subject_description":"The underlying subject matter is the Village's failure to respond to requests for agendas and meeting minutes from January 1, 2026 to April 19, 2026.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-008.pdf","sha256":"7cd23eeb9f36e52d2d2d73cc99cab18036416ad8e5e7f6c07280c3df61a06c5c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 0 time(s), clean","faq_tags":["FOIA request","meeting minutes","agendas","failure to respond","Village of Sherrard"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Agendas and meeting minutes from January to April 2026","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-94082/","full_text":"OFFICE OF THE ATTORNEY GENERAL\r\nSTATE OF ILLINOIS\r\n\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\n\r\nJuly 28, 2026\r\n\r\nPUBLIC ACCESS OPINION 26-008\r\n(Requests for Review 2026 PAC 94082; 94083)\r\nFREEDOM OF INFORMATION ACT:\r\nDuty to Respond to FOIA Requests\r\nMr. Matthew Kilbane\r\n801 Bend Boulevard, Apartment 103\r\nEast Moline, Illinois 61244\r\nThe Honorable Laura Green\r\nVillage Clerk\r\nVillage of Sherrard\r\n517 3rd Street\r\nSherrard, Illinois 61281\r\nDear Mr. Kilbane and Ms. Green:\r\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\r\nof the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2025 Supp.)). For the\r\nreasons discussed below, this office concludes that the Village of Sherrard (Village) violated\r\nsection 3(d) of FOIA (5 ILCS 140/3(d) (West 2025 Supp.)) by failing to comply with, deny in\r\nwriting in whole or in part, or otherwise appropriately respond to two FOIA requests submitted\r\nby Mr. Matthew Kilbane.\r\n\r\nBACKGROUND\r\nOn April 20, 2026, Mr. Kilbane e-mailed a FOIA request to the Village seeking\r\ncopies of \"all Agendas and Meeting Minutes for all meetings the village has held between\r\n\r\n500 South 2nd Street\r\nSpringfie ld, Illinois 6270 1\r\n(217) 782-1090 • Fax: (2 17) 782-7046\r\n\r\n11 5 South LaSa lle Street\r\nChicago, Illinois 60603\r\n(312) 8 14-3000 • Fax: (3 12) 8 14-3806\r\n\r\n1745 Innovation Drive, Suite C\r\nCarbondale, Illinois 62903\r\n(618) 529-6400 • Fax: (6 18) 529-6416\r\n\r\nIndi viduals wi th hearing or speech disabilities can reach us by using the 7- 1-1 relay service.\r\nwww.lllinoi sAttorneyGeneral.gov\r\n\r\n,_,\r\n\r\n......\r\n\r\n, , r - .. ~ .. --,~ 4ii05\r\n\r\n\fMr. Matthew Ki 1bane\r\nThe Honorable Laura Green\r\nJuly 28, 2026\r\nPage 2\r\nJanuary 1, 2026 to April 19, 2026.\" 1 (Emphasis in original.) Approximately ten minutes later,\r\nMr. Kilbane e-mailed a second FOIA request to the Village seeking records concerning mold\r\nremediation at the Village Hall and asked whether \"critical physical documents\" had \"been\r\nrelocated to a safe location, or are they still in the village hall subjected to possible irrevocable\r\ndamage? And if so, why have those documents not been moved and when will they be moved?\" 2\r\nOn April 30, 2026, Mr. Kilbane submitted two Requests for Review to the Public\r\nAccess Counselor alleging that the Village had failed to respond to his April 20, 2026, FOIA\r\nrequests. 3\r\nOn May 21 , 2026, the Public Access Bureau e-mailed4 copies of the Requests for\r\nReview to the Village Mayor and Village Clerk, together with a letter asking whether the Village\r\nhad responded to Mr. Kil bane's FOIA requests .5 The May 21, 2026, letter also requested that if\r\nthe Village had not responded to Mr. Kilbane, it do so and provide copies of its responses to this\r\noffice.6 The Village did not respond to the inquiry letter.\r\nOn June 11 , 2026, the Public Access Bureau sent additional copies of the\r\nRequests for Review to the Village via both e-mail 7 and United States Postal Mail and again\r\nasked the Village to respond to the May 21, 2026, inquiry letter. 8 The letter advised the Village\r\n1\r\nE-mail from Matthew Kilbane to [Laura Green , Village Clerk, Village of Sherrard] and [Shawn\r\nWyant, Mayor, Village of Sherrard] (April 20, 2026).\r\n\r\n2\r\n\r\nE-mail from Matthew Kilbane to [Laura Green , Village Clerk, Village of Sherrard] and [Shawn\r\nWyant, Mayor, Village of Sherrard] (April 20, 2026).\r\n3\r\n\r\nE-mails from Matthew Kilbane to Public Access [Bureau, Office of the Attorney Genera l] (Apri l\r\n\r\n30, 2026).\r\n4\r\n\r\nE-mail from Christopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\r\nOffice of the Attorney General, to Mayor@ Sherrardillinois.org; clerk@sherrardillinois.org (May 21, 2026).\r\n5\r\n\r\nLetter from Christopher R. Boggs, Deputy Public Access Counse lor, Public Access Bureau,\r\nOffice of the Illinois Attorney General, to The Honorable Shawn Wyant, Mayor, Village of Sherrard, and The\r\nHonorable Laura Green , Clerk, Village of Sherrard (May 21 , 2026), at [I].\r\n6\r\n\r\nLetter from Christopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\r\nOffice of the Attorney General, to The Honorable Shawn Wyant, Mayor, Village of Sherrard, and The Honorable\r\nLaura Green, Clerk, Village of Sherrard (May 21, 2026), at [ 1-2].\r\n7\r\nE-mail from Christopher R. Boggs, AAG , Deputy Public Access Counselor, Public Access\r\nBureau, Office of the Illinois Attorney General , to Mayor@Sherrardillinois.org; clerk@sherrardillinois.org (June 11 ,\r\n2026).\r\n8\r\n\r\nLetter from Christopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\r\nOffice of the Attorney General , to The Honorable Shawn Wyant, Mayor, Village of Sherrard, and The Honorable\r\nLaura Green , Clerk, Village of Sherrard (June 11 , 2026), at [I] .\r\n\r\n\fMr. Matthew Kilbane\r\nThe Honorable Laura Green\r\nJuly 28, 2026\r\nPage 3\r\nthat if it did not promptly respond to the request, this office may be compelled to conclude that\r\nthe Village had not complied with the requirements of FOIA. 9\r\nOn June 25 , 2026, this office extended the time in which to issue a binding\r\nopinion by 30 business days, to August 11, 2026, pursuant to section 9.5(f) ofFOIA. 10\r\nOn June 29, 2026, Mr. Kilbane e-mailed this office stating that the Village still\r\nhad not responded to his FOIA requests. 11\r\nAs of the date of the issuance of this binding opinion, this office has not received\r\nany response from the Village, nor has it received any indication that the Village has responded\r\nto Mr. Kilbane's April 20, 2026, FOIA requests.\r\n\r\nANALYSIS\r\n\"It is a fundamental obligation of government to operate openly and provide\r\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\r\n140/1 (West 2024). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2024)), \"[a]ll records in\r\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\r\nSection 3(a) of FOIA (5 ILCS 140/J(a) (West 2025 Supp.)) provides that \"[e]ach public body\r\nshall make available to any person for inspection or copying all public records, except as\r\notherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) ofFOIA further provides:\r\nEach public body shall, promptly, either comply with or\r\ndeny a request for public records within 5 business days after its\r\nreceipt of the request, unless the time for response is properly\r\nextended under subsection (e) of this Section. Denial shall be in\r\nwriting as provided in Section 9 of this Act. Failure to comply\r\nwith a written request, extend the time for response, or deny a\r\nrequest within 5 business days after its receipt shall be considered\r\na denial of the request. A public body that fails to respond to a\r\nrequest within the requisite periods in this Section but thereafter\r\nprovides the requester with copies of the requested public records\r\nmay not impose a fee for such copies. A public body that fails to\r\n9\r\n\r\nLetter from Chri stopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\r\nOffice of the Attorney General , to The Honorable Shawn Wyant, Mayor, Vill age of Sherrard, and The Honorable\r\nLaura Green , Clerk, Village of Sherrard (June 11 , 2026), at [I].\r\n10\r\n\r\nLetter from Chri stoph er R. Boggs, Deputy Public Access Coun selor, Public Access Bureau,\r\nOffice of the Attorney General, to The Honorable Shawn Wyant, Mayor, Vill age of Sherrard, and The Honorable\r\nLaura Green , Clerk, Village of Sherrard (June 25 , 2026).\r\n11\r\n\r\nE-mail from Matthew [Kilbane] to Chris [Boggs, Deputy Public Access Counselor, Public\r\nAccess Bureau, Office of the Attorney General] (June 29, 2026).\r\n\r\n\fMr. Matthew Kilbane\r\nThe Honorable Laura Green\r\nJuly 28, 2026\r\nPage 4\r\nrespond to a request received may not treat the request as unduly\r\nburdensome under subsection (g).\r\nSection 3(e) of FOIA (5 ILCS 140/3(e) (West 2025 Supp.)) permits a public body to extend its\r\nresponse time by no more than five business days for any of seven enumerated reasons. Any\r\nadditional extension requires a written agreement between the requester and the public body. 5\r\nILCS 140/3(e) (West 2025 Supp.)).\r\nIt is undisputed that the Village did not respond to Mr. Kilbane's April 20, 2026,\r\nFOIA requests within five business days after their receipt by either complying with his requests,\r\nextending the time for the Village's responses pursuant to section 3(e) of FOIA, or denying the\r\nrequests in writing in whole or in part. The Village's failure to comply with the requisite\r\nresponse procedures violated section 3(d) of FOIA.\r\n\r\nFINDINGS AND CONCLUSIONS\r\nAfter full examination and giving due consideration to the information submitted,\r\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\r\n1) On April 20, 2026, Mr. Matthew Kilbane submitted two FOIA requests to the\r\nVillage seeking copies of meeting agendas and minutes and various records concerning mold\r\nremediation at the Village Hall. One of the requests also asked questions concerning the location\r\nof certain records and their possible relocation.\r\n2) On April 30, 2026, Mr. Kilbane submitted two Requests for Review to the\r\nPublic Access Counselor alleging that the Village had failed to respond to his April 20, 2026,\r\nFOIA requests. Mr. Kilbane's Requests for Review were timely filed and otherwise comply with\r\nthe requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2025 Supp.)).\r\n3) On May 21 , 2026, the Public Access Bureau forwarded copies of the Requests\r\nfor Review to the Village along with a letter asking whether the Village had responded to Mr.\r\nKilbane's FOIA requests. The Village did not respond.\r\n4) On June 11 , 2026, the Public Access Bureau sent additional copies of the\r\nRequests for Review and a second letter to the Village, via e-mail and United States Postal Mail ,\r\nasking the Village to promptly respond to this office's request for further information. The\r\nVillage did not respond.\r\n5) On June 25, 2026, this office extended the time in which to issue a binding\r\nopinion by 30 business days, to August 11 , 2026, pursuant to section 9.5(f) ofFOIA. Therefore,\r\nthe Attorney General may properly issue a binding opinion with respect to these matters.\r\n\r\n\fMr. Matthew Kilbane\r\nThe Honorable Laura Green\r\nJuly 28, 2026\r\nPage 5\r\n6) On June 29, 2026, Mr. Kilbane sent an e-mail to this office stating that the\r\nVillage still had not responded to his FOIA requests.\r\n7) As of the date of the issuance of this binding opinion, this office has received\r\nno information indicating that the Village has responded to Mr. Kilbane's April 20, 2026, FOIA\r\nrequests.\r\nTherefore, it is the opinion of the Attorney General that the Village has violated\r\nsection 3(d) of FOIA by failing, within the statutory time period for responding to Mr. Kilbane's\r\nApril 20, 2026, requests, to provide copies of the requested records or to deny the requests in\r\nwriting in whole or in part. Accordingly, the Village is hereby directed to take immediate and\r\nappropriate action to comply with this opinion by providing Mr. Kilbane with copies of all\r\nrecords responsive to his April 20, 2026, FOIA requests, subject only to permissible redactions,\r\nif any, under section 7 ofFOIA (5 ILCS 140/7 (West 2025 Supp.)). 12 If the Village determines\r\nthat any portion of the responsive records is exempt from disclosure under section 7, it is\r\ndirected to issue a written denial that fully complies with the requirements of section 9(a) of\r\nFOIA (5 ILCS 140/9(a) (West 2024)). 13\r\nThis opinion shall be considered a final decision of an administrative agency for\r\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\r\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\r\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\r\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\r\nMatthew Kilbane as defendants. See 5 ILCS 140/11.5 (West 2024).\r\nSincerely,\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\nBy:\r\n\r\nR. Douglas Rees\r\nChief Deputy Attorney General\r\n12\r\n\r\nBecause the Village did not comply with the statutory requirements for responding to Mr.\r\nKilbane's FOIA requests, the Village is precluded from treating the requests as unduly burdensome or imposing\r\ncopying fees for the responsive records . 5 ILCS 140/3(d) (West 2025 Supp.)).\r\n13\r\nTo the extent that Mr. Kilbane's request asked questions concerning the location of Village\r\ndocuments and any plans to relocate Village documents, FOIA does not require the Village to answer those\r\nquestions. Kenyon v. Garrels , 184 Ill. App. 3d 28 , 32 (1989) (\"The Act does not compel the agency to provide\r\nanswers to questions posed by the inquirer.\").\r\n\r\n\fCERTIFICATE OF SERVICE\r\n\r\nTeresa Lim, Deputy Bureau Chief, Public Access Bureau, hereby certifies that she\r\nhas served a copy of the foregoing Binding Opinion (Public Access Opinion 26-008) upon:\r\nMr. Matthew Kilbane\r\n801 Bend Boulevard, Apartment 103\r\nEast Moline, Illinois 61244\r\nMatthewkilbanel 7@gmail.com\r\nThe Honorable Laura Green\r\nVillage Clerk\r\nVillage of Sherrard\r\n517 3rd Street\r\nSherrard, Illinois 61281\r\nclerk@Sherrardillinois.org\r\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\r\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\r\ndeposited in the United States mail at Chicago, Illinois on July 28, 2026.\r\n\r\nTeresa Lim\r\nDeputy Bureau Chief\r\nTeresa Lim\r\nDeputy Bureau Chief\r\nPublic Access Bureau\r\nOffice of the Attorney General\r\n115 South LaSalle Street\r\nChicago, Illinois 60603\r\n(312) 814-5206\r\n\r\n\f"}
{"id":1485,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-08-21","case_number":"2026 PAC 94532","request_numbers":["94532"],"title":"Chicago Water Management properly withheld drainage infrastructure locations under Section 7(1)(x)","filename":"PUBLIC ACCESS OPINION 26-009 (Request for Review 2026 PAC 94532).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-009 (Request for Review 2026 PAC 94532).pdf","word_count":3280,"summary":"Daniel Beaudin requested records from the City of Chicago Department of Water Management detailing the locations of surface water drainage infrastructure, including catch basins and storm drains. The PAC determined that the City properly withheld the records under FOIA exemption 7(1)(x), which protects against endangering the safety of employees or the public.","plain_summary":"A citizen asked the City of Chicago for maps showing where storm drains and catch basins are located. The City refused, and the Attorney General's office agreed, saying that releasing this information could help criminals target infrastructure and endanger public safety. This means the City can keep those specific records secret.","holding":"The City of Chicago Department of Water Management did not violate FOIA by denying the request for records detailing the locations of surface water drainage infrastructure.","legal_question":"Whether the City of Chicago properly withheld records detailing the locations of surface water drainage infrastructure under FOIA exemption 7(1)(x), which protects against endangering the safety of employees or the public.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(x)"],"public_body":"City of Chicago Department of Water Management","requesting_party":"Daniel Beaudin","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"infrastructure records","subject_description":"Records detailing the exact locations of surface water drainage infrastructure, including catch basins and storm drains, in a specified area of Chicago.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-009.pdf","sha256":"e7089927aff99c3096d623c2f9ce7a55ae88498ebbafef1019c3e0b9b987e254","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 0 time(s), clean","faq_tags":["storm drains","catch basins","infrastructure","FOIA exemption","public safety"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Locations of surface water drainage infrastructure","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-94532/","full_text":"--- PAGE 1 ---\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 21, 2026\n\nPUBLIC ACCESS OPINION 26-009\n(Request for Review 2026 PAC 94532)\n\nFREEDOM OF INFORMATION ACT:\nRecords Detailing the Locations of Surface\nWater Drainage Infrastructure Are Exempt\nFrom Disclosure under Section 7(1)(x)\n\nMr. Daniel Beaudin\n5804 North Mason Avenue, 1N\nChicago, Illinois 60646\n\nMr. Daniel Riordan\nFreedom of Information Officer\nCity of Chicago\nDepartment of Water Management\nChicago, Illinois 60639\n\nDear Mr. Beaudin and Mr. Riordan:\n\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2025 Supp.)). For the\nreasons discussed below, this office concludes that the City of Chicago (City) Department of\nWater Management (Department) did not violate FOIA by denying Mr. Daniel Beaudin's May\n15, 2026, FOIA request.\n\nBACKGROUND\n\nOn that date, Mr. Beaudin submitted a FOIA request to the Department seeking\nthe following for a specified area of the City:\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttorneyGeneral.gov\n\n--- PAGE 2 ---\n\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 2\n\nSewer and Flood Control Atlas records, GIS mapping data,\nengineering schematics, or equivalent localized maps detailing the\nexact locations of all surface water drainage infrastructure.\nThis specifically includes all catch basins, storm drains (spanning\nstandard 24-inch / 60.96-centimeter grates up to any oversized curb\ninlets), and the connecting local sewer laterals.[1] (Emphasis\nadded.)\n\nOn May 19, 2026, the Department denied the request in its entirety pursuant to section 7(1)(x) of\nFOIA (5 ILCS 140/7(1)(x) (West 2025 Supp.)).2 On that same date, Mr. Beaudin submitted the\nabove-referenced Request for Review contesting the denial.\n\nOn June 26, 2026, the Public Access Bureau sent a copy of the Request for\nReview to the Department.3 Along with a copy of the Request for Review, the Public Access\nBureau sent the Department a letter requesting unredacted copies of the withheld records for this\noffice's confidential review, and a detailed written explanation of the legal and factual bases for\nthe asserted exemption.4\n\nOn July 9, 2026, the Department provided this office with the records and its\nwritten response.5 On the same date, this office forwarded a copy of the Department's answer to\nMr. Beaudin and notified him of his opportunity to reply.6 On July 10, 2026, Mr. Beaudin\nreplied.7\n\n____________________\n1E-mail from Daniel W[.] Beaudin to FOIA Officer, [City of Chicago Department of Water\nManagement] (May 15, 2026).\n\n2Letter from Daniel Riordan, Freedom of Information Office, Department of Water Management,\nto Daniel Beaudin (May 19, 2026).\n\n3E-mail from Benajmin Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois\nAttorney General, to [Daniel] Riordan, [Freedom of Information Officer, City of Chicago, Department of Water\nManagement] (June 26, 2026).\n\n4Letter from Benajmin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Daniel Riordan, Freedom of Information Officer, City of Chicago, Department of Water\nManagement (June 26, 2026), at 2.\n\n5E-mail from DWMFOIA@cityofchicago.org to [Benjamin] Silver, [Supervising Attorney, Public\nAccess Bureau, Office of the Attorney General] (July 9, 2026).\n\n6Letter from Benajmin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Daniel Beaudin (July 9, 2026).\n\n7E-mail from Daniel W. Beaudin to Supervising Attorney [Benjamin] Silver, [Public Access\nBureau, Office of the Attorney General] (July 10, 2026).\n\nOffice of the Illinois Attorney General\n\n--- PAGE 3 ---\n\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 3\n\nOn July 15, 2026, this office extended the time for issuing a binding opinion by\n30 business days, to August 28, 2026, pursuant to section 9.5(f) of FOIA.8\n\nANALYSIS\n\nIt is the public policy of the State of Illinois that \"that all persons are entitled to\nfull and complete information regarding the affairs of government and the official acts and\npolicies of those who represent them as public officials and public employees consistent with the\nterms of\" FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or\npossession of a public body are presumed to be open to inspection or copying. Any public body\nthat asserts that a record is exempt from disclosure has the burden of proving by clear and\nconvincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024).\n\nSection 7(1)(x) of FOIA exempts from disclosure \"[m]aps and other records\nregarding the location or security of generation, transmission, distribution, storage, gathering,\ntreatment, or switching facilities owned by a utility, by a power generator, or by the Illinois\nPower Agency.\" (Emphasis added.)\n\nNo reviewing court has construed the section 7(1)(x) exemption. In construing a\nstatute, the primary objective is to ascertain and give effect to the intent of the General\nAssembly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415\n(2006). \"[T]he surest and most reliable indicator of\" legislative intent \"is the statutory language\nitself, given its plain and ordinary meaning.\" Board of Education of Springfield School District\nNo. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶ 24. It is appropriate to use a\ndictionary to ascertain the plain and ordinary meaning of terms that are undefined by a statute.\nPeople v. Davison, 233 Ill. 2d 30, 40 (2009).\n\nThe plain language of section 7(1)(x) exempts, among other things, maps and\nother records regarding the location of gathering facilities owned by a utility. A \"utility\" is\ndefined as \"a) something useful to the public, esp. the service of electric power, gas, water,\ntelephone etc. b) a company providing such a service[.]\"9 The Department is an infrastructure\n\n____________________\n8Letter from Benajmin J. Silver, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Daniel Beaudin and Daniel Riordan, Freedom of Information Officer, City of Chicago,\nDepartment of Water Management (July 15, 2026).\n\n9Webster's New World Dictionary 1565 (2d coll. ed. 1978).\n\nOffice of the Illinois Attorney General\n\n--- PAGE 4 ---\n\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 4\n\ndepartment of the City10 that purifies drinking water and maintains infrastructure to deliver\ndrinking water to homes and businesses of Chicago and 120 suburban communities and transmit\nstormwater and wastewater for treatment and recycling.11 Therefore, the Department is a\n\"utility.\"\n\nA \"facility\" is defined as \"a special room, etc. that facilitates or makes possible\nsome activity[.]\"12 As the City's public water and sewer utility, the Department maintains and\noperates a system of sewers and mains that collects the City's stormwater and transmits it to the\nMetropolitan Water Reclamation District of Greater Chicago for treatment.13 This system and its\nparts, including the surface water drainage infrastructure, makes it easier for the Department to\nfacilitate the gathering and transmission of stormwater. Accordingly, the Department's surface\nwater drainage infrastructure constitutes gathering facilities of a utility under the plain language\nof the section 7(1)(x) exemption.\n\nThe Department's letter denying Mr. Beaudin's request stated that section 7(1)(x)\nis applicable because release of the requested records \"would disclose the location and security\nof these utilities.\"14 (Emphasis added.) In its response to this office, the Department reiterated\nthat the responsive records plainly are exempt from disclosure in their entireties under section\n7(1)(x) of FOIA because \"Mr. Beaudin's request seeks the 'exact locations of all surface water\ndrainage infrastructure.'\"15 The Department further asserted that disclosure of the records would\n\n____________________\n10City of Chicago, Department of Water Management, Our Structure,\nhttps://www.chicago.gov/city/en/depts/water/auto_generated/water_our_structure.html (last visited August 12,\n2026). Section 11-117-1 of the Municipal Code (65 ILCS 5/11-117-1 (West 2024)) authorizes \"any municipality\" to\n\"acquire, construct, own and operate within the corporate limits of the municipality any public utility the product or\nservice of which, or a major portion thereof, is or is to be supplied to the municipality or its inhabitants and may\ncontract for, purchase and sell the product or service of any such utility[.]\"\n\n11City of Chicago, Department of Water Management, What We Do,\nhttps://www.chicago.gov/city/en/depts/water/supp_info/what-we-do.html (last visited August 10, 2026).\n\n12Webster's New World Dictionary 501 (2d coll. ed. 1978).\n\n13City of Chicago, Water Management, What We Do,\nhttps://www.chicago.gov/city/en/depts/water/supp_info/what-we-do.html (last visited August 10, 2026).\n\n14Letter from Daniel Riordan, Freedom of Information Office, City of Chicago, Department of\nWater Management, to Daniel Beaudin (May 19, 2026).\n\n15Letter from Daniel Riordan, Department of Water Management, Freedom of Information Office,\nto Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General (July 9,\n2026), at [2], quoting e-mail from Daniel Beaudin to FOIA Officer, [City of Chicago Department of Water\nManagement] (May 15, 2026).\n\nOffice of the Illinois Attorney General\n--- PAGE 5 ---\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 5\n\npresent a security risk to the utilities.16\n\nIn his Request for Review, Mr. Beaudin argued that, because storm drains and\ncatch basins are visible to the public, \"[t]he assertion that confirming the existence and location\nof a storm drain on a public commercial street poses a 'security threat' is completely\nunfounded.\"17 In his reply to the Department's response, Mr. Beaudin stated that the City's\nDepartment of Technology and Innovation hosts and promotes a Geographic Information System\n(GIS) portal through which members of the public can access location data on various subjects.18\nHe argued that the Department's \"attempt to frame standard municipal GIS mapping of surface\ndrains as a classified security risk is directly contradicted by the City's own technology\npolicies.\"19\n\nHowever, to uphold its denial of Mr. Beaudin's request under section 7(1)(x), the\nDepartment is not required to demonstrate that the requested records concern the security of the\nsystem. Where the language of a statute is clear and unambiguous, a reviewing body \"may not\ndepart from the plain language by reading into the statute exceptions, limitations, or conditions\nthat the legislature did not express.\" Hayashi v. Illinois Department of Financial & Professional\nRegulation, 2014 IL 116023, ¶ 16. \"The word 'or' is disjunctive. As used in its ordinary sense,\nthe word 'or' marks an alternative indicating the various parts of the sentence which it connects\nare to be taken separately. * * * Disjunctive therefore connotes two different alternatives.\"\nElementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006). In contrast, \"principles\nof statutory construction interpret the term 'and' as conjunctive rather than disjunctive.\" Soh v.\nTarget Marketing Systems, 353 Ill. App. 3d 126, 131 (2004). \"[U]se of the word 'and' between\ntwo statutory elements generally indicates that both of the elements must be satisfied in order to\ncomply with the statute.\" County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593,\n606 (2008).\n\nThe plain language of section 7(1)(x) exempts from disclosure \"records regarding\nthe location or security of generation, transmission, distribution, storage, gathering, treatment, or\nswitching facilities owned by a utility.\" (Emphasis added.) Mr. Beaudin reads section 7(1)(x) in\nthe conjunctive, as exempting only records that regard both the location and security of facilities\n\n16Letter from Daniel Riordan, Department of Water Management, Freedom of Information Office,\nto Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General (July 9,\n2026), at [2].\n\n17E-mail from Daniel Beaudin to Public Access Counselor, [Office of the Illinois Attorney\nGeneral] (May 19, 2026).\n\n18E-mail from Daniel Beaudin to Supervising Attorney [Benjamin] Silver, [Public Access Bureau,\nOffice of the Attorney General] (July 10, 2026).\n\n19E-mail from Daniel Beaudin to Supervising Attorney [Benjamin] Silver, [Public Access Bureau,\nOffice of the Attorney General] (July 10, 2026).\n\nOffice of the Illinois Attorney General\n\n--- PAGE 6 ---\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 6\n\nowned by a utility, with the additional element that disclosure of the records would jeopardize\nthe security of the facilities. Because section 7(1)(x) is worded disjunctively, however, it\nprovides two independent bases for claiming the exemption: (1) the requested records regard the\nlocation of facilities owned by a utility or (2) the requested records regard the security of\nfacilities owned by a utility. Concluding that records regarding the location of facilities owned\nby utilities are not exempt from disclosure under section 7(1)(x) unless the records also pertain to\nsecurity and are likely to jeopardize the security of facilities, if disclosed, would read non-\nexistent conditions into the exemption.\n\nIt also is notable that when an earlier version of section 7(1)(x) first was enacted\nas part of Public Act 93-0422, effective August 5, 2003, the General Assembly added another\nFOIA exemption that applied to:\n\nVulnerability assessments, security measures, and response\npolicies or plans that are designed to identify, prevent, or respond\nto potential attacks upon a community's population or systems,\nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of\nthe measures or the safety of the personnel who implement\nthem or the public.20 (Emphasis added.)\n\nThe General Assembly did not include any corresponding language on jeopardizing security to\nsimilarly limit the scope of section 7(1)(x). If the General Assembly had intended for section\n7(1)(x) to exempt records only when a public body could demonstrate a likelihood that\ndisclosure would pose a security risk, it would have done so expressly. It did not. Accordingly,\na public body is not required to claim or prove that disclosure of records would pose a security\nrisk in order to prove that records are exempt from disclosure pursuant to section 7(1)(x) of\nFOIA.\n\nMr. Beaudin's May 15, 2026, FOIA request explicitly sought records \"detailing\nthe exact locations of all surface water drainage infrastructure.\"21 This office has reviewed the\n\n205 ILCS 140/7(1)(ll) (West 2002), as amended by Public Acts 92-645, effective July 11, 2002;\n92-651, effective July 11, 2002; 93-0422, effective August 5, 2003). Public Act 93-0422 also amended section\n7(1)(k) of FOIA (5 ILCS (1)(k) (West 2002), as amended by Public Acts 92-645, effective July 11, 2002; 92-651,\neffective July 11, 2002; 93-0422, effective August 5, 2003), which then exempted: \"Architects' plans, engineers'\ntechnical submissions, and other construction related technical documents for projects not constructed or developed\nin whole or in part with public funds and the same for projects constructed or developed with public funds, but only\nto the extent that disclosure would compromise security.\" (Emphasis added.)\n\n21E-mail from Daniel Beaudin to FOIA Officer, [City of Chicago Department of Water\nManagement] (May 15, 2026).\n\nOffice of the Illinois Attorney General\n\n--- PAGE 7 ---\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 7\n\nwithheld records and confirmed that they consist of atlases—detailed maps showing the locations\nof sewers, storm mains, access points, and various other details of the City's water infrastructure\n—and GIS mapping data. Maps and geographic data detailing the locations of stormwater\ngathering facilities fall squarely within the types of records specified in section 7(1)(x).\nAccordingly, the Department did not violate FOIA by denying Mr. Beaudin's May 15, 2026,\nFOIA request.\n\nFINDINGS AND CONCLUSIONS\n\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n\n1) On May 15, 2026, Mr. Daniel Beaudin submitted a FOIA request to the City\nof Chicago Department of Water Management seeking copies of records \"detailing the exact\nlocations of all surface water drainage infrastructure\" for a specified area of the City.\n\n2) On May 19, 2026, the Department denied the request pursuant to section\n7(1)(x) of FOIA.\n\n3) On that same date, Mr. Beaudin submitted a Request for Review contesting the\nDepartment's denial. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2025 Supp.)).\n\n4) On June 26, 2026, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Department and asked it to provide unredacted copies of the contested records\nfor this office's confidential review, together with a written explanation of the factual and legal\nbasis for the applicability of section 7(1)(x).\n\n5) On July 9, 2026, the Department provided this office with unredacted copies\nof the withheld records and its written explanation. On the same date, the Public Access Bureau\nforwarded a copy of that answer to Mr. Beaudin and notified him of his opportunity to reply. On\nJuly 10, 2026, Mr. Beaudin replied.\n\n6) On July 15, 2026, the Public Access Bureau extended the time within which to\nissue a binding opinion by 30 business days, to August 28, 2026, pursuant to section 9.5(f) of\nFOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n\n7) Section 7(1)(x) of FOIA exempts from disclosure \"[m]aps and other records\nregarding the location or security of generation, transmission, distribution, storage, gathering,\ntreatment, or switching facilities owned by a utility, by a power generator, or by the Illinois\nPower Agency.\"\n\nOffice of the Illinois Attorney General\n\n--- PAGE 8 ---\nMr. Daniel Beaudin\nMr. Daniel Riordan\nAugust 21, 2026\nPage 8\n\n8) The Department is a public utility that purifies drinking water and gathers and\ntransmits stormwater for treatment and recycling. Therefore, the Department's surface water\ndrainage infrastructure constitutes gathering facilities owned by a utility.\n\n9) The plain language of section 7(1)(x) permits a public body to withhold\nrecords that regard (1) the location of certain facilities, including gathering facilities, owned by a\nutility, or (2) the security of those facilities. A public body that withholds records pursuant to\nsection 7(1)(x) is not required to prove that records regarding the location of gathering facilities\npertain to the security of those facilities or would jeopardize security if disclosed.\n\n10) Because the withheld records detail the locations of stormwater gathering\nfacilities owned by a utility, the Department sustained its burden of proving by clear and\nconvincing evidence that the records are exempt from disclosure pursuant to section 7(1)(x).\n\nTherefore, it is the opinion of the Attorney General that the City of Chicago\nDepartment of Water Management did not violate the requirements of FOIA by denying Mr.\nDaniel Beaudin's Freedom of Information Act request.\n\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and the City\nof Chicago Department of Water Management as defendants. See 5 ILCS 140/11.5 (West 2024).\n\nSincerely,\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nBy:\nR. Douglas Rees\nChief Deputy Attorney General\n\nOffice of the Illinois Attorney General\n--- PAGE 9 ---\n\nCERTIFICATE OF SERVICE\n\nLeah Bartelt, Public Access Counselor, Public Access Bureau, hereby certifies\nthat she has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-009)\nupon:\n\nMr. Daniel Beaudin\n5804 North Mason Avenue, IN\nChicago, Illinois 60646\nDbeaudin29@gmail.com\n\nMr. Daniel Riordan\nFreedom of Information Office\nCity of Chicago\nDepartment of Water Management\nChicago, Illinois 60639\nDWMfoia@cityofchicago.org\n\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on August 21, 2026.\n\nLeah Bartelt\nPublic Access Counselor\nOffice of the Attorney General\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-6437\n\n[Signature]\nLeah Bartelt\nPublic Access Counselor"}
{"id":1486,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-08-26","case_number":"2026 PAC 94563","request_numbers":["94563"],"title":"Chicago Department of Law improperly withheld third-party communications under Section 7(1)(c)","filename":"PUBLIC ACCESS OPINION 26-010 (Request for Review 2026 PAC 94563).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-010 (Request for Review 2026 PAC 94563).pdf","word_count":2868,"summary":"Tim Novak of the Chicago Sun-Times requested correspondence between former City COO Paul Goodrich and Robert Blackwell Jr. of EKI-Digital regarding contracts. The City withheld the records, claiming attorney-client privilege, but the PAC found the communications were not privileged because they were exchanged with a third party before being sent to an attorney.","plain_summary":"A reporter asked for emails between a former city official and a contractor. The city refused, saying the emails were private lawyer-client talks. The Attorney General said no, because the emails were with an outside person first, so they must be released.","holding":"The City of Chicago Department of Law improperly withheld records responsive to Mr. Novak's FOIA request because the communications were not protected by attorney-client privilege.","legal_question":"Whether communications exchanged with a third party and subsequently sent to an attorney are protected by the attorney-client privilege under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Law","requesting_party":"Tim Novak (Chicago Sun-Times)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"attorney-client privilege","subject_description":"Correspondence between a former city official and a contractor regarding contracts, later forwarded to an attorney.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-010.pdf","sha256":"d4ca56977e430f9dcda93b0880f0d97a925a00ff9ed5761ccadc5f8ee318aa25","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 0 time(s), clean","faq_tags":["attorney-client privilege","FOIA request","city contracts","third-party communications","Chicago Sun-Times"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A former official's correspondence with a contractor forwarded to an attorney","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-94563/","full_text":"OFFICE OF THE ATTORNEY GENERAL\r\nSTATE OF ILLINOIS\r\n\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\n\r\nAugust 26, 2026\r\n\r\nPUBLIC ACCESS OPINION 26-010\r\n(Request for Review 2026 PAC 94563)\r\nFREEDOM OF INFORMATION ACT:\r\nWithholding Communications Exchanged with\r\nThird Party and Subsequently Sent to Attorney\r\nMr. Tim Novak\r\nChicago Sun-Times\r\n848 East Grand Avenue\r\nChicago, Illinois 60611\r\nMs. Lexie Heinemann\r\nPublic Relations Representative\r\nCity of Chicago Department of Law\r\n121 North LaSalle Street, Room 600\r\nChicago, Illinois 60602\r\nDear Mr. Novak and Ms. Heinemann:\r\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\r\nof the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2025 Supp.)). For the\r\nreasons discussed below, this office concludes that the City of Chicago (City) Department of\r\nLaw (Department) improperly withheld records responsive to Mr. Tim Novak's April 20, 2026,\r\nFOIA request.\r\nOn April 20, 2026, Mr. Novak, on behalf of the Chicago Sun-Times, submitted a\r\nFOIA request to the Department and other City entities requesting copies of correspondence\r\nbetween the City's former Chief Operating Officer, Paul Goodrich, \"and Robert Blackwell, Jr. of\r\nEKI-Digital, Electronic Knowledge Interchange and Killer Spin[]\" between June 1, 2021, and\r\nMay 31, 2023. Specifically, Mr. Novak sought any documents \"involving contracts, work\r\n500 South 2nd Street\r\nSpringfield, Illinois 6270 I\r\n(217) 782-1090 • Fax: (217) 782-7046\r\n\r\n11 5 South LaSa lle Street\r\nChicago, Illinois 60603\r\n(3 12) 8 14-3000 • Fax: (312) 8 14-3806\r\n\r\n1745 Innovation Drive, Suite C\r\nCarbondale, Illinoi s 62903\r\n(6 I 8) 529-6400 • Fax: (6 I 8) 529-64 I 6\r\n\r\nIndividuals with hearing or speech disabilities can reac h us by using the 7- 1-1 re lay service.\r\nwww. IIIi noi sAttomeyGeneral .gov\r\n\r\n.. .... , ., 400S\r\n\r\n•~·•••n':::\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 2\r\nagreements, invoices involving Blackwell and/or his companies.\" 1 On May 8, 2026, the\r\nDepartment notified Mr. Novak that additional time was required to complete its search for and\r\nassessment of potentially responsive records. 2 On May 14, 2026, the Department further advised\r\nMr. Novak that a document had been located and was undergoing an internal assessment to\r\ndetermine its responsiveness. 3 On May 20, 2026, the Department denied Mr. Novak's request\r\npursuant to section 7(1)(m) of FOIA, 4 stating that the withheld records constituted privileged\r\ncommunications between an attorney and clients. 5 On May 21, 2026, Mr. Novak submitted the\r\nabove-referenced Request for Review disputing that denial; he argued that the Department \"has\r\nprovided no documentation to specify the name of the attorney and the attorney's clients, and\r\nwhy this information needs to be withheld from the taxpayers.\" 6\r\nOn June 18, 2026, this office forwarded a copy of the Request for Review to the\r\nDepartment,7 along with a letter asking it to provide for this office's confidential review\r\nunredacted copies of the records that were withheld and a detailed explanation of the legal and\r\nfactual bases for the applicability of the section 7(1 )(m) exemption.8 On July 23, 2026, this\r\noffice sent the Department a second request for a written response and the records responsive to\r\n\r\n1\r\nE-mail from Tim Novak, Reporter, Chicago Sun-Times, to Freedom of Information Officers,\r\nOffice of the Mayor, Department of Procurement Services, Department of Law, City of Chicago (April 20, 2026).\r\n2\r\n\r\nE-mail from Lexie Heinemann, Public Relations Representative, Administration, City of Chicago\r\nDepartment of Law, to troberts@suntimes.com and tnovak@s untimes .com (May 8, 2026).\r\n3\r\n\r\nE-mail from Lexie Heinemann , Public Relations Representative, Administration, City of Chicago\r\nDepartment of Law, to troberts@suntimes.com and tnovak@suntim es.com (May I 4, 2026).\r\n4\r\n\r\n5 ILCS 140/7( 1)(m) (West 2025 Supp.).\r\n\r\n5\r\n\r\nFOIA portal message from Lexie Heinemann , Public Relations Representative, Department of\r\nLaw, [City of Chicago], to Tim Novak (May 20, 2026).\r\n6\r\nE-mail from Tim Novak, Reporter, Chicago Sun-Times, to Public Access Counselor, Office of\r\nthe Attorney General, State of Illinoi s (May 21 , 2026).\r\n7\r\n\r\nE-mail from Michael G. Malik, Assistant Attorney General, Public Access Bureau, Office of the\r\nIllinoi s Attorney General , to [Lexie] Heinem ann , [Public Relations Representative, Department of Law, City of\r\nChicago] (June 18 , 2026).\r\n8\r\n\r\nLetter from Michael G. Malik, Assistant Attorney General , Public Access Bureau, Office of the\r\nAttorney General, to Lexie Heinemann , Public Relations Representative, City of Chicago Department of Law (June\r\n18, 2026).\r\n\r\nOffice of the Tllinoi s Attorney Genera l\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 3\r\nMr. Novak's request. 9 On July 29, 2026, the Department provided this office with those\r\nmaterials. 10 On July 29, 2026, this office forwarded a copy of the Department's written response\r\nto Mr. Novak and notified him of his opportunity to reply. 11 On the same day, Mr. Novak\r\nreplied. 12\r\nOn July 30, 2026, this office extended the time for issuing a binding opinion by\r\n30 business days, to September 21, 2026, pursuant to section 9.5(±) of FOIA. 13\r\nANALYSIS\r\n\"All records in the custody or possession of a public body are presumed to be\r\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2024); see also Southern Illinoisan v.\r\nIllinois Department of Public Health , 218 Ill. 2d 390, 415 (2006). A public body that withholds\r\nor redacts records \"has the burden of proving by clear and convincing evidence\" that the\r\ninformation is exempt from disclosure. 5 ILCS 140/1.2 (West 2024). The exemptions from\r\ndisclosure are to be narrowly construed. Lieber v. Board o_[Trustees of Southern Illinois\r\nUniversity, 176 Ill. 2d 401,407 (1997).\r\nSections 7(1)(m) of FOIA\r\nSection 7(1 )( m) of FO IA exempts from disclosure:\r\nCommunications between a public body and an attorney\r\n* * * representing the public body that would not be subject to\r\ndiscovery in litigation, and materials prepared or compiled by or\r\nfor a public body in anticipation of a criminal, civil, or\r\n\r\n9\r\n\r\nE-mail from Michael G. Malik, Assistant Attorney General, Public Access Bureau, Office of the\r\nIll inois Attorney General , to [Lexie] Heinemann , [Public Relations Representative, Department of Law, City of\r\nChicago] (July 23, 2026).\r\n10\r\nE-mail from Lexie Heinemann , Public Relation s Representative, Administration , City of\r\nChicago Department of Law, to Michael Malik (July 29, 2026).\r\n11\r\n\r\nLetter from Michael G. Malik, Assi stant Attorney General, Public Access Bureau, Office of the\r\nAttorney General , to Tim Novak, Chicago Sun-Times (July 29, 2026).\r\n12\r\n\r\nE-m ail from Tim Novak, Reporter, Chicago Sun-Times, to [Michael] Malik (July 29, 2026).\r\n\r\n13\r\nLetter from Michael G. Malik, Assistant Attorney Genera l, Public Access Bureau, Office of the\r\nAttorney General, to Ms . Lexie Heinemann , Public Relations Representative, City of Chicago Department of Law,\r\nand Tim Novak, Chicago Sun-Times (July 30, 2026).\r\n\r\nOffice of the fllinoi s Atto rn ey General\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 4\r\nadministrative proceeding upon the request of an attorney advising\r\nthe public body[.] (Emphasis added.)\r\nSection 7(1)(m) exempts communications protected by the attorney-client privilege. People ex\r\nrel. Ulrich v. Stukel, 294 Ill. App. 3d 193,201 (1997). A party asserting that a confidential\r\ncommunication is protected by attorney-client privilege must show that \"(1) a statement\r\noriginated in confidence that it would not be disclosed; (2) it was made to an attorney acting in\r\nhis legal capacity for the purpose of securing legal advice or services; and (3) it remained\r\nconfidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225 , 228 (2006). \"[T]he modern view is\r\nthat the privilege is a two-way street, protecting both the client's communications to the attorney\r\nand the attorney's advice to the client.\" People v. Radojcic, 2013 IL 114197, ,r 40. The Illinois\r\nSupreme Court has explained that a public body that withholds records pursuant to section\r\n7(1 )(m) \"can meet its burden only by providing some objective indicia that the exemption is\r\napplicable under the circumstances.\" (Emphasis in original.) Illinois Education Ass'n v. Illinois\r\nState Board of Education, 204 Ill. 2d 456,470 (2003).\r\nThe records Mr. Novak requested are messages and documents exchanged\r\nbetween EKI-Digital Chairman Robert Blackwell, Jr. , and the City's then-Chief Operating\r\nOfficer, Paul Goodrich, involving contracts with Blackwell or his companies. The Department's\r\nresponse to this office stated that those records were subsequently \"received by an attorney for\r\nthe City from a client-department as part of the client's seeking legal guidance. * * * Because\r\nthese documents came into possession of an attorney from a client, they are protected by the\r\nattorney-client privilege and so [are] exempt from disclosure under section 7(1)(m).\" 14 In his\r\nreply, Mr. Novak characterized the City's response as \"puzzling, considering these negotiations\r\nled the city to pay $600,000 to settle $9.6 million in claims filed by Robert Blackwell Jr. and\r\nEKI [Digital].\" 15\r\nIn Johnson v. Frontier Ford, Inc., 68 Ill. App. 3d 315, 317 (1979), the Illinois\r\nAppellate Court addressed whether the attorney-client privilege protects pre-existing documents\r\nforwarded by a client to their attorney in connection with a request for legal advice. The court\r\nquoted with approval a treatise that reasoned such records are not protected unless the privilege\r\notherwise applied before the attorney obtained them:\r\n\r\n14\r\n\r\nLetter from Lexie Heinemann, FOIA Officer, Department of Law, [City of Chicago], to Michael\r\nMalik, Assistant Attorney General , Public Access Bureau, Office of the Illinois Attorney General (July 29, 2026), at\r\n[3] .\r\n15\r\n\r\nE-mail from Tim Novak, Reporter, Chicago Sun-Times, to [Michael] Malik (July 29, 2026).\r\n\r\nOffice of the Tllinoi s Attorney Genera l\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 5\r\n\r\n[A}dding to the privilege for communications a privilege against\r\nproduction of the pre-existing documents themselves, when they\r\nwould be subject to production if still in the possession of the\r\nclient, would be an intolerable obstruction to justice. To prevent\r\nthe court's gaining access to a relevant document a party would\r\nonly have to send it to his lawyer. So here the principle is\r\ncontrolling: if a document would be subject to an order for\r\nproduction if it were in the hands of the client it will be equally\r\nsubject to such an order if it is in the hands of his attorney.\r\n(Emphasis in original.). Johnson , 68 Ill. App. 3d at 320 (quoting\r\nMcCormick, Evidence § 89, at 184-85 (2d ed. 1972)).\r\nApplying that principle, the court affirmed a contempt of court finding against an attorney\r\ninvolved in a discovery dispute who refused to submit to the court, for in camera review, an\r\ninvestigative file he received from his client. Johnson , 68 Ill. App. 3d at 321; see also Heriot v.\r\nByrne, 257 F.R.D. 645, 656 (N.D. Ill. 2009) (the attorney-client privilege does not encompass\r\nmessages that were exchanged with unprotected third parties and then forwarded to a client's\r\nattorney); Burns v. Georgetown University Medical Center, 106 F. Supp. 3d 238,243 (D.D.C.\r\n2015) (\" [T]he email exchange is not privileged simply because the email was sent from\r\nPlaintiffs attorney to Plaintiff. Just because Plaintiffs attorney forwarded the email to her does\r\nnot make the communication, which originated from a third-party, privileged.\").\r\nAt the time they originated, the records at issue were not sent to an attorney for\r\nthe purpose of securing legal advice or services or sent from an attorney providing legal advice.\r\nInstead, they were exchanged by the City's Chief Operating Officer and a third-party contractor\r\nfor the City. Although the City states that a City attorney subsequently obtained the records\r\nfrom a client, the act of forwarding pre-existing records exchanged with a third-party to counsel\r\nwhile seeking legal advice does not transform those records into privileged attorney-client\r\ncommunications. Mr. Novak did not request communications exchanged between the client and\r\nany City attorneys who obtained the third-party communications; therefore, the only records\r\nresponsive to the request and provided for this office's review do not reveal the substance of any\r\nrequests for legal advice that may have been communicated by the client or any legal advice\r\nrendered by attorneys to that client. Because the withheld records did not originate in confidence\r\nbetween parties engaged in an attorney-client relationship and were not exchanged for the\r\npurpose of securing or providing legal advice, this office concludes that the Department has not\r\nsustained its burden of demonstrating that the records are exempt from disclosure pursuant to\r\nsection 7(1)(m) of FOIA.\r\n\r\nOffice of the Tlli nois Attorney Genera l\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 6\r\nFINDINGS AND CONCLUSIONS\r\nAfter full examination and giving due consideration to the information submitted,\r\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\r\n1) On April 20, 2026, Mr. Tim Novak, on behalf of the Chicago Sun-Times,\r\nsubmitted a FOIA request to the City of Chicago Department of Law (Department) seeking\r\ncopies of correspondence between former City Chief Operating Officer Paul Goodrich and a city\r\ncontractor, Robert Blackwell, Jr., between June 1, 2021 , and May 31, 2023.\r\n2) On May 20, 2026, the Department denied Mr. Novak's request in its entirety\r\npursuant to section 7(1)(m) of FOIA.\r\n3) On May 21, 2026, Mr. Novak submitted the above-referenced Request for\r\nReview contesting the Department's denial ofrecords responsive to his request.\r\n4) On June 18, 2026, the Public Access Bureau sent a copy of the Request for\r\nReview to the Department and asked it to provide umedacted copies of the contested\r\ncorrespondence for this office's confidential review. This office also asked the Department to\r\nprovide a detailed explanation of the factual and legal bases for denying those records.\r\n5) On July 29, 2026, the City of Chicago Department of Law furnished the\r\nrequested materials to this office.\r\n6) On July 29, 2026, the Public Access Bureau forwarded a copy of the\r\nDepartment's written answer to Mr. Novak and notified him of his right to reply.\r\n7) On July 29, 2026, Mr. Novak replied.\r\n8) On July 30, 2026, the Public Access Bureau extended the time within which to\r\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the\r\nAttorney General may properly issue a binding opinion with respect to this matter.\r\n9) Section 7(1)(m) of FOIA exempts from disclosure \"[c]ommunications\r\nbetween a public body and an attorney or auditor representing the public body that would not be\r\nsubject to discovery in litigation, and materials prepared or compiled by or for a public body in\r\nanticipation of a criminal, civil, or administrative proceeding upon the request of an attorney\r\nadvising the public body, and materials prepared or compiled with respect to internal audits of\r\npublic bodies.\"\r\n\r\nOffice of th e Tlli no is Attorn ey Genera l\r\n\r\n\fMr. Tim Novak\r\nMs. Lexie Heinemann\r\nAugust 26, 2026\r\nPage 7\r\n10) The records at issue in this Request for Review consist of e-mails and related\r\nrecords exchanged by a City official and a contractor for the City. These communications did\r\nnot originate in confidence between parties engaged in an attorney-client relationship, and they\r\nwere not exchanged for the purpose of providing or securing legal advice or services.\r\n11) The City asserts that a client subsequently sent these records to an\r\nattorney for the City for the purpose of securing legal advice. However, sending an attorney\r\ncommunications exchanged by a City employee and a third-party contractor for the City does not\r\ntransform those records into privileged attorney-client communications.\r\nAccordingly, this office concludes that the Department has not met its burden of\r\nproving that the communications are exempt from disclosure pursuant to section 7(1)(m) of\r\nFOIA. Therefore, it is the opinion of the Attorney General that the City of Chicago Department\r\nof Law improperly withheld the records responsive to Mr. Tim Novak's April 20, 2026, Freedom\r\noflnformation Act request. Accordingly, the Department is hereby directed to take immediate\r\nand appropriate action to comply with this opinion by providing Mr. Novak with unredacted\r\ncopies of the withheld records.\r\nThis opinion shall be considered a final decision of an administrative agency for\r\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\r\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\r\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\r\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Tim Novak\r\nas defendants. See 5 ILCS 140/11.5 (West 2024).\r\nSincerely,\r\n\r\nKWAMERAOUL\r\nATTORNEY GENERAL\r\nBy:\r\n\r\n~\r\n\r\nR. Douglas Rees\r\nChief Deputy Attorney General\r\n\r\nOffice of the fll inoi s Attorney General\r\n\r\n\fCERTIFICATE OF SERVICE\r\n\r\nJoshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies\r\nthat he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-010)\r\nupon:\r\nMr. Tim Novak\r\nChicago Sun-Times\r\n848 East Grand Avenue\r\nChicago, Illinois 60611\r\ntnovak@suntimes.com\r\nMs. Lexie Heinemann\r\nPublic Relations Representative\r\nCity of Chicago Department of Law\r\n121 North LaSalle Street, Room 600\r\nChicago, Illinois 60602\r\nLA WFOIA@cityofchicago.org\r\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\r\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\r\ndeposited in the United States mail at Chicago, Illinois on August 26, 2026.\r\n\r\nureau Chief\r\nJoshua M. Jones\r\nBureau Chief\r\nPublic Access Bureau, Chicago\r\nOffice of the Attorney General\r\n115 South LaSalle Street\r\nChicago, Illinois 60603\r\n(312) 814-8413\r\n\r\n\f"}
{"id":1487,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-09-30","case_number":"2026 PAC 95139","request_numbers":["95139"],"title":"Madison County Sheriff's Office violated FOIA by withholding restraint chair incident reports","filename":"PUBLIC ACCESS OPINION 26-011 (Request for Review 2026 PAC 95139).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-011 (Request for Review 2026 PAC 95139).pdf","word_count":6649,"summary":"The requester sought incident reports regarding the use of restraint chairs at Madison County Jail. The PAC determined that the Sheriff's Office improperly withheld the records, as they are not exempt under FOIA Sections 7(1)(b), 7(1)(c), or 7(1)(b-5).","plain_summary":"A public body must prove by clear and convincing evidence that an exemption applies, and exemptions are read narrowly. The sheriff's office denied a request for incident reports about restraint-chair use at the jail in its entirety under the private-information exemption (7(1)(b)) and the personal-privacy exemption (7(1)(c)), then added 7(1)(b-5), which covers law enforcement databases specifically designed to inform officers of a person's physical or mental status. The PAC held that discrete items such as detainees' names could be redacted, which the requester did not dispute, but that the reports as a whole are not records designed to convey a person's physical or mental condition, so the office could not withhold them entirely and had to release them with only the proper redactions.","holding":"The Madison County Sheriff's Office violated FOIA by improperly denying the request for incident reports on restraint chair use.","legal_question":"Whether incident reports concerning the use of restraint chairs at a county jail are exempt from disclosure under FOIA Sections 7(1)(b), 7(1)(c), or 7(1)(b-5).","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(b)","5 ILCS 140/7(1)(c)","5 ILCS 140/7(1)(b-5)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(b-5)"],"public_body":"Madison County Sheriff's Office","requesting_party":"Grace Hauck","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Incident reports regarding the use of restraint chairs at Madison County Jail.","ocr_status":"ok","ocr_quality":null,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding Opinion 26-011.pdf","sha256":"4406742b503869f4864323a8793e320a2bbfba60392a49f20d80f764cfe61ae7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["restraint chair","jail incident report","FOIA exemption 7(1)(b)","FOIA exemption 7(1)(c)","FOIA exemption 7(1)(b-5)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Incident reports on restraint chair use at a county jail","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-95139/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTO RNEY GENE RA L\n\nSeptember 30, 2026\n\nPUBLIC ACCESS OPINION 26-011\n(Request for Review 2026 PAC 95139)\n\nFREEDOM OF INFORMATION ACT:\nReports of Confining Jail Inmates to\nRestraint Chairs Are Not Exempt From\nDisclosure Under Section 7(1 )(b ),\nSection 7(1 )( c), or Section 7(1 )(b-5)\nMs. Grace Hauck\nState Investigative Reporter\nIllinois Answers Project\n223 West Jackson Boulevard, Suite 300\nChicago, Illinois 60606\nMr. David K. Livingstone\nAssistant State's Attorney\nMadison County State's Attorney's Office\n157 North Main Street, Suite 402\nEdwardsville, Illinois 62025\nDear Ms. Hauck and Mr. Livingstone:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2025 Supp.)). For the reasons discussed\nbelow, this office concludes that the Madison County Sheriffs Office (Sheriffs Office) violated\nthe requirements of FOIA by improperly denying Ms. Grace Hauck's FOIA request.\nBACKGROUND\n\nOn June 22, 2026, Ms. Hauck submitted a FOIA request to the Sheriffs Office on\nbehalf of the Illinois Answers Project seeking copies of \"all incident reports pertaining to the use\n500 South 2nd Street\nSpringfield, Illinois 6270 I\n(2 17) 782 -1090 • Fax: (2 17) 782-7046\n\n11 5 South LaSa ll e Street\nChicago, Ill inois 60603\n(3 12) 8 14-3000 • Fax : (3 12) 8 14-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(6 18) 529-6400 • Fax: (6 18) 529-641 6\n\nIndi vidua ls with hearing or speech disabiliti es can reach us by using the 7-1-1 relay service.\nwww. 1IIinoisAttomeyGenera l.gov\n\n....... •\n\n.. . ... :;:;:-\n\n4005\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 2\nofrestraint chairs at Madison County Jail in 2024 and 2025.\" 1 On June 23, 2026, the Sheriffs\nOffice denied the request in its entirety pursuant to sections 7(1)(b) and 7(1)(c) FOIA. 2 The\nSheriffs Office's response stated:\nThough an individual is/has been in custody they still have a\ncertain expectation of privacy. Information relative [to] this request\nwill be exempted per the below:\n7(1)(b)- Private Information such as SSN, Phone\nNumber(s), Addresses, DL numbers are protected from release\n7(1)(c) - Releasing the records constitutes an unreasonable\nInvasion of Personal Privacy of those involved. Release of records\n[in] which personal privacy outweighs the public interest are\nexempt.[ 3l\nOn June 30, 2026, Ms. Hauck submitted the above-referenced Request for Review\ndisputing the Sheriffs Office's denial. 4 Specifically, she questioned the Sheriffs Office's\nrationale for denying the request by explaining that the Sheriffs Office previously furnished the\nsame types ofrecords for years 2019-2023 with only the detainees' identifying information\nredacted. 5 Ms. Hauck attached to her Request for Review copies of the records responsive to her\npreviously-submitted FOIA requests. Since obtaining those records, she explained, \"the Illinois\nAnswers Project published a storyl 6 l revealing that staff at Madison County Jail were restraining\npeople in chairs for prolonged periods of time. The story revealed that Madison County violated\ncounty policies, state standards and manufacturer guidelines.\" 7 Ms. Hauck argued that the\nSheriffs Office's improperly applied section 7(1 )( c) because:\n\n1\n\nFOIA portal message from Grace Hauck, [Reporter, Illinois Answers Project,] to FOIA Officer,\nMadison County (June 22, 2026).\n2\n\n5 ILCS 140/7(l)(b), (l)(c) (West 2025 Supp.).\n\n3\n\nFOIA portal message from Jaimie Linton, Administrator of Business, Jail , to Grace Hauck (June\n\n23, 2026).\n4\n\nE-mail from Grace Hauck, State Investigative Reporter, Illinois Answers Project, to Public\nAccess Counselor (June 30, 2026).\n5\nE-mail from Grace Hauck, State Investigative Reporter, Illinois Answers Project, to Public\nAccess Counselor (June 30, 2026).\n6\n\nGrace Hauck and Janelle O'Dea, People were Strapped to Chairs for Hours, Days at Madison\nCounty Jail. Many were Mentally Ill or in Withdrawal[,] Illinois Answers Project (January 29, 2025),\nhttps ://i11 inoisanswers.org/2025/0 l /29/ i11 inois-jai 1-restrained-m ental ly-i II-mad ison-county /.\n7\nE-mail from Grace Hauck, State Investigative Reporter, Illinois Answers Project, to Public\nAccess Counselor (June 30, 2026).\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 3\nUse of force and use ofrestraints at Madison County Jail\nremains of deep concern and public interest. It appears the county\nhas now decided to deny the release of additional records, in the\nwake of a story criticizing jail practices. This denial makes it\ndifficult to determine if the violations of county policies, state\nstandards and manufacturer guidelines are ongoing. [SJ\nOn July 10, 2026, the Public Access Bureau sent a copy of the Request for\nReview to the Madison County State's Attorney's Office as legal counsel for the Sheriffs Office. 9\nThe Public Access Bureau enclosed a letter asking for unredacted copies of the requested reports\nfor this office's confidential review, together with a detailed written explanation of the legal and\nfactual bases for the applicability of sections 7(1)(b) and 7(1)(c) ofFOIA. 10 The letter\nspecifically asked the State's Attorney's Office to \"please address why redaction of select\nportions of the reports would not ameliorate any privacy concerns.\" 11\nOn July 27, 2026, the Sheriffs Office provided this office with the records at\nissue and its written response. 12 In addition to sections 7(1)(b) and 7(1)(c), the Sheriffs Office\nasserted that the records were exempt from disclosure under section 7(1 )(b-5) of FOIA. 13 Later\nthat same day, this office forwarded a copy of Sheriffs Office's answer to Ms. Hauck and\nnotified her of her opportunity to reply. 14 On September 2, 2026, Ms. Hauck's legal counsel, Ms.\nShelley Geiszler, submitted a repl y on her behalf. 15 On September 22, 2026, the Sheriff's Office\n8\n\nE-mail from Grace Hauck, State Investigative Reporter, Illinois Answers Project, to Public\nAccess Counselor (June 30, 2026).\n9\nE-mail from Matthew G. Goodman , Assistant Attorney General, Public Access Bureau, Office of\nthe Illinois Attorney General , to [David K.] Livingstone, Assistant State's Attorney, Madison County State's\nAttorney's Office (July I 0, 2026).\n10\n\nLetter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General , to David K. Livingstone, Assistant State's Attorney, Madison County State's Attorney's Office\n(July I 0, 2026).\n11\nLetter from Matt Goodman, Assistant Attorney General , Public Access Bureau, Office of the\nAttorney General , to David K. Livingstone, Assistant State's Attorney, Madi son County State's Attorney's Office\n(July I 0, 2026), at 2 .\n12\n\nE-mail from David K. Livingstone, Assistant State's Attorney, Civil Division Chief, Madison\nCounty State's Attorney's Office, to Matt [Goodman , Assi stant Attorney General , Public Access Bureau] (July 27,\n2026).\n13 5 ILCS 140/7(1)(b-5) (West 2025 Supp.).\n14\n\nLetter from Matt Goodman , Assistant Attorney General , Public Access Bureau, Office of the\nAttorney General , to Grace Hauck , State Investigative Reporter, Illinois Answers Project (July 27, 2026).\n15\nLetter from Sh e ll ey Gei szler, Loevy + Loevy, to Matthew Goodm an, Ass istant Attorney\nGen eral , Public Access Bureau (dated September I, 2026; tran smitted via e-mail September 2, 2026).\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 4\nsubmitted an unsolicited response to that reply, 16 which is not contemplated by the Request for\nReview process set forth in section 9.5 of FOIA. 17 On September 23 , 2026, an Assistant\nAttorney General in the Public Access Bureau e-mailed Ms. Hauck to clarify whether she would\nbe satisfied with obtaining copies of the records with the detainee names redacted. 18 Ms. Hauck\nconfirmed that she \"would accept the reports provided in the same manner as they previously\nwere on five separate occasions.\" 19\nOn August 29, 2026, the Public Access Bureau extended the time within which to\nissue a binding opinion by 30 business days, to October 13, 2026, pursuant to section 9.5(f) of\nFOIA. 20\nANALYSIS\nSection 1 of FOIA 21 declares that \"it is the public policy of the State of Illinois\nthat access by all persons to public records promotes the transparency and accountability of\npublic bodies at all levels of government.\" Under FOIA, \"[a]ll records in the custody or\npossession of a public body are presumed to be open to inspection or copying. Any public body\nthat asserts that a record is exempt from disclosure has the burden of proving by clear and\nconvincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). The Illinois Supreme\nCourt has \"on several occasions, held that the exceptions to disclosure set forth in the FOIA are\nto be read narrowly so as not to defeat the FOIA's intended purpose.\" Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 416 (2006).\nSection 7(1)(b) of FOIA\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2( c-5) of FOIA 22 defines \"private information\" in relevant part as:\n16\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman , Assistant Attorney General, Public Access Bureau (September 22,\n2026).\n17\n\n5 ILCS 140/9.5 (West 2025 Supp.).\n\n18\n\nE-mail from Matthew G. Goodman , Assistant Attorney General, Public Access Bureau, Office of\nthe Illinois Attorney General , to [Grace] Hauck (September 23, 2026).\n19\n\nE-m ai l from Grace Hauck to Matthew Goodman (September 23, 2026).\n\n20\n\nLetter from Matt Goodman, Assistant Attorney General , Public Access Bureau, Office of the\nAttorney General , to Grace Hauck, State Investigative Reporter, Illinois Answers Project, and David K. Livingstone,\nAssistant State's Attorney, Madison County State's Attorney's Office (August 29, 2026).\n21\n\n5 ILCS 140/1 (West 2024).\n\n22\n\n5 ILCS l40/2(c-5) (West 2025 Supp.).\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 5\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information, passwords or\nother access codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\nIn its response to this office, the Sheriffs Office stated that \"driver's license\nnumbers, personal telephone numbers, and home addresses are redactable[.]\" 23 Because those\ndiscrete pieces of information fall within the plain language of the definition of \"private\ninformation,\" the Sheriffs Office may properly redact them pursuant to section 7(1)(b) of FOIA.\nAs the Sheriffs Office acknowledged, however, \"to the extent there exists other non-exempt\ninformation remaining in the record, such information must be produced.\" 24\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\"\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) contains an exception which provides that \"[t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"\nA public body's assertion that the release of information would constitute a clearly\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192,\n196 (2001). The General Assembly's use of the language \"clearly unwarranted invasion of\npersonal privacy[]\" evinces a \"stricter standard to claim exemption\" than a mere \"invasion\" or\n\"unwarranted invasion of personal privacy[,]\" which the public body possessing the records\nbears the burden of sustaining. (Emphasis in original.) Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (1994).\n\n23\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman, Assistant Attorney General , Public Access Bureau (July 27, 2026), at\n[2].\n24\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman, Assistant Attorney General , Public Access Bureau (July 27, 2026), at\n\n[2] .\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 6\nIn its July 27, 2026, written response to this office, the Sheriffs Office asserted:\n\"As it pertains to the records at issue, the identity of the subject and details surrounding their\nmental health crisis, including whether they are suicidal, homicidal, or engaging in behavior\notherwise considered highly personal to a reasonable person, would fall squarely under Section\n7(1)(c).\" 25 The response cited a non-binding determination letter issued by the Public Access\nBureau26 which pertained to a police report of an alleged sex crime in which no arrests were\nmade and no charges were filed; this office determined that the details of the alleged assault and\nhighly personal information about the victim's treatment in a hospital were exempt from\ndisclosure under section 7(1 )( c), but the information concerning the investigating officers'\nactivities was subject to disclosure. 27 The Sheriffs Office asserted :\nTo ameliorate an unwarranted invasion of personal privacy\nconcern, identifying information of the subject of a report, as well\nas narrative sections of a report which discusses details of the\nincident and other highly personal information, have been\nconsidered information exempt under Section 7(1 )(c). [Citation.]\nHowever, descriptions of activities which bear on the public duties\nof public employees may be disclosable. [28l\nIn her reply to the Sheriffs Office's response, counsel for Ms. Hauck argued that\nany concerns related to privacy could be resolved by redacting the names and other identifying\ninformation of the detainees involved. 29 She also contended that:\nThere is a significant public interest in whether the Sheriffs\nOffice's use of restraint chairs complies with county policies, state\nstandards, and manufacturer guidelines. The redacted records\nwould allow the public and our client to understand whether the\nSheriffs Office and the Madison County Jail are complying with\nthese standards and guidelines, and the records are the only way\nfor the public to monitor compliance. [Citation.] This public\n\n25\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau (July 27, 2026), at\n[2].\n26\n\n111. Att'y Gen. PAC Req. Rev. Ltr. 77465, issued December 30, 2024.\n\n27\n\nlll . Att'y Gen. PAC Req. Rev. Ltr. 77465, at 4.\n\n28\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau (July 27, 2026), at\n[2] .\n29\nLetter from Shelley Gei szler, Loevy + Loevy, to Matt Goodm an, Ass istant Attorney General ,\nPub Iic Access Bureau (dated September I, 2026; tran smitted September 2, 2026), at l.\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 7\ninterest outweighs any privacy interest in the deidentified\nrecords. [3 oJ\nThe resolution of a personal privacy exemption claim involves weighing four\nfactors: \"(l) the [requester's] interest in disclosure, (2) the public interest in disclosure, (3) the\ndegree of invasion of personal privacy, and (4) the availability of alternative means of obtaining\nthe requested information.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police\nDepartment, 399 Ill. App. 3d 1, 13 (2010).\nUnder the first and second factors, Mr. Hauck's personal interest in disclosure of\nthe records is the same as her interest in disseminating information to the public as a reporter\nwith Illinois Answers Project. Therefore, her personal interest aligns with the public interest in\nthe disclosure of information concerning whether the Sheriffs Office's use of restraint chairs\ncomplies with county policies, State standards, and manufacturer guidelines.\nThere is a compelling public interest in the disclosure of records that shed light on\nthe manner that law enforcement officials perform their public duties. See Gekas v. Williamson,\n393 Ill. App. 3d 573 , 585-86 (2009) (noting that section 1 of FOIA3 1 recognizes that the public\nhas a \"'duty\"' to monitor government and holding that the public is entitled to access complaints\nagainst deputies that were deemed to be unfounded by a sheriffs office \"to ensure it is being\nconducted in the public interest\"). There is a particularly high level of public interest in restraint\npractices in local jails such as the Madison County Jail , to shed light on whether the Sheriffs\nOffice is using restraint chairs in an appropriate manner. This office's review of the contested\nrecords confirmed that they document the underlying reasons and circumstances for the use of\nthe restraint chairs, which the public has legitimate interest in knowing. The Sheriffs Office's\nresponse focused on the identities of the subjects and details surrounding any mental health\ncrises they may have had, but, critically, the incident reports also document how public\nemployees conducted their public duties with respect to decisions and procedures concerning the\nuse of restraint chairs. As noted above, the Sheriffs Office acknowledged that descriptions of\nactivities that bear on the public duties of public employees may be disclosable. 32\nAs to the third factor-the degree of invasion of personal privacy- the Sheriffs\nOffice asserted in its written response that it withheld the contested records in order to protect the\n\n30\nLetter from Shell ey Geiszler, [Attorney] , Loevy + Loevy, to Matt Goodman , Assistant Attorney\nGeneral, Public Access Bureau (dated September I , 2026; transmitted September 2, 2026), at 1-2.\n31\n\n5 ILCS 140/1 (West 2006).\n\n32\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County , Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau (July 27, 2026), at\n\n[2].\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 8\nidentities of the subjects and details surrounding their mental health crises. 33 This office's review\nof the incident reports confirmed that they generally do document mental health crises that\ninvolved self-harm, suicidal ideation, and other emotional disturbances that did not result in\ncriminal charges. These incidents are highly personal, and disclosure of the detainees' identities\nwould not advance the public interest in how the Sheriffs Office responded to the incidents.\nNonetheless, it is well-settled that when personally identifying information is redacted from a\nrecord and it is not otherwise evident to whom the remaining information pertains, disclosure of\nthe record in redacted form would not cause a clearly unwarranted invasion of personal privacy.\nSee, e.g., Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373,\n380 (1989) (disclosure of a de-identified record does not cause a clearly unwarranted invasion of\npersonal privacy); State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th)\n120881, ,i 66 (because nothing in the content of an e-mail identified a student aside from her\nname, the e-mail was not exempt from disclosure under section 7(1)(c) once the student's name\nwas redacted).\nThis office's review of the incident reports confirmed that the narrative sections\ncan be disclosed without revealing the identities of the subjects because the individuallyidentifying information can be separated from the non-individually identifying information. As\nexplained above, Ms. Hauck also confirmed for this office that she would accept copies of the\nreports with individually-identifying information of the subjects redacted. With respect to the\nremainder of the information in the reports, the information concerning the subjects who were\nconfined to restraint chairs is not particularly graphic or otherwise comparable to the highly\npersonal details about the alleged sex offense and victim's hospital treatment in the non-binding\ndetermination letter cited by the Sheriffs Office.\nLastly, there is no indication that Ms. Hauck has alternative means of obtaining\nthe contested records.\nTaking all the factors into account, this office concludes that the public interest in\ndisclosure of the de-identified information Ms. Hauck seeks concerning the Sheriffs Office's use\nofrestraint chairs outweighs the subjects' right to privacy. Thus, the Sheriffs Office has not\nsustained its burden of proving by clear and convincing evidence that the records at issue are\nexempt from disclosure in their entireties pursuant to section 7(1 )( c) of FOIA. The personallyidentifying information of the subjects, however, may be redacted pursuant to section 7(l)(c)\ngiven Ms. Hauck's consent to those redactions and because the subjects' right to privacy\noutweighs the public interest in disclosure of their identities. This redactable information\nincludes the subjects' names, inmate numbers, home addresses, and birth dates.\n\n33\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County , Illinois to Matt Goodman , Assistant Attorney General, Public Access Bureau (July 27, 2026), at\n[2] .\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 9\nSection 7(1)(b-5) of FOIA\n\nSection 7(1)(b-5) of FOIA exempts from disclosure \"[f]iles, documents, and other\ndata or databases maintained by one or more law enforcement agencies and specifically designed\nto provide information to one or more law enforcement agencies regarding the physical or mental\nstatus of one or more individual subjects.\" (Emphasis added.)\nIn its written response to this office, the Sheriffs Office argued that the section\n7(1)(b-5) exemption authorizes withholding the incident reports in their entireties. 34 The\nSheriffs Office contended that the \"incident reports at issue document the precipitating cause for\nthe use of the restraint chair, and they are specifically designed to alert jail officers about a\nspecific detainee's mental health crisis or mental health issue. \"35 The Sheriffs Office also stated\nthat \"the reports note whether the subject admitted fee lings of suicide or homicide, or whether\nthe subject actually engaged in harmful behavior such as an attack on deputies, self-harm, or\nself-mutilation. \"36 Further, the Sheriffs Office asserted, \"[t]he reports effectively warn officers\nabout the potential and proclivity for future behavior, and they suggest methods and frequency of\nobservation and/or signal to officers that heightened interaction sensitivity or de-escalation\nattempts may be warranted as a result of the subject's proclivity to act harmfully to themselves or\nothers.\" 37\nIn her reply to the Sheriffs Office's response, counsel for Ms. Hauck argued that\nwhile \"the reports could be used to alert jail officers about an individual's mental health crisis,\"\nthey were not \"specifically designed to provide information to one or more law enforcement\nagencies regarding the physical or mental status of one or more individual subjects.\" 38\n(Emphasis in original.) Rather, the reply argued, \"these reports appear 'specifically designed' to\n\n34\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadi son County, Illinois, to Matt Goodman , Assistant Attorney General , Public Access Bureau (July 27, 2026), at\n[3].\n35\nLetter from David K. Livingstone, Assistant State's Attorney , Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman , Assistant Attorney General , Public Access Bureau (July 27, 2026), at\n\n[3] .\n36 Letter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\n\nMadi son County, Illinois, to Matt Goodman , Assistant Attorney General , Public Access Bureau (July 27, 2026), at\n[3] .\n37\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman , Assistant Attorney General, Public Access Bureau (July 27, 2026), at\n[3].\n38\nLetter from Shelley Geiszler, Loevy + Loevy, to Matt Goodman , Assistant Attorney General ,\nPublic Access Bureau (dated September I, 2026; transmitted September 2, 2026), at 2.\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 10\ncomply with\" sections 701.160U)(5),39 701.30(c), 40 and 720.130(c) 41 of title 20 of the Illinois\nAdministrative Code, which generally require jails to document uses of restraints. 42\nFurthermore, counsel for Ms. Hauck alleged, the Sheriffs Office's policies reflect that the\npurpose of the reports is to fulfill these regulations.43\nIn its response to that reply, the Sheriffs Office asserted that Ms. Hauck had\nreferenced outdated versions of its restraint policies, and argued that \"the former policy and the\nrevised policy do show that the reports are 'specifically designed' to provide information to law\nenforcement agencies regarding the physical or mental status of a subject. \"44 (Emphasis in\noriginal.) The Sheriffs Office acknowledged,45 however, that the pertinent language of its \"Use\nof Restraints\" policy 46 was unchanged; this policy expressly ties the creation ofreports on the\nuse ofrestraints to an Illinois Administrative Code provision referenced above 47 that requires the\ncreation of the reports for the purpose of upholding county jail standards.\nIn construing a statute, the primary objective is to ascertain and give effect to the\nintent of the General Assembly. Southern Illinoisan , 218 Ill. 2d at 415 (2006). \"[T]he surest and\nmost reliable indicator of' legislative intent \"is the statutory language itself, given its plain and\nordinary meaning.\" Board of Education of Springfield School District No. 186 v. Attorney\nGeneral of Illinois , 2017 IL 120343 , ~ 24. \"If the language of a statute is ambiguous,\" a\n39\n\n20 Ill. Adm. Code § 701.160(j)(5) (2026), last amended at 38 Ill. Reg. 18859, effective October\nI, 2014 (\"A written report shall be placed on file whenever restraint devices are applied[.]\").\n40\n\n20 Ill. Adm. Code § 70 l .30(c) (2026), last amended at 38 Ill. Reg. 18859, effective October I,\n2014 (requiring county jails to report extraordinary or unusual occurrences, which include \"use of a control device,\nsuch as chemical agents, oleoresin capsicum (OC), electro-muscular disruption device, restraint chair, baton , etc.\").\n41\n\n20 II I. Adm . Code § 720.130( c) (2026), last amended at 3 8 Ill. Reg. 18859, effective October I,\n2014 (concerning \"extraordinary or unusual circumstances\" reports for municipal jails).\n42\n\nLetter from Shelley Geiszler, Loevy + Loevy, to Matt Goodman , Assistant Attorney General,\nPublic Access Bureau (dated September I, 2026 ; transmitted September 2, 2026), at 2.\n43\n\nLetter from Shelley Geiszler, Loevy + Loevy , to Matt Goodman, Assistant Attorney General ,\nPublic Access Bureau (dated September I, 2026; transmitted September 2, 2026), at 2 (citing Madison County\nSheriffs Office, Custody Manual , Policy I 005 (September 26, 2023)).\n44\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman , Assistant Attorney General , Public Access Bureau (September 22 ,\n2026), at [I] .\n45\n\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County , Illinois, to Matt Goodman, Assistant Attorney Gen eral , Public Access Bureau (September 22 ,\n2026), at [2] .\n\n2014 .\n\n46\n\nMadison County Sheriffs Office, Custody Manual , Policy 510.3 (last amended June 9, 2026).\n\n47\n\n20 Ill. Adm . Code § 70 l. l 60(j) (2026), last amended at 3 8 Ill. Reg . 18859, effective October I,\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 11\nreviewing body \"turns to extrinsic aids of statutory construction, including legislative history[.]\"\nParis v. Lake Holiday Prop. Owners Ass'n, 2013 IL 113907, ~ 47.\nBy its plain language, section 7(1)(b-5) applies only to information \"specifically\ndesigned\" to inform law enforcement agencies about the physical or mental status of subjects.\nThe scope of what records are \"specifically designed\" for that purpose, however, is not evident\nfrom the plain language of the statute. To resolve this ambiguity, this office looks to the\nlegislative history behind the exemption.\nThe legislative history of section 7( 1)(b-5) reveals that the exemption \"seeks to\nprotect medical records as it pertains to emergency dispatching for law enforcement agencies to\nbetter serve those that they're ... responding to and to be made aware of special concerns,\ndisabilities an individual may have so they could respond and act appropriately when trying to\nassist them. \"48 In response to a question about the purpose of the bill that eventually created the\nexemption, one of the House sponsors, Representative Dan Brady, explained:\nThe initiative is that of one of my local law enforcement agencies.\nAnd what it would do is that if a family would voluntarily share\ninformation to that law enforcement agency for means of\ndispatching, for instance, if the individual might have autism. They\nmay ... the individual might have some other type of disability that\nthe law enforcement agency would share only with responding\nemergency crew or law enforcement that that information under\nthe Freedom of Information Act would not be shared with any\nother individual[.]l49 l\nWhen asked to explain further, Representative Brady advised: \"[W]e're just trying to make sure\nthat when the families [that] voluntarily give this information are being told from the program\nthat this information will not be shared [except] with law enforcement officials for the protection\nand safety of the individuals they may be responding to to render help, that that's in fact the\nsituation. 1150 The legislative history thus clarifies that the purpose of the exemption is to allow\nfamily members to confidentially share sensitive information about their loved ones' disabilities\nor other pertinent physical or mental conditions so that law enforcement officers and emergency\nresponders may account for them when responding to incidents involving those individuals.\n\n48\n\nRemarks of Representative Dan Brady, March 17, 2009, House Debate on House Bill No. 47\n(which , as Public Act 96-558, effective January I, 20 I 0, enacted section 7(l)(b-5) of FOlA), at 52.\n49\n\nRemarks of Representative Dan Brady, March 17, 2009, House Debate on House Bill No . 47\n(which , as Public Act 96-558, effective January I, 2010, enacted section 7(l)(b-5) ofFOIA), at 53.\n50\nRemarks of Representative Dan Brady, March 17, 2009, House Debate on House Bill No. 47\n(which, as Public Act 96-5 58, effective January I, 20 I 0, enacted section 7( I )(b-5) of FOlA), at 53-54.\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 12\nThis office's confidential review of the incident reports at issue confirmed that\nthey fall outside the scope of the section 7(1)(b-5) exemption, as they are not specifically\ndesigned to alert emergency responders or law enforcement agencies to the mental or physical\nconditions of subjects they may encounter upon dispatch. Instead, the incident reports document\noccurrences at the jail where restraint devices had been used. The Illinois Administrative Code\nrequires such reports to be generated whenever restraint devices are applied.51 The regulatory\ncontext of this requirement is that safeguards such as \"[r]estraint devices * * * shall not be\napplied as a penalty[,]\" 52 and \"each individual case shall be reviewed at least once every 24 hours\nto determine the necessity for restraints. \"53 In other words, these rules reflect that incident\nreports on the use of restraint devices serve as a check on the propriety of a public body's use of\nthe restraints. As such, they are not the type of record specifically designed to alert law\nenforcement to the mental or physical conditions of subjects they may encounter when\nresponding to a call. To the extent that the Sheriffs Office also uses the reports Ms. Hauck\nrequested \"to communicate the mental health status and alert the jail staff about the condition of\nthe detainee[,]\" 54 neither the language of the exemption nor the legislative history suggests that\nsection 7(1)(b-5) is intended to shield when, how, or why law enforcement officers place\ndetainees in restraints. Accordingly, this office concludes that the Sheriffs Office has not\nsustained its burden of proving by clear and convincing evidence that the responsive incident\nreports are exempt from disclosure in whole or in part pursuant to section 7(1)(b-5) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On June 22, 2026, Ms. Grace Hauck submitted a FOIA request to the Madison\nCounty Sheriffs Office on behalf of the Illinois Answers Project seeking copies of incident\nreports pertaining to the use of restraint chairs at Madison County Jail in 2024 and 2025.\n2) On June 23, 2026, the Sheriffs Office responded by denying the request in its\nentirety under sections 7(1)(b) and 7(1)(c) of FOIA.\n\n51\n\n20 Ill. Adm in . Code§ 70 I. I60U)(5) (2026), last amended at 38 Ill. Reg. 18859, effective\n\n52\n\n20 Ill. Adm in. Code § 70 l. I60U) (2026), last amended at 38 Ill. Reg . 18859, effective\n\n53\n\n20 Ill. Adm in. Code § 701. l 60(j)(5) (2026), last amended at 38 Ill. Reg. 18859, effective\n\nOctober I, 2014.\n\nOctober I, 2014.\n\nOctober I , 2014.\n54\nLetter from David K. Livingstone, Assistant State's Attorney, Office of the State's Attorney,\nMadison County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau (September 22,\n2026), at [2].\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 13\n3) In an e-mail transmitted to the Public Access Bureau on June 30, 2026, Ms.\nHauck submitted a Request for Review contesting the Sheriffs Office denial. The Request for\nReview was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA\n(5 ILCS 140/9.5(a) (West 2025 Supp.)).\n4) On July 10, 2026, the Public Access Bureau sent a copy of the Request for\nReview to the Sheriffs Office. The Public Access Bureau also sent the Sheriffs Office a letter\nasking for umedacted copies of the responsive records for this office's confidential review, and a\ndetailed written explanation of the legal and factual bases for the applicability of the asserted\nexemptions.\n5) On July 27, 2026, the Sheriffs Office provided this office with umedacted\ncopies of the responsive incident reports and its written answer, in which it additionally asserted\nthe section 7(1)(b-5) exemption.\n6) On July 27, 2026, the Public Access Bureau forwarded a copy of the Sheriffs\nOffice's answer to Ms. Hauck and notified her of her opportunity to reply. On September 2,\n2026, counsel for Ms. Hauck submitted a written reply. On September 22, 2026, the Sheriffs\nOffice submitted an unsolicited response to that reply. On September 23 , 2026, Ms. Hauck\nconfirmed for this office that she did not dispute the redaction of detainees' names.\n7) On August 29, 2026, this office extended the time within which to issue a\nbinding opinion by 30 business days, to October 13, 2026. Accordingly, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n8) Section 7(1 )(b) exempts from disclosure \"[p ]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA defines \"private information\" to include driver's license numbers, home\nor personal telephone numbers, and home addresses (except as otherwise provided by law or\nwhen compiled without possibility of attribution to any person).\n9) The Sheriffs Office has sustained its burden of proving that driver's license\nnumbers, home or personal telephone numbers, and home addresses are exempt from disclosure\npursuant to section 7(1 )(b ).\n10) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1 )( c) defines \"unwarranted invasion of personal privacy\"\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) contains an exception which provides that \"[t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 14\n11) The incident reports include highly personal information describing detainees\nexperiencing mental health crises. The public interest in how the Sheriffs Office handled these\nincidents would not be advanced by disclosing the identities of the detainees. Because disclosure\nof information identifying the detainees who were confined to restraint chairs during mental\nhealth crises would constitute a clearly unwarranted invasion of the detainees' personal privacy,\ntheir personally-identifying information is exempt from disclosure pursuant to section 7(1)(c) of\nFOIA.\n12) Disclosure of the incident reports with the identifying information of the\nsubjects redacted would not cause a clearly unwarranted invasion of any subject's personal\nprivacy. The compelling public interest in disclosure of information concerning the reasons for\nthe use of restraint chairs in county jails outweighs any privacy interests once the names of the\nsubjects of the reports have been redacted. Moreover, the incident reports pertain to the\nperformance of public duties by public employees or officials. Therefore, the Sheriffs Office did\nnot prove by clear and convincing evidence that section 7(1)(c) of FOIA exempts the entireties\nof the records from disclosure.\n13) Section 7(1)(b-5) of FOIA exempts from disclosure \"[f]iles, documents, and\nother data or databases maintained by one or more law enforcement agencies and specifically\ndesigned to provide information to one or more law enforcement agencies regarding the physical\nor mental status of one or more individual subjects.\"\n14) The incident reports are not specifically designed to alert law enforcement\nagencies to information about the mental or physical status of subjects they may encounter.\nInstead, the incident reports document the use of restraint chairs within the county jail in\naccordance with Illinois Administrative Code provisions that require such documentation.\nSection 7(1)(b-5) is intended to protect information shared by family members about loved ones'\ndisabilities or other sensitive conditions to enable law enforcement officers and emergency\nresponders to account for these considerations. Because the incident reports do not contain such\ninformation or otherwise document the physical or mental status of subjects for the specific\npurpose of alerting law enforcement officers and emergency responders to disabilities or other\nsensitive conditions, the Sheriffs Office did not sustain its burden of proving by clear and\nconvincing evidence that the incident reports are exempt from disclosure pursuant to the section\n7(1)(b-5) exemption.\nTherefore, it is the opinion of the Attorney General that the Sheriffs Office\nviolated the requirements of FOIA by improperly denying the incident reports responsive to Ms.\nHauck's Freedom oflnformation Act request. Accordingly, the Sheriffs Office is hereby\ndirected to take immediate and appropriate action to comply with this opinion by providing Ms.\nHauck and the Illinois Answers Project with copies of the reports, subject only to permissible\nredactions of the discrete information described above.\n\n\fMs. Grace Hauck\nMr. David K. Livingstone\nSeptember 30, 2026\nPage 15\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n3 5 days of the date of this decision naming the Attorney General of Illinois and Ms. Grace Hauck\nas defendants. See 5 ILCS 140/11.5 (West 2024).\nVery truly yours,\nKWAMERAOUL\nATTORNEY GENERAL\n\nBy :\n\n12--✓\nR. Douglas Rees\nChief Deputy Attorney General\n\n\fCERTIFICATE OF SERVICE\n\nJoshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies\nthat he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-011)\nupon:\nMs. Grace Hauck\nState Investigative Reporter\nIllinois Answers Project\n223 West Jackson Boulevard, Suite 300\nChicago, Illinois 60606\nghauck@bettergov.org\nMr. David K. Livingstone\nAssistant State's Attorney\nMadison County State's Attorney's Office\n157 North Main Street, Suite 402\nEdwardsville, Illinois 62025\ndklivingstone@madisoncountyil.gov\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on September 30, 2026.\n\nd:k\nBureau Chief\n\nJoshua M. Jones\nBureau Chief\nPublic Access Bureau, Chicago\nOffice of the Attorney General\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-8413\n\n\f"}
{"id":1488,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2018,"date_issued":"2018-03-30","case_number":null,"request_numbers":["52318"],"title":"McHenry County Sheriff's Office properly withheld juvenile records under 7(1)(a)","filename":"52318, issued March 30, 2018.pdf","rel_path":null,"word_count":953,"summary":"The requester sought records related to case number 18-006752 from the McHenry County Sheriff's Office. The Sheriff's Office provided a crash report but withheld other records under FOIA section 7(1)(a), citing the Juvenile Court Act, and the PAC determined the request for review was unfounded because the arrested individual was a minor.","plain_summary":"FOIA exempts records that are specifically prohibited from disclosure by other state or federal laws. Here, the Juvenile Court Act prohibits releasing law enforcement records concerning a minor who has violated a law, defining such a minor as a 'delinquent minor.' Because the arrested individual was under 18, the Sheriff's Office correctly withheld the records under FOIA section 7(1)(a), which incorporates that statutory bar. The PAC therefore found no violation, though it noted the requester could seek a court order for good cause.","holding":"The Sheriff's Office properly withheld the requested records because they were exempt from disclosure under FOIA section 7(1)(a) due to the Juvenile Court Act's prohibition on releasing information about a delinquent minor.","legal_question":"Whether the Sheriff's Office properly withheld records under FOIA section 7(1)(a) based on the Juvenile Court Act's prohibition on disclosing information about a delinquent minor.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"McHenry County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"Law enforcement records related to an arrest of a minor, including a crash report and other case documents.","ocr_status":"ok","ocr_quality":93.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/52318, issued March 30, 2018.pdf","sha256":"b4a19869bcaa2693525ef1355b6bf9fa3161897f69b496b34ff9964199f7bbba","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["police records","juvenile records","exemption 7(1)(a)","Juvenile Court Act"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Law enforcement records of a minor's arrest","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52318/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 30, 2018\n\nRE: FOIA Request for Review- 2018 PAC 52318\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2016)). For the reasons set forth below, the\nPublic Access Bureau has determined that this Request for Review is unfounded.\nOn March 5, 2018, you submitted a FOIA request to the McHenry County\nSheriffs Office (Sheriffs Office) seeking records relating to case number 18-006752. On March\n12, 2018, the Sheriffs Office provided you with the crash report but denied other responsive\nrecords pursuant to section 7(l)(a) ofFOIA (5 ILCS 140/7(l )(a) (West 2016), as amended by\nPublic Acts 100-26, effective August 4, 2017; 100-201, effective August 18, 2017). In\nconnection with section 7(1)(a), the Sheriffs Office cited, among other statutes, the .Juvenile\nCourt Act of I 987 (JCA) (705 ILCS 405/1-1 et seq. (West 2016)). In your Request for Review,\nsubmitted on March 21, 2018, you allege that the Sheriffs Office improperly withheld records\nresponsive to your FOIA request.\nOn March 28, 2018, Ms. Gail Bruens, the Sheriffs Office's FOIA officer,\ninformed an Assistant Attorney General in the Public Access Bureau by telephone that the\nindividual arrested for the incident at issue was a minor. Later that day, Ms. Bruens sent this\noffice unredacted records for this office's confidential review, which confirmed that the arrested\nindividual was a minor.\nSection 7(l)(a) ofFOIA exempts from disclosure \"[i)nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\n\n500 South Second Street. Springfield. 111inois 62706 • (217) 782-1090 • TTY: (217)785 -2771 • Fax: (217) 782-7046\nI 00 West Randolph Street. Chicago, Illinois. 6060 I • (312) 814-3000 • TTY: (312) 814-3374 • fax: (312) 814-3806\n1001 East Main. Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416\n\n\fMarch 30, 2018\nPage 2\nor State law.\" 1 Section l-7(A) ofthe JCA (705 ILCS 405/l-7(A) (West 2016), as amended by\nPublic Act 100-285, effective January I, 2018) provides:\nAll juvenile records which have not been expunged are\nsealed and may never be disclosed to the general public or\notherwise made widely available. Sealed records may be obtained\nonly under this Section and Section 1-8 and 5-915 of this Act,\nwhen their use is needed for good cause and with an order from the\njuvenile court, as required by those not authorized to retain them.\n(Emphasis added.)\nSection l-7(A) further provides: \"Inspection and copying oflaw enforcement records\nmaintained by law enforcement agencies that relate to a minor who has been investigated,\narrested, or taken into custody before his or her 18th birthday shall be restricted to the\nfollowing[.]\" (Emphasis added.) The classes of persons who are permitted access to those\nrecords are then enumerated; neither a FOIA requester nor a victim of the offense documeted in\nthe records is included among the authorized parties.2 Similarly, section 5-905(1) of the JCA\n(705 ILCS 405/5-905(1) (West 2016)), which pertains specifically to \"delinquent minors,\" 3\nprovides that the \"[i]nspection and copying oflaw enforcement records maintained by law\nenforcement agencies that relate to a minor who has been investigated, arrested, or taken into\ncustody before his or her 18th birthday shall be restricted to the following and when necessary\nfor the discharge of their official duties[.]\" (Emphasis added.) Again, the authorized parties do\nnot include a FOIA requester or a victim ofthe crime documented in the records.\nThe responsive records concern the arrest of a minor and therefore are subject to\nthe confidentiality restrictions ofthe JCA, which prohibit the Sheriffs Office from disclosing\nthem to an unauthorized party. You are not a person authorized by the JCA to receive law\nenforcement records of the minor who was arrested in this case. Rather, you state that you are\nseeking the records to submit to your insurance company following damage to your property.\n1\n\nAdditionally, section 7.5(bb) ofFOlA (5 lLCS 140/7.5(bb) (West 2016), as amended by Public\nActs I00-020, effective July l, 2017; I 00,022, effective January I, 20 l 8; l 00-20 l, effective August 18, 2017; I00373, effective January l, 2018; I 00-464, effective August 28, 2017; I 00-465, effective August 31, 2017) exempts\nfrom disclosure: \"lnfonnation which is or was prohibited from disclosure by the Juvenile Court Act of 1987.\"\n'Such as local, state, and federal law enforcement agencies, prosecutors, probation officers and\nsocial workers, military personnel, mental health professionals, school officials, and prisoner review boards. 705\nILCS 405/l-7(A) through (A)(9) (West 2016), as amended by Public Act 100-285, effective January I, 2018).\n3\n\n\"Delinquent minor\"' is defined as \"any minor who prior to his or her 18th birthday has violated or\nattempted to violate, regardless of where the act occurred, any federal, State, county or municipal law or ordinance.\"\n705 ILCS 405/5-105 (West 2016).\n\n\fMarch 30, 2018\nPage 3\n\nBecause sections 7(l )(a) and 7.5(bb) ofFOIA exempt from disclosure information prohibited\nfrom disclosure by the JCA, the Public Access Bureau has determined that this Request for\nReview is unfounded.\nThis office notes, however, that you have the option ofseeking a court order that\nwould permit the records to be disclosed to you \"when their use is needed for good cause.\" 705\nILCS 405/l-7(A) (West 2016), as amended by Public Act 100-285, effective January 1, 2018.\nThis letter closes this file. Ifyou have any questions, please contact me at the\nChicago address listed on the bottom ofthe first page ofthis letter.\nVery truly yours,\n\nS. PIY A MUKHERJEE\nAssistant Attorney General\nPublic Access Bureau\n52318 funfpd\ncc:\n\nVia electronic mail\nMs. Gail Bruens\nFOIA Office\nMcHenry County Sheriffs Office\n2200 North Seminary Avenue\nWoodstock, Illinois 60098\nGLBruens@co.mchenry.il.us\n\n\f"}
{"id":1489,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2019,"date_issued":"2019-08-20","case_number":null,"request_numbers":["58028"],"title":"Peoria County Sheriff's Office violated FOIA by denying accident records request","filename":"58028, issued August 20, 2019.pdf","rel_path":null,"word_count":1705,"summary":"The requester sought police reports, video, body camera footage, and 9-1-1 calls regarding an April 7, 2019 accident from the Peoria County Sheriff's Office. The PAC determined the Sheriff's Office violated FOIA by improperly denying the request.","plain_summary":"Under FOIA, a public body must disclose requested records unless an exemption applies. Here, the Sheriff's Office denied the request for police reports, video, body camera footage, and 9-1-1 calls related to an accident, but the PAC found that the denial was improper because the records were not exempt from disclosure. The decisive fact was that the Sheriff's Office failed to provide a valid legal basis for withholding the records, and the PAC concluded that the requested records should have been disclosed.","holding":"The Peoria County Sheriff's Office violated FOIA by improperly denying Mr. Christopher Doscotch's FOIA request.","legal_question":"Whether the Peoria County Sheriff's Office violated FOIA by denying a request for police reports, video, body camera footage, and 9-1-1 calls concerning an accident.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Peoria County Sheriff's Office","requesting_party":"Mr. Christopher Doscotch","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Police reports, video, body camera footage, and 9-1-1 calls concerning an accident on April 7, 2019.","ocr_status":"ok","ocr_quality":91.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/58028, issued August 20, 2019.pdf","sha256":"0e86dbf0791271ebc24cfe19c8a6141e33ccf5c1937d46df02d2f71fd6102e67","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["police report","body camera footage","9-1-1 calls","FOIA violation"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports, video, body camera footage, and 9-1-1 calls about an accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58028/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n'\nAugust 20, 2019\n\n'\nVia elertronic mail\nMs. Jennifer A. Bonesteel\nStephen P. Kelly Law\n2 7100 North Knoxville Avenue\nPeoria, Illinois 61604\njbonesteel@stephenkellylaw.com\nVia electronic mail\nMs. Carol Lotz\nRecords Clerk\nOffice of the: Sheriff\nPeoria Coun\\y\n301 North Maxwell Road\nPeoria, Illinois 61604\nclotz@peori�county.org\n''\nI RE: FOIA Request for Review - 2019 PAC 58028\nDear Ms. Bonesteel and Ms. Lotz:\n! This determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act\n' (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Peoria County Sheriffs Office (Sheriffs Office)\nviolated FOIA by improperly denying Mr. Christopher Doscotch's May 9, 2019, FOIA request.\n' On that date 1 , Mr. Doscotch, on behalf of his client\n, submitted\na FOIA requ�st to the Sheriffs Office seeking copies of the police report, video, body camera\nfootage, and any 9-1-1 calls concerning an accident on April 7, 2019. On May 7, 2019, the\n\nlt appears that Mr. Doscotch's FO!A request was submitted sometime before May 9, 2019,\nbecause the Sheriffs Office's response to the FO!A request is dated May.7, 2019, and Ms. Jennifer A. Bonesteel's\ninitial Request for Review was sent to this office on May 8, 2019.\n1\n\n1\n\nI\n\nI\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n\nI00'West Randolph Street. Chicago, 111inois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fMs. Jennifer:A. Bonesteel\nMs. Carol Lotz\nAugust 20, 2019\nPage 2\n\nSheriff's Office denied Mr. Doscotch's request pursuant to the Juvenile Court Act of 1987 (JCA)\n(705 ILCS 405/1-1 et seq. (West 2016)).\ni\nOn May 9, 2019,the Public Access Bureau received a completed Request for\nReview from Ms. Jennifer A. Bonesteel,on behalf of Stephen P. Kelly Law, contesting the\nSheriff's Office's denial of Mr. Doscotch's FOIA request. On May 13, 2019, the Public Access\nBureau sent a sent a copy of the Request for Review to the Sheriff's Office and asked it to\nprovide copies of the withheld records for this office's confidential review, together with a\ndetailed explanation of the factual and legal bases for the applicability of the JCA to the withheld\nrecords. On May 16,2019, the Sheriff's Office provided this office with a written answer. The\nSheriff's Office also furnished this office with a copy of the traffic crash report for our\nconfidential review, but did not provide copies of any video, body camera footage,or 9-1-1 calls\nrelated to the' accident. On May 21, 2019, the Public Access Bureau forwarded a copy of the\nSheriff's Office's\nanswer to Ms. Bonesteel; she replied on May 22, 2019.\nI\n.\n\nDETERMINATION\n\nI All public records in the possession or custody of a public body \"are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/1.2 (West 2016); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that denies a record\n\"has the burden of proving by clear and convincing evidence\" that the record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2016). The exemptions from disclosure are to be narrowly\nconstrued. Lieber v. Board a/Trustees a/Southern Illinois District, 176 Ill. 2d 401,407 (1997).\nSection 7.S(bb) ofFOIA and the Juvenile Court Act\n\nSection 7.5(bb) ofFOIA (5 ILCS 140/7.5(bb) (West 2017 Supp.), as amended by\nPublic Act 100-646, effective July 31, 2018; 100-863,effective August 14, 2018; 100-887,\neffective August 14, 2018) exempts from inspection and copying \"[i]nformation which is or was\nprohibited from disclosure by the Juvenile Co_urt Act of 1987.\" The Sheriff's Office asserted that\nthe JCA prohibits the disclosure of the records requested by Mr. Doscotch because they concern\na minor who was investigated and ticketed in connection with the accident. Section 1-7(A) of\nthe JCA (705: ILCS 405/1-7(A) (West 2017 Supp.), as amended by Public Acts 100-285,\neffective January 1, 2018; 100-720, effective August 3, 2018; 100-863, effective August 14,\n2018; 100-1162, effective December 20, 2018), titled \"Confidentiality of law enforcement and\nmunicipal_ ordinance violation records[,]\" provides, in pertinent part:\nAll juvenile law enforcement records which have not been\nexpunged are confidential and may never be disclosed to the\n, general public or otherwise made widely available. Juvenile law\n\n\fMs. Jennifer, A. Bonesteel\nMs. Carol Lotz\nAugust 20,2019\nPage 3\n\nenforcement records may be obtained only under this Section and\nSection 1-8 and Part 9 of Article V of this Act, when their use is\nneeded for good cause and with an order from the juvenile court,\nas required by those not authorized to retain them. Inspection,\ncopying, and disclosure of juvenile law enforcement records\nmaintained by law enforcement agencies or records of\nmunicipal ordinance violations maintained by any State, local, or\nmunicipal agency that relate to a minor who has been investigated,\narrested, or taken into custody before his or her 18th birthday shall\nbe restricted to the following[.) (Emphasis added.)\nThe term \"ju:venile law enforcement records\" is defined in section 1-3(8.2) of the JCA (705 ILCS\n405/1-3(8.2);(West 2017 Supp.), as amended by Public Acts 100-689, effective January I, 2019;\n100-863,effective August 14,2018; 100-1162, effective December 20, 2018) as:\n[R]ecords of arrest, station adjustments, fingerprints, probation\nadjustments, the issuance of a notice to appear, or any other\nrecords or documents maintained by any law enforcement agency\n, relating to a minor suspected of committing an offense, and\n: records maintained by a law enforcement agency that identifies a\njuvenile as a suspect in committing an offense\nThe Attorney General has held that section l-7(A) of the JCA prohibits the\ndisclosure oirecords of minors who have been investigated, arrested, or taken into custody. See\nIll. Att'y Gen. Pub, Acc. Op. No. 18-016, issued November 14, 2018, at 8. In addition, the\nAttorney General has observed that \"the plain language of the JCA demonstrates an intent to\nsafeguard the privacy of a juvenile who has been arrested and is the subject of a juvenile court\nproceeding and ultimately, to rehabilitate that juvenile.\" Ill. Att'y Gen. Pub. Acc. Op. No. 12012, issued August 14, 2012, at 7. The Public Access Bureau has previously held that section l7(A) of the JCA does not prohibit the disclosure of law enforcement records ofa minor charged\nas an adult. See Ill. Att'y Gen. PAC Reg. Rev. Ltr. 42359, issued April 11,2017,at 3 (\"Because\nthe prosecution of a minor in adult court is a matter of public record, applying the confidentiality\nprovisions of the JCA to records concerning such cases would not further the JCA's purpose of\nprotecting the privacy of the minor to promote rehabilitation.\")\nIn her reply to this office, Ms. Bonesteel asserted section l-7(A) of the JCA only\nprohibits dis�losure of records if the minor was charged with a juvenile offense in juvenile court.\n\n\fMs. Jennifei A. Bonesteel\nMs. Carol Lotz\n'\nAugust 20, 2019\nPage 4\nThe minor's traffic offense in this matter was adjudicated in traffic court. 2 Although the General\nAssembly recently amended section l-7(A) to include protections for records of minors receiving\nmunicipal ordinance violations, which are not handled in juvenile court, the JCA does not list\nrecords relating to traffic citations as a type ofrecord that must be kept confidential. In addition;\ntraffic citations are not specifically listed in the definition of \"juvenile law enforcement record\"\nin section l-3(8.2) of the JCA. Under the canon of statutory interpretation expressio uni us est\nexclusion alterius, meaning \"to express or include one thing implies the exclusion of the other, or\nofthe alternative(,]\" the General Assembly's express provision for the confidentiality ofa\njuvenile ordinance violation records and silence about the need for confidentiality of juvenile\ntraffic citations signifies that the General Assembly did not intend to extend the confidentiality\nprovisions ofsection l-7(A) JCA to the law enforcement records of minors receiving traffic\ncitations.\nThe Sheriff's Office's answer to this office asserted \"[t]he accident report,\nrequested by Stephen Kelly's Office, was denied as a minor was investigated and ticketed during\nthis incident, This decision is supported by the Juvenile Court Act [citation] which mandates any\nreport involving a minor that was arrested, charged, or investigated must be withheld in full.\" 3\nAlthough this office's review ofthe withheld report confirmed that a citation for disregarding a\nstop sign was issued to a seventeen-year-old driver of one ofthe vehicles involved, the Sheriff's\nOffice has not explained how records related to a traffic citation constitute a \"juvenile law\nenforcement1 record\" subject to the confidentiality provisions of the JCA. Accordingly, this\noffice concludes that the Sheriff's Office has not sustained its burden of demonstrating by clear\nand convincing evidence that the requested records are exempt from disclosure pursuant to\nsection 7.5(bb) ofFOIA.\nIn accordance with the conclusions in this letter, the Public Access Bureau\nrequests that the Sheriff's Office provide Mr. Doscotch and Ms. Bonesteel with a copy of the\ntraffic crash report, video and body camera footage, and any 9-1-1 calls concerning the accident.\nIf the Sheriff's Office does not possess video or body camera footage or 9-1-1 calls for the\naccident, please provide Mr. Doscotch and Ms. Bonesteel with a supplemental response\nexplaining the search the Sheriff's Office performed to try to locate those records. This office\nhas determi�ed that resolution ofthis matter does not require the issuance of a binding opinion.\n\n1\n\n2 According to the electronic court records on the Peoria County Circuit Clerk's website, the traffic\n\ncitation at issu� was adjudicated on April 17, 2019 in Peoria County Traffic Court Case number 19-TR-04540-1.\n3\n\nLetter from Carol Lotz, Records Clerk, Peoria County Sheriffs Office, to Matt Hartman,\nAssistant Attorpey General, Public Access Bureau (May 16, 2019).\n\n\fMs. Jennifet' A. Bonesteel\nMs. Carol Lotz\nAugust 20, 2019\nPage 5\n\nIf you have any questions, please contact me at (217) 782-9054,\nmhartman@atg.state.il.us, or the Springfield address provided on the first page of this letter.\nThis co1Tespondence serves to close this matter.\n\nAssistant Attorney General\nPublic Access Bureau\nI\n\n•\n\n58028 f 75bb improper co\ncc:\n\nVia dectronic mail\nMr. 'Christopher Doscotch\nLaw Office of Christopher Doscotch\nchris@doscotchlaw.com\n\n\f"}
{"id":1490,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2020,"date_issued":"2020-10-06","case_number":null,"request_numbers":["65010"],"title":"Chicago Police Department properly withheld body camera footage under 7.5(cc)","filename":"65010, issued October 6, 2020.pdf","rel_path":null,"word_count":1163,"summary":"The requester sought officer-worn body camera footage related to a motor vehicle accident from the Chicago Police Department. CPD responded that no responsive records existed because the victim was not captured in any footage. The PAC determined the request was unfounded because the requester was not among the persons authorized to obtain copies of non-flagged recordings under the Body Camera Act, and FOIA section 7.5(cc) exempts such recordings from disclosure.","plain_summary":"Under FOIA section 7.5(cc), officer-worn body camera recordings are exempt from disclosure unless the requester falls within a specific category of persons authorized by the Body Camera Act to obtain copies. The Body Camera Act (section 10-20(b)(3)) limits access to non-flagged recordings to the officer involved, the officer's legal representative, or persons with a court order. The requester did not claim to be the officer or the officer's representative, and no facts suggested the recordings were flagged for a reason that would allow broader access. Therefore, CPD properly withheld the recordings, and the PAC found no violation.","holding":"The Chicago Police Department did not improperly withhold the requested body camera recordings because the requester was not authorized to obtain them under the Body Camera Act.","legal_question":"Whether the Chicago Police Department properly withheld officer-worn body camera footage under FOIA section 7.5(cc) when the requester was not among the persons authorized to obtain copies under the Body Camera Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(cc)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(cc)"],"public_body":"Chicago Police Department","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"Officer-worn body camera footage related to a motor vehicle accident investigation.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/65010, issued October 6, 2020.pdf","sha256":"cd12a1fcab711b14a58854da4c69731d33f5216324de830d7572206fdb9dafa7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["body camera footage","police records","FOIA exemption 7.5(cc)","Body Camera Act"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a motor vehicle accident investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65010/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTA TE OF ILLINOIS\n\nKWAMERAOUL\nA TIORNEY GENERAL\n\nOctober 6, 2020\n\nRE:\n\nFOIA Request for Review-2020 PAC 65010; CPD File No.: P59161 l\n\nDear-:\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that your Request for Review is unfounded.\nOn July 15, 2020, you submitted a FOIA request to the Chicago Police\nDepartment (CPD) seeking copies of the officer-worn body camera footage captured by CPD\nofficers' when responding to, and during the investigation of, a particular motor vehicle accident\nthat was referred to in crash report JD296537. On September 29, 2020, CPD responded to your\nrequest by stating, \"[y]our request was reviewed by CPD, search results for body worn camera\n[BWC] for RD#JD296537, FOIA determined Non-Responsive. Victim was not captured in any\nBWC Footage; therefore, CPD has no responsive records to your request as it is stated.\" 1 Your\nRequest for Review disputes CPD's response, asserting your request sought all of the body\ncamera recordings related to the accident not only the footage that included the victim.\n\n1Letter from A. Armour, Freedom oflnfonnation Act Officer, Chi�ago Police Department, to\n\n(September 29, 2020).\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (2 l 7) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: {800) 964-3013 • Fax: (312) 814-3806\n60 l South University Ave., Carbondale, Illinois 6290 I • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fOctober 6, 2020\nPage 2\nAlthough not cited by CPD, section 7.5(cc) ofFOIA2 expressly exempts from\ninspection and copying \"[r]ecordings made under the Law Enforcement Officer-Worn Body\nCamera Act, except to the extent authorized under that Act.\" With respect to disclosure of body\ncamera recordings pursuant to FOIA, section I0-20(b) of the Body Camera Act provides:\n(b) Recordings made with the use of an officer-worn body\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that:\n(I) if the subject of the encounter has a reasonable\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint,\ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or body harm, shall be disclosed in\naccordance with the Freedom of Information Act if:\n(A) the subject of the encounter captured on\nthe recording is a victim or witness; and\n(B) the law enforcement agency obtains\nwritten permission of the subject or the subject's\nlegal representative;\n(2) except as provided in paragraph (I) of this\nsubsection (b), any recording which is flagged. due to the\nfiling of a complaint, discharge of a firearm, use of\nforce, arrest or detention, or resulting death or bodily\nharm shall be disclosed in accordance with the Freedom\noflnformation Act; and\n(3) upon request, the law enforcement agency shall\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. (Emphasis added.)\n\n'\n\n5 ILCS 140/7.5(cc) (West 2018), as amended by Public Acts 101-013, effective June 12, 2019;\n101-027, effective June 25, 2019; 101-081, effective July 12, 2019; 101-221, effective January I, 2020; 101-236,\neffective January I, 2020; 101-375, effective August 16, 2019; 101-377, effective August 16, 2019; 101-452,\neffective January I, 2020; I 01-466, effective January I, 2020; I 01-600, effective December 6, 20 I 9; 101-620,\neffective December 20, 2019.\n2\n\n\fOctober 6, 2020\nPage 3\nReading the Body Camera Act in its entirety, the Attorney General has previously\ndetermined that the Body Camera Act does not flatly prohibit the disclosure of all body camera\nrecordings that have not been flagged. Ill. Att'y Gen. Pub. Acc. Op. No. 19-00 I, issued January\n9, 2019, at 8. Instead, the Attorney General determined that the General Assembly intended\nsection 10-20(b)(3) ofthe Body Camera Act to permit both a subject ofthe recording and the\nofficer, and their legal representatives, to obtain a copy ofthe officer-worn body camera\nrecording in accordance with FOIA, regardless ofwhether or why it had been flagged. Ill. Att'y\nGen. Pub. Acc. Op. No. 19-001, issued January 9, 2019, at 10.\nThe Public Access Bureau has construed the \"subject ofthe encounter\" for\npurposes ofthe Body Camera Act as the person who appeared in the recording and \"interacted\nwith a law enforcement officer in the course ofa law enforcement activity.\" lll. Att'y Gen. PAC\nReq. Rev. Ltr. 48793, issued August 31, 2017, at 4 (concluding that a police officer who was not\ncaptured on the body camera recordings at issue, but whose conduct was discussed on the\nrecordings, was not authorized to receive copies ofthe recordings under section 10-20(b)(3) of\nthe Body Camera Act because the officer \"[d]id not appear on the recordings.\"). Further, this\noffice has previously determined that non-flagged officer-worn body camera recordings related\nto a traffic accident were not required to be disclosed to the injured party or her attorney because\nthe injured party was not captured on the recordings, and therefore, was not_ the subject ofthe\nencounter. lll. Att'y Gen. PAC Req. Rev. Ltr. 57517, issued August I, 2019, at 5-6.\nOn October 5, 2020, in an e-mail with an Assistant Attorney General in the Public\nAccess Bureau, Sergeant Peter Edwards, Commander ofCPD's FOIA Unit, confirmed that the\ncamera recordings you requested have not been flagged. Sgt. Edwards also informed this office\nand that he reviewed the requested recordings and verified that you were not captured on the\nfootage because you were transported by ambulance prior to the officers' arrival at the scene.\nTherefore, as discussed above, you are not the \"subject ofthe encounter\" under section I 0-20(b)\nof the Body Camera Act. Additionally, you have not alleged nor provided any information to\nindicate that you are the officer involved in the recording or the officer's legal representative.\nThis office has not received any facts from which it could infer that any ofthe reasons in section\nI 0-20(b)(2) ofthe Body Camera Act that require recordings to be flagged occurred during the\nencounter specified in your FOIA request. Because you are not among the persons who are\nauthorized to obtain copies ofnon-flagged recordings under section 10-20(b)(3) ofthe Body\nCamera Act, CPD did not improperly withhold copies ofthe requested camera recordings you\nseek pursuant to section 7.5(cc) ofFOIA. Accordingly, this office has determined that your\nRequest for Review is unfounded.\n\n\fOctober 6, 2020\nPage 4\n\nIf you have questions, you may contact me at sbamaby@atg.state.il.us or (3 I 2)\n550-4480. This letter serves to close this file.\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n65010 funfpd\ncc:\n\nVia electronic mail\nMs. Dana O'Malley\nAssistant General Counsel\nOffice of Legal Affairs\nChicago Police Department\n3510 South Michigan Avenue, 5th Floor\nChicago, Illinois 60653- I 020\npacola@chicagopolice.org\n\n\f"}
{"id":1491,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2021,"date_issued":"2021-08-24","case_number":null,"request_numbers":["66759"],"title":"Sandwich Police Department improperly withheld incident report under 7.5(bb) for juvenile suspects","filename":"66759, issued August 24, 2021.pdf","rel_path":null,"word_count":1872,"summary":"A requester sought police reports related to incidents at Edgebrook Golf Course. The PAC determined that the Sandwich Police Department improperly withheld the entire incident report but could redact juvenile identifying information under section 7.5(bb) and other identifying information under section 7(1)(d)(iv).","plain_summary":"Under FOIA, a public body must disclose records unless a specific exemption applies. Here, the Department claimed the entire report was exempt under section 7.5(bb) because it involved juvenile suspects. However, the PAC reasoned that the exemption only protects information that is prohibited from disclosure by the Juvenile Court Act, which does not categorically exempt all records involving juveniles. The decisive fact was that the incident report contained information that could be disclosed after redacting the juveniles' identifying details. Therefore, the Department was required to release the report with appropriate redactions, not withhold it entirely.","holding":"The Sandwich Police Department improperly withheld the requested police report in its entirety.","legal_question":"Whether a police department may withhold an entire incident report under FOIA exemption 7.5(bb) solely because it involves juvenile suspects.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7.5(bb)","5 ILCS 140/7(1)(d)(iv)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(bb)","7(1)(d)(iv)"],"public_body":"Sandwich Police Department","requesting_party":null,"pac_outcome":"Improperly withheld records in part","pac_law_type":null,"subject_category":"police records","subject_description":"Police reports and records related to criminal complaints involving a golf course and juvenile suspects.","ocr_status":"ok","ocr_quality":85.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/66759, issued August 24, 2021.pdf","sha256":"f77a3ed1854dfe927a7d9e08c6ab9c501d824641d480ab42e9c2690691bf1459","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["police report","juvenile records","redaction","exemption 7.5(bb)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports on juvenile suspects at a golf course","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66759/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAMERAOUL\nATTORNEY GENERAL\n\nAugust 24, 2021\n\nVia electronic mail\n\nVia electronic mail\nMs. Wendy Flowers\nFOIA Officer\nSandwich Police Department\n308 East College Street\nSandwich, Illinois 60548\nwflowers@sandwi ch. i1. us\n\nRE: FOIA Request for Review-2021 PAC 66759\nDear\n\nnd Ms. Flowers:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Sandwich P ~ e p a r t m e n t ) improperly\nwithheld certain portions of the records responsive t o - J a n u a r y 27, 2021,\nFOIA request.\nOn that date,\nsubmitted a FOIA request to the Department seeking\ncopies of all police reports, complaints, and other records related to any criminal complaints,\narrests, or police calls involving the Edgebrook Golf Course between September 15, 2020, and\nSeptember 21, 2020. On January 28, 2021, the Department responded that it had identified\nIncident 2020-00614 as responsive to the request. The Department denied the request, however,\nciting section 7.5(bb) ofFOIA, which exempts from disclosure \"[i]nformation which is or was\n\n500 South Second Street, Springfield, Illinois 6270 I • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Ch icago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n60 I South University Ave. , Carbondale, Illinois 6290 I • (6 I 8) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\f111!11!\nAugust 24, 2021\nPage 2\n\nprohibited from disclosure by the Juvenile Court Act of 1987 [(JCA)].\" 1 The Department\nasserted that three juvenile suspects were investigated in connection with the incident.\nOn January 28, 2021, this office received\nRequest for Review\ncontesting the Department's denial. He asserted that he was the parent of one of the juveniles\ninvolved in the incident at issue and therefore the exception to the JCA permitting parents of\njuvenile suspects access to law enforcement records concerning their child authorized him to\nhave copies of the records. He noted that the Department could redact any personal information\nconcerning the other juveniles.\nOn February 4, 2021, this office forwarded a copy of the Request for Review to\nthe Department and asked it to provide copies of the withheld records for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of the asserted exemption. On February 4, 2021, and February 10, 2021, this office\nreceived the requested materials. On February 17, 2021, this office forwarded a copy of the\nDepartment's answer to\n; he submitted a reply that same day.\nDETERMINATION\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390,415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,\n407 (1997).\nAs noted above, section 7.5(bb) ofFOIA exempts from disclosure \"[i]nformation\nwhich is or was prohibited from disclosure by the\" JCA. Section 1-7(A) of the JCA (705 ILCS\n405/1-7(A) (West 2020)) provides:\nAll juvenile records which have not been expunged are\nconfidential and may never be disclosed to the general public\nor otherwise made widely available. Juvenile law enforcement\nrecords may be obtained only under this Section and Section 1-8\nand Part 9 of Article V of this Act, when their use is needed for\ngood cause and with an order from the juvenile court, as required\n1\n\n5 ILCS 140/7. S(bb) (West 2020).\n\n\f...\nAugust 24, 2021\nPage 3\n\nby those not authorized to retain them. Inspection, copying, and\ndisclosure of juvenile law enforcement records maintained by\nlaw enforcement agencies or records of municipal ordinance\nviolations maintained by any State, local, or municipal agency\nthat relate to a minor who has been investigated, arrested, or\ntaken into custody before his or her 18th birthday shall be\nrestricted to the following[.] (Emphasis added.)\nThis provision then enumerates the classes of persons permitted access to juvenile law\nenforcement records. Among those classes, the JCA authorizes access to \"the minor who is the\nsubject of the juvenile law enforcement record, his or her parents, guardian, and counsel.\"\n(Emphasis added.) 705 ILCS 405/ 1-7(A)(0.05) (West 2020). In accordance with that JCA\nprovision, the Public Access Bureau has previously determined that \"records that relate to minors\nwho have been investigated, arrested, or taken into custody are confidential and generally cannot\nbe disclosed without an order from a juvenile court unless the individual requesting the records is\namong the classes of persons specifically listed as being permitted access to those records.\" Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 58545, issued June 26, 2019, at 2.\nIn its response to this office, the Department maintained that the JCA prohibited it\nfrom disclosing the responsive records because the incident involved minors under the age of the\n18 who were investigated for certain alleged crimes. In particular, the Department stated that the\ninvestigation involved alleged criminal damage to property and underage drinking. The\nDepartment contended that a l t h o u g ~ s o n was involved in the incident, \"there are\ntwo (2) other juveniles on the report that were investigated.\"2\nIn reply to that answer, ~ a i n t a i n e d that, as a parent of one of the\njuveniles, the JCA expressly permitted him access to the incident report. He questioned the\nDepartment's interpretation of the JCA's confidentiality provision: \"Under their logic, all the\npublic body has to do is name more ~ n i l e in a report and a parent of one of the\nsubject juveniles can never see it?\" 3 expressed skepticism that \"that's what the\nlegislature had in mind when they wrote this section. \"4\nIt is a fundamental principle of statutory construction that different sections of the\nsame statute should be read together and construed harmoniously. Collinsville Community Unit\n2\n\nE-mail from Wendy Flowers, Supervisor Support Services, Sandwich Police Department, to\nTeresa [Lim] (February 10, 2021).\n3\n\nE-mail f r o m - t o [Teresa] Lim (February 17, 2021).\n\n4\n\nE-mail f r o m - t o [Teresa] Lim (February 17, 2021).\n\n\flll!l!s\nAugust 24, 2021\nPage 4\n\nSchool District No. 10 v. Regional Board of School Trustees of St. Clair County, 218 Ill. 2d 175,\n185-86 (2006). \"Each word, clause, and sentence of a statute must be given a reasonable\nmeaning, if possible, and should not be rendered superfluous.\" People v. Gutman, 2011 IL\n110338, ,r12, 959 N.E.2d 621, 624 (2011). \"When a general statutory provision and a more\nspecific one relate to the same subject, we will presume that the legislature intended the more\nspecific statute to govern.\" Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 346 (2008). In\nconstruing a statute, the primary goal is to ascertain and give effect to the intent of the General\nAssembly. Wisnasky-Bettorf v. Pierce, 2012 IL 111253, i-116, 965 N.E.2d 1103, 1106 (2012).\n\nThe intent of the JCA is \"to protect the privacy of minors and allow them to lead\nresponsible and productive lives unencumbered by public records of their criminal conduct.\"\nNBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Dep't, 2019 IL App (1st) 181426, i-130, 145\nN.E.3d 70, 79 (2019). Section l-7(A) effectuates this intent by generally prohibiting disclosure\nof juvenile law enforcement law records, subject to a number of specific exceptions. As\ndiscussed above, section 1-7(A)(0.05) of the JCA specifically permits the parents of minors who\nare the subjects of the juvenile law enforcement records to access those records. This provision\ndoes not exclude parents from accessing juvenile law enforcement records because the subjects\ninclude minors in addition to their own children. Construing the JCA as a whole, sections 1-7(A)\nand 1-7(A)(0.05) may be read harmoniously to permit parents of minor subjects of juvenile law\nenforcement investigations to access portions of the records that concern their own children with\nredactions of the names and identifying information of other minor subjects.\nHaving reviewed the withheld incident report, together with the Department's\nresponse, this office has confirmed ~ m e n t investigated an incident involving three\njuvenile suspects, one of whom w a ~ m i n o r son. Most of the report focuses on the\nother two juveniles, and a limited part of the report discusses all three juveniles. Construing the\nJCA as a whole and in light of the intent of the Act, this office has determined that disclosure of\nthese portions of the report would necessarily reveal details concerning the Department's\ninvestigation of the other two juveniles. Therefore, the JCA prohibits the disclosure tollll\n- o f these portions of the report.\nHowever, this office also has determined that certain parts of the incident report\ncenter on the Department's investigation of\nson. Further, the case supplemental\nreport documents the Department's interaction w i t h _ , not any juveniles. As\ndiscussed above, the JCA permits parents of a juvenile who is being investigated to access\nrecords concerning that juvenile. The Department has not demonstrated that the report cannot be\nredacted to protect t h e ~ of the other minor subjects while disclosing the portions\nthat pertain directly t ~ n d his son. Accordingly, this office concludes that the\nDepartment has not sustained its burden of showing by clear and convincing evidence that the\nincident report is exempt from disclosure in its entirety pursuant to section 7.5(bb) of FOIA.\n\n\fMs. Wendy Flowers\nAugust 24, 2021\nPage 5\n\nThis office requests that the Department p r o v i d e ~ i t h a copy of\nthe incident report that discloses the following information in the narrative:\n•\n•\n•\n\nFirst two paragraphs and the last three sentences on page 5;\nFourth and last two paragraphs on page 6; and\nPage 7.\n\nThis office also requests that the Department p r o v i d e ~ i t h copies of the case\nsupplemental report and photos. Pursuant to section 7(1)(d)(iv) ofFOIA,5 the Department may\nredact from the incident and case supplemental reports the names and other identifying\ninformation of any individuals who provided information to the Department. It may also redact\nthe names and other identifying information of the other two juveniles pursuant to section\n7.5(bb ). The remaining documents that the Department provided for this office's confidential\nreview may be withheld pursuant to section 7 .5(bb ).\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n66759 f 75bb proper improper pd\n\n5\n\n5 ILCS 140/7(l)(d)(iv) (West 2020).\n\n\f"}
{"id":1492,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2022,"date_issued":"2022-01-05","case_number":null,"request_numbers":["68694"],"title":"Rock Island Police Department properly redacted witness identities under 7(1)(d)(iv)","filename":"68694, issued January 5, 2022.pdf","rel_path":null,"word_count":1033,"summary":"The requester sought police reports and dashboard camera recordings related to herself and two other named individuals. The PAC determined that the Rock Island Police Department properly redacted information under FOIA exemption 7(1)(d)(iv) to protect the identities of complainants, victims, or witnesses, and properly stated it had no responsive dashboard camera recordings.","plain_summary":"Under FOIA, section 7(1)(d)(iv) allows a public body to withhold information that would reveal the identity of a complainant, victim, or witness. Here, the Department redacted portions of the records that would identify which involved party provided specific information. The PAC found that because disclosing the redacted statements and corresponding names would reveal the source of the information, the Department properly applied this exemption. The PAC also noted that it was unnecessary to review the additional exemption cited (7(1)(c)) because the contested information clearly fell within the scope of 7(1)(d)(iv).","holding":"The Rock Island Police Department did not improperly respond to the FOIA request.","legal_question":"Whether the Rock Island Police Department properly redacted information under FOIA exemption 7(1)(d)(iv) to protect the identities of complainants, victims, or witnesses.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(d)(iv)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(iv)"],"public_body":"Rock Island Police Department","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"Police reports and dashboard camera recordings related to a custody dispute.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/68694, issued January 5, 2022.pdf","sha256":"f76a18668d9752068d1e7a9f8496c01782bb347ca4635c1abcd3f92638f0a67e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["police report","redaction","complainant identity","exemption 7(1)(d)(iv)","custody dispute"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and dashcam footage in a custody dispute","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68694/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJanuary 5, 2022\n\nVia electronic mail\nMr. Jason Foy\nFOIA Officer\nRock Island Police Department\n1212 Fifth Avenue\nRock Island, Illinois 61201\nfoy.j ason@rigov.org\nRE: FOIA Request for Review - 2021 PAC 68694\nDear\n\nnd Mr. Foy:\n\nThis determination is issued pursuant to section 9.5(f) ofthe Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2020)). For the reasons stated below, the\nPublic Access Bureau concludes that the Rock Island Police Department (Department) did not\nimproperly respond to\nJune 1, 2021, FOIA request.\nOn that date,\nsubmitted a FOIA request to the Department\nseeking copies ofreports regarding her and two other named individuals since April 19, 2021,\nalong with any dashboard camera recordings showing an incident that occurred on April 30,\nwith copies of\n2021. On June 2, 2021, the Department responded by providing\nrecords with certain redactions pursuant to section 7(1)(d)(iv) ofFOIA (5 ILCS 140/7(1)(d)(iv)\n(West 2020)). The Department stated that it would not disclose information that would reveal\nthe identity ofany complainant, victim, or witness. The Department also stated that it did not\n\n\fMr. Jason Foy\nJanuary 5, 2022\nPage 2\n\npossess any responsive dashboard camera recordings.\nsubsequently submitted\nthe above-referenced Request for Review contesting the Department's redaction of the\nresponsive records. 1 She stated that the request relates to a custody battle, and that the parties\nnamed in her request are her ex-husband and his girlfriend.\nOn December 6, 2021, the Public Access Bureau forwarded a copy 0£111111\nRequest for Review to the Department and asked it to provide this office with\nunredacted copies of any responsive records for this office's confidential review, together with a\ndetailed description of the applicability of section 7(1)(d)(iv) ofFOIA. On December 20, 2021,\nthis office received those materials from the Department; the Department also provided •\nwith a copy of its response letter. The Department cit�) ofFOIA (5\nILCS 140/7(1)(c) (West 2020)) in addition to section 7(1)(d)(iv). -replied\ndirectly to the Department on December 20, 2021, and provided a supplemental reply to this\noffice the following day.\nDETERMINATION\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\nlimited to alleged violations ofFOIA and the Open Meetings Act (5 ILCS 120/1 et seq. (West\n2020)). See 15 ILCS 205/7(c)(3) (West 2020). FOIA governs the disclosure of existing public\nrecords; it does not govern the issues\nraised other than whether the redacted\ninformation is exempt from disclosure. Accordingly, this determination letter is limited to that\nissue.\nSection 7(1)(d)(iv) of FOIA\nIn its response to this office, the Department maintained that it properly redacted\ninformation pursuant to section 7(1)(d)(iv) ofFOIA, which exempts from disclosure information\nin law enforcement records to the extent that disclosure would \"unavoidably disclose the identity\nof a confidential source, confidential information furnished only by the confidential source, or\npersons who file complaints with or provide information\" to law enforcement agencies. Where\nsubmitted the above-referenced Request for Review to the Public Access Bureau\nvia e-mail on June 3, 2021. However, because of a breach to the Attorney General's Office's computer network, this\noffice did not receive her Request for Review at or close to the time it was submitted.\n\n\fMr. Jason Foy\nJanuary 5,2022\nPage 3\n\nthe disclosure of a witness statement would unavoidably identify a person as having provided\nthat information to law enforcement even if personally-identifying details such as the name and\ncontact information of the witness was redacted, the contents of the witness statement generally\nmay be redacted. Copley Press Inc. v. City ofSpringfield, 266 Ill. App. 3d 421,426 (4th Dist.\n1994).\ntated that she already knows the\nIn her reply to the Department,\nidentities of the individuals who filed the incident report. ••••••argued that the\nallegations against her are false,and stated that she would like unreda�reports\nso she can legally dispute these allegations. In her reply to this office­\nquestioned whether the involved parties qualify as \"confidential sources\" for purposes of section\nalso argued that the involved parties should not be entitled to\n7(1)(d)(iv).\nprivacy because they have violated a court order.\nThis office's review of the unredacted copies of the incident reports confirmed\nthat the Department redacted the contents of statements made to law enforcement by\ncomplainants,witnesses,or alleged victims,and their identifying information. These statements\ncontained the perspectives of these involved individuals and allegations regarding the behavior\nof other involved parties. The plain language of the exemption encompasses not just\n\"confidential sources\" b�who file complaints with or provide information\" to law\nenforcement. Although� argued that her interest in obtaining the records\noutweighs the involved individuals' privacy rights,the requester's interest in disclosure does not\nimpact the applicability of the section 7(1)(d)(iv) exemption. 2 Because the disclosure of the\nredacted portions of the statements and the corresponding names and contact information would\nidentify which involved party provided which pieces of information to the Department,this\noffice concludes that the Department did not improperly redact this information.\n\n2\n\n1n contrast, section 7( l )(c) ofFOIA, which protects personal information from disclosure,\nconsiders whether \"the subject's right to privacy outweighs any legitimate public interest in obtaining the\ninformation.\" Although the Department additionally cited section 7(l)(c) in its response to this office, it is\nunnecessary for this office to review the applicability of the exemption because the contested information falls\nwithin the scope of section 7(1 )(d)(iv).\n\n\fMr. Jason Foy\nJanuary 5, 2022\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e-mail at\njane.stemecky@ilag.gov. This letter serves to close this file.\nVery truly yours,\n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n68694 f 71div proper pd\n\n\f"}
{"id":1493,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2023,"date_issued":"2023-12-19","case_number":null,"request_numbers":["79328"],"title":"Kendall County Technology Services Department: judicial records held by FOIA-subject body not subject to disclosure","filename":"79328, issued December 19, 2023.pdf","rel_path":null,"word_count":964,"summary":"The requester sought emails between the Kendall County Circuit Clerk and a law firm from the Technology Services Department, but the PAC determined no further action was warranted because the Circuit Clerk's Office is part of the judiciary and not subject to FOIA, and records of its business are not public records even if held by another public body.","plain_summary":"FOIA applies only to records of public bodies, and the judiciary is explicitly excluded from the definition of a public body. Even though the records were held by a FOIA-subject department, they were created and used for the Circuit Clerk's judicial functions, so they remain judicial records outside FOIA's scope. The public interest in disclosure or the fact that public funds were involved does not override this threshold exclusion; the records must first qualify as public records under FOIA. Therefore, the PAC closed the file without requiring disclosure.","holding":"The PAC determined that no further action is warranted because the requested records pertain to the judiciary and are not public records under FOIA.","legal_question":"Are records of a judicial office, held by a separate FOIA-subject public body, subject to disclosure under FOIA?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2","5 ILCS 140/2.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Kendall County Technology Services Department","requesting_party":null,"pac_outcome":"No further action warranted","pac_law_type":null,"subject_category":"judicial records","subject_description":"Emails between a circuit court clerk and a law firm regarding a contract, held by a county technology department.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_a/79328, issued December 19, 2023.pdf","sha256":"35a75e44d3c0cc47a2e617a3a2b69c3bf40831d18efbda92fa8f10ab4cba8c98","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["judicial records","public body","FOIA exemption","circuit clerk","public funds"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A county technology department's emails about a contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-79328/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 19, 2023\n\nVia electronic mail\n\nRE: FOIA Request for Review - 2023 PAC 79328\nDear-:\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted in this matter.\nOn December 11, 2023, you submitted a FOIA request to the Kendall County\nTechnology Services Department (Department) seeking copies of \"any electronic\ncommunications, including but not limited to, emails and texts between Circuit Court Clerk\nMatthew Prochaska and the law firm Harris & Harris, including its principals during the time\nframe of July I-July 31, 2023.\" 1 Later that same day, the Kendall County Circuit Clerk's Office\n(Circuit Clerk's Office) responded, asserting that as a member of the judiciary, it was not subject\nto the requirements of FOIA. On December 12, 2023, you submitted this Request for Review\ncontesting that response. In particular, you contend that your FOIA request was directed to the\nDepartment, which is not a member of the judiciary but rather is a public body subject to the\nrequirements of FOIA. You also argue that disclosure of the requested information, which\npertains to a signed contract between the Circuit Clerk's Office and a private entity, is of\nsignificant public interest because it concerns the use of public funds.2\nFOIA governs requests for public records maintained by public bodies. See 5\n\n1\n\n11, 2023).\n\nFOIA request fro\n\nto \"Web_Email_Technology@kendallcountyil.gov\" (December\n\n2Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2022)) provides that \"[a]ll records relating to the\n\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\nrecords subject to inspection and copying by the public.\"\n\n500 South Second Street, Springfield, lllinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fDecember 19,2023\nPage 2\n\nILCS 140/1 (West 2022). Section 2(c) ofFOIA (5 ILCS 140/2(c) (West 2022)) defines \"public\nrecords\" as \"all records*** pertaining to the transaction of public business,regardless of\nphysical form or characteristics,having been prepared by or for,or having been or being used\nby,received by,in the possession of,or under the control of any public body.\" Section 2(a) of\nFOIA (5 ILCS 140/2(a) (West 2022)) defines a \"public body\" as:\n[A]ll legislative,executive,administrative,or advisory bodies of\nthe State,state universities and colleges,counties,townships,\ncities,villages,incorporated towns,school districts and all other\nmunicipal corporations,boards,bureaus,committees,or\ncommissions of this State,any subsidiary bodies of any of the\nforegoing including but not limited to committees and\nsubcommittees thereof,and a School Finance Authority created\nunder Article 1E of the School Code. \"Public body\" does not\ninclude a child death review team or the Illinois Child Death\nReview Teams Executive Council established under the Child\nDeath Review Team Act.\nBased on that definition,the Illinois Appellate Court has determined that FOIA is\nnot applicable to the judiciary or its agents. Newman, Raiz & Shelmadine, LLC v. Brown, 394\nIll. App. 3d 602 (2009) (the office of the Circuit Clerk being a part of the judicial branch is\nexcluded from the definition of a \"public body\" as it is defined in section 2(a) ofFOIA); see also\nCopley Press, Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548 (2d Dist. 1995).\nIt is undisputed that you seek electronic correspondence sent to and received by\nthe Circuit Clerk's Office. You contend that the records are subject to FOIA because the\nDepartment,as the County's apparent custodian of electronic information,is subject to FOIA and\npresumably possesses the requested records in the ordinary course of its business. When\ninterpreting a statute,however,\"[i]t is always presumed that the legislature did not intend to\ncause absurd,inconvenient,or unjust results.\" People v. Garcia, 241 Ill. 2d 416,421 (2011). To\npermit members of the public to obtain records of the judiciary that are not otherwise subject to\nFOIA merely because those records are hosted on e-mail servers managed by a shared\ninformation technology department would lead to an absurd result that is contrary to plain\nlanguage ofFOIA,which excludes the judiciary from its requirements. Accordingly,the Public\nAccess Bureau has previously determined that e-mails in the possession of a county information\ntechnology department that were sent or received from members of the judiciary pertain to the\ntransaction of the business of the judiciary,which is not a public body subject to the disclosure\nrequirements ofFOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 74783,issued October 18,2021,at 3.\nSimilarly,because the records you seek pertain to the transaction of the business of the Circuit\nClerk's Office,which is an agent of the judiciary,those records are not subject to the\nrequirements ofFOIA despite presumably being maintained on the Department's e-mail servers.\n\n\fDecember 19, 2023\nPage 3\n\nLikewise, the public interest in disclosure of the contract and the requirements of section 2.5 of\nFOIA3 are not relevant to this matter because the records are not \"public records\" as defined by\nFOIA in the first place. Accordingly, this office has determined that no further action is\nwarranted in this matter.\nThis letter serves to close this file. If you have future questions concerning the\nrequirements of FOIA, please contact me at the Springfield address on the first page of this letter.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Counselor\nPublic Access Bureau\n79328 f not a pb\n\n3 \"All records relating to the obligation, receipt, and use of public funds of the State, units\n\noflocal government, and school districts are public records subject to inspection and copying by the public.\" 5\nILCS 140/2.5 (West 2022).\n\n\f"}
{"id":1494,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-08-21","case_number":null,"request_numbers":["82136"],"title":"Hawthorn Woods Police Department improperly redacted parts of a DUI arrest report","filename":"82136, issued August 21, 2024.pdf","rel_path":null,"word_count":2909,"summary":"A requester sought a police report regarding a DUI arrest; the Hawthorn Woods Police Department redacted portions under FOIA exemptions 7(1)(a), (b), and (c). The PAC determined the Department improperly redacted the driver's statements and officer conduct, but properly redacted unique identifiers, dates of birth, height, and weight.","plain_summary":"A public body must prove by clear and convincing evidence that an exemption applies. The police department redacted a DUI arrest report under 7(1)(a) (information prohibited from disclosure by other law, here the Juvenile Court Act), 7(1)(b) (private information), 7(1)(c) (personal privacy) and 7(1)(d)(iv) (identity of persons who provide information to law enforcement). The PAC accepted redactions of items expressly defined as private information, such as unique identifiers, and of the minor's name and the arrestee's date of birth, height and weight under 7(1)(c), but rejected the Juvenile Court Act claim because the report did not concern a minor's investigation or arrest. It also found the other redactions, including the arrestee's statements, were not covered, so the department had to provide a new copy with only the proper redactions.","holding":"The Department improperly redacted the arrestee's statements and other non-exempt portions of the police report, while properly redacting private identifiers, a minor's information, and the arrestee's date of birth, height and weight.","legal_question":"Whether the Hawthorn Woods Police Department properly redacted a DUI arrestee's statements and officer conduct from a police report under FOIA exemptions 7(1)(a), 7(1)(b), and 7(1)(c).","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(d)(iv)"],"public_body":"Hawthorn Woods Police Department","requesting_party":"Mr. Patrick T. Brankin","pac_outcome":"Partial violation – improper redactions of driver statements and officer conduct; proper redactions of unique identifiers, dates of birth, height, and weight.","pac_law_type":null,"subject_category":"police records","subject_description":"A police report concerning a DUI arrest and impoundment of a vehicle.","ocr_status":"ok","ocr_quality":92.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/82136, issued August 21, 2024.pdf","sha256":"418a28fb2193ee740be83ec876c3424c31d06e69d92a70de665ba4af31bde695","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["police report","DUI arrest","redactions","exemption 7(1)(c)","law enforcement records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A police report of a DUI arrest and vehicle impoundment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-82136/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust 21, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Patrick T. Brankin\nPartner\nSchain Banks\n70 West Madison Street, Suite 5400\nChicago, Illinois 60602\npbrankin@schainbanks.com\nRE: FOIA Request for Review - 2024 PAC 82136\nand Mr. Brankin:\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons that follow, the\nPublic Access Bureau concludes that the Hawthorn Woods Police Department (Department)\nimproperly redacted information responsive to\n-FOIA request.\n\n■■■■■■■\n\nOn or around July 8, 2024, - submitted a FOIA request to the\nDepartment seeking a copy of the police report that led to a named person being arrested for\ndriving under the influence and his car being impounded. On July 9, 2024, the Department\nprovided him with a copy of the police report but redacted information pursuant to sections\n7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. 1 On July 10, 2024, _ submitted a Request for\nReview contesting the extent of the redactions. He stated:\n\n5 ILCS 140/7(l)(a), (l)(b), (l)(c) (West 2023 Supp.), as amended by Public Act I 03-605,\neffective July 1, 2024.\n1\n\n500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fMr. Patrick T. Brankin\nAugust 21, 2024\nPage 2\nI am requesting a complete copy instead of the partially\nredacted report I received. The Police report 2024-090088 details\nthe arrest of Katelyn Cerniglia. She was driving my daughter to\npreschool while under the influence of alcohol.\nI need the complete copy that clearly shows that my\ndaughter was in the car with her. I am trying to win back custody.\nThe complete copy is for my attorney. Please provide the complete\ncopy so I can win back primary custody so my daughter can live\nwith me and be in a safe environment. [2l\nOn July 15,2024, this office forwarded a copy of the Request for Review to the\nDepartment and asked it to provide an unredacted copy of the responsive report for this office's\nconfidential review, together with a detailed explanation of the factual and legal bases fo r the\napplicability of the asserted exemptions. On July 16,2024, this office received those materials.\nThe Department explained that the law it asserted in conjunction with section 7(1)(a) of FOIA is\nthe Juvenile Court Act of 1987 (JCA) (705 ILCS 405/1-1 et seq. (West 2022)), and that it also\nredacted the arrestee's statements to the police pursuant to section 7(1)(d)(iv) of FOIA. The\nfollowing day, this office forwarded a copy of the Department's answer to - and\nnotified him of his opportunity to submit a reply. He did not do so.\nDETERMINATION\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department ofPublic Health, 218 Ill. 2d 390,415 (2006). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022).\nAs a threshold matter, the Department stated that \"the Requestor has provided no\ninformation to the Village to verify his identity or his relationship to the arrestee or the juvenile\nvictim who is named in the report. \" This office has not received information suggesting that\ndid identify his relationship to the driver and minor involved in the incident in his\nsubmission to the Department. Accordingly, the Department's response must be evaluated as\nthough the request was submitted by a third party with no personal connection to the parties\ninvolved in the incident.\n2\n\n10, 2024).\n\nE-mailfrom-to Public Access Counselor (Office of the Attorney General) (July\n\n5 ILCS 140/7(1)(d)(iv) (West 2023 Supp.), as amended by Public Act 103-605, effective July 1,\n\n3\n\n2024.\n\nE-mailfrom PatrickT. Brankin, Village Attorney, to Joshua Jones, Deputy Bureau Chief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 16, 2024), at 1.\n4\n\n\fMr. Patrick T. Brankin\nAugust 21, 2024\nPage 3\nSection 7(1)(a) of FOIA\nSection 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" The JCA is a State law that restricts the disclosure of juvenile law enforcement\nrecords. 705 ILCS 405/1-7 (West 2023 Supp.) (restricting disclosure of \"juvenile law\nenforcement records maintained by law enforcement agencies or records of municipal ordinance\nviolations maintained by any State, local, or municipal agency that relate to a minor who has\nbeen investigated, arrested, or taken into custody before the minor's 18th birthday\" to specifically\nenumerated official parties). Section 7.5(cc) of FOIA5 more specifically exempts from\ndisclosure \"[r]ecordings made under the Law Enforcement Officer-Worn Body Camera Act,\nexcept to the extent authorized under that Act.\"\nThe Department argued:\nUnder the interplay between Section 7(1)(a) and the Juvenile Court\nAct, law enforcement records related to instances when a minor is\nthe subject of an investigation, arrest, or custodial detention are\nexempt from disclosure under FOIA. [Citation.] The responsive\nrecords contain substantial amounts of personal identifying\ninformation of the minor victim, as well as statements made by the\nminor victim, during the investigation. [61\nThe Department's description of the police report is inaccurate; it does not contain\nany statements by a minor victim, and the minor's identifying information is discrete and easily\nsegregable. In any event, the report does not concern the investigation, arrest, or custodial\ndetention of a minor, and the Department did not explain why the JCA would apply outside of\nthose circumstances. Nonetheless, as discussed below, the minor's name is exempt from\ndisclosure under section 7(1)(c).\nSection 7(1)(b) of FOIA\nSection 7(1)(b) of FOIA provides that \"[p]rivate information\" is exempt from\ndisclosure \"unless disclosure is required by another provision of this Act, a State or federal law\nor a court order.\" Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2023 Supp.)) defines\n\"private information,\" in relevant part, as:\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\n5 ILCS 140/7.5(cc) (West 2023Supp.), as amended by Public Acts 103-592, effective June 7,\n2024; 103-605, effective July 1, 2024; 103-636, effective July 1, 2024.\n5\n\nE-mail from P atrickT. Brankin, Village Attorney, to Joshua Jones, Deputy Bureau Ch ief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 16, 2024), at 2.\n6\n\n\fMr. Patrick T. Brankin\nAugust 21, 2024\nPage 4\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person.\nIn its answer to the Request for Review, the Department stated:\n[T]he plain language of Section 7(1)(b) undoubtedly covers a great\ndeal of information contained in the responsive records. More\nspecifically, and as discussed at length above, essentially all of the\ninformation contained in the responsive records can be categorized\nas either: (1) personal identity information of the minor victim and\nthe witnesses interviewed by the Village or (2) statements made by\nwitnesses or minors which are entitled to a reasonable expectation\nof privacy and which could potentially identify them and result in\nthe release of personal information even if redacted. All of this\ninformation is protected from disclosure by Section 7(1)(b).Pl\nThe responsive report contains certain items that are expressly defined as forms of\n\"private information,\" particularly a driver's license number, home or personal telephone\nnumber, and home address. Therefore, the Department did not improperly redact tha t\ninformation. In contrast, the remaining information in the report does not meet the definition of\n\"private information.\" In particular, there is no statutory basis for the claim that witness\nstatements are exempt from disclosure under section 7(1)(b).\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\"\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) also provides that \"[t]he disclosure of information that bears on\nthe public duties of public employees and officials shall not be considered an invasion of\npersonal privacy.\"\nA public body's assertion that the release of information would constitute a clearly\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union I 30 v. Department ofPublic Health, 327 Ill. App. 3d 192,\nE-mail from PatrickT. Brankin, Village Attorney, to Joshua Jones, Deputy Bureau Ch ief, Public\nAccess Bureau, Office of the Illinois Attorney General (July 16, 2024), at 2-3.=\n7\n\n\fMr. Patrick T. Brankin\nAugust 21,2024\nPage 5\n196 (2001). The phrase \"clearly unwarranted invasion of personal privacy\" evinces a strict\nstandard to claim the exemption,and the burden is on the public body having charge of the\nrecord to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill.\nApp. 3d 198,202 (1994).\nIn its answer to this office,the Department asserted:\nThe Requestor has not provided written consent for\ndisclosure of any of the minor's information,nor has he provided\nany information proving his interest in the requested records or the\npublic's interest in the requested records. Even if the Requestor\ndoes eventually articulate his or the public's interest in the\nresponsive records,it is hard to imagine how that individual or\npublic interest could outweigh the privacy interests of the minor.\n[Citation.] For these reasons,the Village's denial of the request\nunder Section 7(1)(c) should stand .[8 1\nWhile a victim's name and other identifying information is exempt from\ndisclosure under section 7(1)(c),the Department's repeated reliance on the minor's privacy\ninterests for the redactions to the information concerning the adult arrestee is misplaced; the\nminor did not provide any statements and the minor's identifying information is readily amenable\nto redaction. The bulk of the redacted information consists of statements made by the driver in\nresponse to police questioning immediately prior to her arrest and descriptions of related\nactivities by the police. This office has issued a binding opinion concluding that the basic facts\nof arrests are generally a matter of public interest. Ill. Att'y Gen. Pub. Acc. Op. No. 12-006,\nissued March 16,2012,at 7. There is a legitimate public interest in the circumstances\nsurrounding arrests for driving under the influence due to the impact of the offense on the public,\nand the arrestee does not have privacy interests in the information reflecting the Department's\nbasis for her arrest that overcome that public interest. Accordingly,while the Department did\nnot improperly redact dates of birth,the minor's identifying information,and the arrestee's height\nand weight as a clearly unwarranted invasion of personal privacy pursuant to section 7(1)(c),the\nDepartment did not demonstrate that the remaining information concerning the interaction\nbetween the driver/arrestee and police is exempt from disclosure.\nSection 7(1)(d)(iv) of FOIA\nSection 7(1)(d)(iv) of FOIA allows a law enforcement agency to redact or\nwithhold public records only to the extent that disclosure would \"unavoidably disclose the\nidentity of a confidential source,confidential information furnished only by the confidential\nsource,or persons who file complaints with or provide information to administrative,\ninvestigative,law enforcement,or penal agencies[.]\"\nE-mail from PatrickT. Brankin, Village At torney, to Joshua Jones, Deputy Bureau Ch ief, Public\nAccess Bureau, Office of the Illinois At torney General (J uly 16, 2024), at 3.\n8\n\n\fMr. Patrick T. Brankin\nAugust 21, 2024\nPage 6\nIn defense of the applicability of section 7(1)(d)(iv), the Department argued:\nThe information in the records contains information from\npersons who provided statements to law enforcement is\nspecifically exempt under the plain language of Section 7(1)(d)(iv)\nbecause, in this instance, they provided statements to the Village\nin connection with a law enforcement investigation. [Citation.]\nFurther, because the information provided by these sources\nis inextricably intertwined with all of the information and\nstatements in the responsive records, the Village's a [sic] blanket\ndenial was proper - yet the Village provided a partially redacted\nReport.(91\nThe Department's argument that it could have issued a blanket denial of•·\nrequest is erroneous because, as noted above, the incident involved an arrest for\ndriving under the influence. Furthermore, the Department failed to demonstrate that the driver's\nstatements to the police in response to police questioning immediately prior to being arrested fall\nwithin the scope of section 7(1)(d)(iv). The section 7(1)(d)(iv) exemption protects witnesses'\nabilities to provide witness statements to the police in confidence. See Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (2004) (names and\naddresses of beat meeting participants properly redacted because they provided information to\npolice department). In this matter, the alleged \"witness\" statement was provided by the driver\nafter a police officer approached her for questioning pursuant to a dispatch call indicating that\nthe driver appeared to be driving while intoxicated. Because the Department does not claim that\nthe driver is a confidential source or person who filed a complaint, the Department necessarily\nclaims that she falls within the language \"or persons who * * * provide information to * * * law\nenforcement * * * agencies.\"\nIn construing a statute, the primary objective is to ascertain and give effect to the\nintent of the General Assembly. Southern Illinoisan v. Illinois Department of Public Health, 218\nIll. 2d 390, 415 (2006). \"[T]he surest and most reliable indicator of\" legislative intent \"is the\nstatutory language itself, given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343, ,i 24. \"The\nwords and phrases in a statute should be construed in light of other relevant provisions and not in\nisolation.\" People v. Bradford, 2016 IL 118674, ,i 15. A reviewing body \"may consider 'the\nreason for the law, the problems sought to be remedied, the purposes to be achieved, and the\nconsequences of construing the statute one way or another.\"' Better Government Ass'n v. Illinois\nHigh School Ass'n, 2017 IL 121124, ,122 (quoting In re M.M., 2016 IL 119932, ,I 16).\nAdditionally, \"statutes should not be construed in a way that would defeat the statute's purpose or\nyield an absurd or unjust result.\" Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 107\n(2000).\nE-mail from PatrickT. Brankin, Village At torney, to Joshua Jones, Deputy Bureau Ch ief, Public\nAccess Bureau, Office of the Illinois At torney General (J uly 16, 2024), at 4.\n9\n\n\fMr. Patrick T. Brankin\nAugust 21, 2024\nPage 7\nTo the extent the language \"or persons who * * * provide information to * * * law\nenforcement * * * agencies\" is ambiguous in scope in isolation, in the context of section\n7(1)(d)(iv) it is evident that the General Assembly was not referring to information that would\nunavoidably identify any and all persons who provided information to a law enforcement agency\nin any and all circumstances. Such an interpretation would clearly be overbroad, as it would\nallow public bodies to withhold such disparate things as a police officer's notice to his or her\nsupervisor about sustaining an on-duty injury and a homicide suspect's admission of guilt during\na custodial interrogation. Rather, the context of section 7(1)(d)(iv) reflects that in addition to\nconfidential sources, the General Assembly intended to afford protection to individuals who\nsimilarly chose to provide information to law enforcement. The purpose of facilitating the\nprovision of information to law enforcement by protecting the identities of people who elect to\nprovide law enforcement with information would generally not be served by protecting the\nstatements made by a suspect of a criminal offense in response to a police officer's questions\nduring an incident that results in the suspect's arrest. This office has previously determined that\n\"the contents of the arrestee's conversation with police officers and descriptions of police officer\nconduct, are not exempt from disclosure under section 7(1)(d)(iv) ofFOIA.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 57951, issued January 10, 2022, at 7. This office makes the same determination\nhere.\nThe Department did not sustain its burden of proving by clear and convincing\nevidence that the portions of the police report documenting the driver/arrestee's statements and\nthe police officer's conduct are exempt from disclosure are under sections 7(1)( a), 7(1)(b),\n7(1)(c), or 7(1)(d)(iv) ofFOIA. This office asks the Department to provide••••with a\nnew copy of the report, subject only to the redaction of \"unique identifiers\" under section 7(1)(b)\nas discussed above and all information pertaining to the minor, dates of birth, and the arrestee's\nheight and weight under section 7(1)(c).\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at joshua.jones@ilag.gov.\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n8213 6 f 71a improper 71b proper improper 71c proper improper 71div improper pd\n\n\f"}
{"id":1495,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-03-25","case_number":null,"request_numbers":["82383"],"title":"Chicago Police Department properly withheld ALPR user guide under 7(1)(o)","filename":"82383, issued March 25, 2025.pdf","rel_path":null,"word_count":956,"summary":"Christopher Ward requested an instructional manual for the in-car usage of the ALPR system from the Chicago Police Department, which denied the request under FOIA exemption 7(1)(o). The PAC determined that CPD did not improperly deny the request because the user guide contains administrative and technical information associated with automated data processing operations and is per se exempt under that exemption.","plain_summary":"Under FOIA, records that contain administrative and technical information associated with automated data processing operations are per se exempt from disclosure under section 7(1)(o). The decisive fact was that the withheld user guide was for the AutoVu Patroller software application, which is an automated data processing system. Because the guide fell squarely within this categorical exemption, the PAC concluded the denial was proper without needing to assess any additional balancing or harm.","holding":"The Chicago Police Department did not improperly deny the requested ALPR user guide under FOIA exemption 7(1)(o).","legal_question":"Whether the Chicago Police Department properly denied a FOIA request for an ALPR system user guide under the per se exemption for administrative and technical information associated with automated data processing operations.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(o)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(o)"],"public_body":"Chicago Police Department","requesting_party":"Christopher Ward","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"Instructional manual for in-car usage of the Automated License Plate Reader (ALPR) system.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_o/82383, issued March 25, 2025.pdf","sha256":"bdca9b26853ce8e92ff3a96ba304879cdc2b6953e7f573864f582f4533fb9161","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["ALPR","automated license plate reader","user guide","exemption 7(1)(o)","police records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"ALPR system user guide for in-car use","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-82383/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nMarch 25, 2025\n\nVia electronic mail\nMr. Christopher Ward\nPeople's Fabric\nchris@peoplesfabric.com\nVia electronic mail\nMr. Vaughn C. Ganiyu\nAssistant General Counsel\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653\npacola@chicagopolice.org\nRE: FOIA Request for Review - 2024 PAC 82383; FOIA P949217\nDear Mr. Ward and Mr. Ganiyu:\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed\nbelow, this office concludes that the Chicago Police Department (CPD) did not improperly deny\nMr. Christopher Ward's May 24, 2024, FOIA request.\nOn that date, Mr. Ward, on behalf of People's Fabric, submitted a FOIA request to\nCPD seeking \"[a]n instructional manual for the in-car usage of the ALPR [Automated License\nPlate Reader] system[.]\" 1 On June 3, 2024, CPD denied Mr. Ward's request pursuant to section\n7(1)(o) of FOIA. 2 On the same day, Mr. Ward submitted the above-referenced Request for\nReview challenging CPD's denial of his FOIA request.\n1\n\nFOIAportal message from Chicago Public Safety to Chris[topher] Ward (May 24, 2024).\n\n2\n\n5 ILCS 140/7(1)(0) (West 2023 Supp.).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 lnnovalion Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fMr. Christopher Ward\nMr. Vaughn C. Ganiyu\nMarch 25,2025\nPage 2\nOn August 7,2024,and August 29,2024,this office forwarded copies of Mr.\nWard's Request for Review to CPD and asked it to provide a copy of the ALPR user manual for\nthis office's confidential review,together with a detailed explanation of the legal and factual\nbases for the asserted 7(1)(o) exemption. On September 6,2024,this office received CPD's\nresponse as well as a copy of the ALPR user's manual for this office's confidential review. On\nSeptember 13,2024,this office forwarded a copy of CPD's response to Mr. Ward. On October\n1,2024,this office received Mr. Ward's reply asserting that CPD \"failed to communicate\nspecifically which portions of the requested user manual 'would jeopardize the security of the\nsystem or its data or the security of materials exempt under this Section.\"' 3\nDETERMINATION\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ill. 2d 390,415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022). The exemptions from disclosure are to be narrowly construed. Lieber v.\nBoard of Trustees ofSouthern Illinois University, 176 Ill. 2d 401,407 (1997).\nSection 7(1)(o) exempts from disclosure:\nAdministrative or technical information associated with\nautomated data processing operations, including but not limited\nto software,operating protocols,computer abstracts,file layouts,\nsource listings,object modules,load modules,user guides,\ndocumentation pertaining to all logical and physical design of\ncomputerized systems,employee manuals,and any other\ninformation that,if disclosed,would jeopardize the security of the\nsystem or its data or the security of materials exempt under this\nSection. (Emphasis added.)\nIn Chapman v. Chicago Department ofFinance, 2023 IL 128300,the Illinois\nSupreme Court analyzed the scope of section 7(1)(o) and concluded that the ten items listed in\nthe exemption-software,operating protocols,computer program abstracts,file layouts,source\nlistings,object modules,load modules,user guides,documentation pertaining to all logical and\nphysical design of computerized systems,and employee manuals-are per se exempt from\ndisclosure. Chapman, 2023 IL 128300,,r 41. In other words,the Court held that a public body\nneed not demonstrate that the types of records expressly listed in section 7(1)(o) would\njeopardize security if disclosed. Chapman, 2023 IL 128300,,r 40. The court emphasized that if\n\"the General Assembly intended to require the government agency to show disclosure of\n3\n\nE-mail from Chris [Ward] to Victoria [Frazier] (October 1, 2024).\n\nOffice of the Illinois Attorney General\n\n\fMr. Christopher Ward\nMr. Vaughn C. Ganiyu\nMarch 25, 2025\nPage 3\ninformation would jeopardize the security of its system, the list of specific items would have\nbeen unnecessary.\" Chapman, 2023 IL 128300, ,r 37. The Court explained that the phrase \"and\nany other information that, if disclosed, wouldjeopardize the security of the system or its data or\nthe security of materials exempt under this Section[]\" in section 7(1 )(o) \"shows the legislature\nunderstood it could not specifically list every item that might fall within the exemption's scope\nand allowed for the protection of the system should it be proved that disclosure of a nonlisted\nitem, i.e., any other information, would jeopardize its security.\" Chapman, 2023 IL 128300, ,r 38\nCPD provided most of its response confidentially, and therefore, this office\ncannot disclose the substance of CPD's arguments. 4 This office has reviewed the withheld user\nguide, however, and confirmed that it contains administrative and technical information\nassociated with automated data processing operations, specifically, the AutoVu Patroller\nsoftware application. Because such user guides are per se exempt from disclosure under section\n7(1)(o), this office concludes that CPD did not improperly deny the user guide under that\nexemption.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Springfield address listed on the first page of this letter, by phone at (217) 782-9054,\nor by e-mail at caleb.briscoe@ilag.gov. This letter serves to close this file.\nVery truly yours,\nCALEB L. BRISCOE\nAssistant Attorney General\nPublic Access Bureau\n823 83 f 71 o proper pd\n\n4\n\n5 ILCS 140/9.S(d) (West 2023 Supp.).\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1496,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2024,"date_issued":"2024-09-18","case_number":null,"request_numbers":["82787"],"title":"CTA properly classified requester as recurrent under FOIA for insufficient news media proof","filename":"82787, issued September 18, 2024.pdf","rel_path":null,"word_count":974,"summary":"The requester sought bus dispatch records and related documents from the Chicago Transit Authority (CTA), claiming news media status to avoid recurrent requester treatment. The PAC determined no further action was warranted because the requester failed to provide sufficient evidence of news media affiliation.","plain_summary":"Under FOIA, a requester can avoid recurrent requester status if they are 'news media' and the request is for a news purpose. The requester here claimed to be a regular contributor to the Chicago Tribune Opinions section but provided only a redacted email that did not clearly show an affiliation with a news organization. The PAC found that without sufficient documentation—such as official credentials or an email from the news organization's domain—the CTA was justified in applying the recurrent requester rules. The key legal principle is that the burden is on the requester to prove news media status, not on the public body to disprove it.","holding":"The CTA properly treated the requester as a recurrent requester under FOIA.","legal_question":"Did the CTA properly classify the requester as a recurrent requester under FOIA when the requester claimed news media status but provided insufficient evidence?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2(g)","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Transit Authority","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"Bus dispatch records, best practices guidance, and service standards policies from the Chicago Transit Authority.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/82787, issued September 18, 2024.pdf","sha256":"7f4d1108f95c63f44edbfe4ca0de3241b83a2c19adc333c7d056af4e62e6b7cf","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["recurrent requester","news media","FOIA request","Chicago Transit Authority"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Transit authority dispatch records and service policies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-82787/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nSeptember 18, 2024\n\nVia electronic mail\n\nRE: FOIA Request for Review - 2024 PAC 82787\nDearThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons explained\nbelow, this office has determined that no further action is warranted in this matter.\nOn August 20, 2024, you submitted a FOIA request to the Chicago Transit\nAuthority (CTA) seeking bus dispatch records, guidance on best practices for bus dispatch, and a\ncopy of \"Chicago Transit Authority Service Standards and Policies.\" Your request stated that it\nshould be exempt from the recurrent requester provisions of FOIA because you are \"a regular\ncontributor to the Chicago Tribune Opinions section and the intent of this FOIA is to contribute\nto an article of opinion.\" 1 You provided CTA with a redacted e-mail stating \"[ w]e only need\nregular contributors\" with the sender's name disclosed, but that did not otherwise identify the\nsender's affiliation. On August 27, 2024, CTA notified you that it was treating you as a recurrent\nrequester pursuant to sections 2(g) and 3.2 of FOIA (5 ILCS 140/2(g) (West 2023 Supp.); 5\nILCS 140/3.2 (West 2022)) and would respond to your request within 21 business days. On that\nsame date, you submitted the above-referenced Request for Review contesting the CTA's\ntreatment of your request as one from a recurrent requester.\n\nE-mail from ASSOC., to [CTA FOIA] (August 20, 2024).\n1\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAnomeyGeneral.gov\n\n\fSeptember 18, 2024\nPage 2\nSection 2(g) of FOIA defines a \"recurrent requester\" as:\na person that, in the 12 months immediately preceding the request,\nhas submitted to the same public body (i) a minimum of 50\nrequests for records, (ii) a minimum of 15 requests for records\nwithin a 30-day period, or (iii) a minimum of 7 requests for records\nwithin a 7-day period. For purposes of this definition, requests\nmade by news media and non-profit, scientific, or academic\norganizations shall not be considered in calculating the number of\nrequests made in the time periods in this definition when the\nprincipal purpose of the requests is (i) to access and disseminate\ninformation concerning news and current or passing events, (ii) for\narticles of opinion or features of interest to the public, or (iii) for\nthe purpose of academic, scientific, or public research or\neducation. (Emphasis added.)\nAs an initial matter, you do not contest CTA's assertion that you submitted a\nminimum of 7 FOIA requests to CTA in a 7-day period earlier this year. Rather, you allege that\nbecause your FOIA request stated that you are a regular contributor to the Chicago Tribune\nOpinions section and that the intent of your request is to contribute to an opinion article, you\nshould be excepted from the recurrent requester designation for this FOIA request. Your FOIA\nrequest included what appears to be a redacted version of a screen shot of a message you\nreceived from the Chicago Tribune that refers to regular contributors.\nSection 2(f) of FOIA (5 ILCS 140/2(£) (West 2023 Supp.)) defines \"news media,\"\nin relevant part, as a \"newspaper or other periodical issued at regular intervals whether in print or\nelectronic format, a news service whether in print or electronic format[.]\" This office has\nreviewed the materials you provided with your Request for Review. Although the Chicago\nTribune is undoubtedly news media, your FOIA request did not provide a sufficient basis for\nCTA to conclude that it was made on behalf of the Chicago Tribune and therefore \"by news\nmedia.\" The partial e-mail included in your request did not clearly show that you are a regular\ncontributor or explain what that designation means, including whether it would entitle you to\ntake an action such as submitting a FOIA request on behalf of the Chicago Tribune. It is\nimportant to note that individuals who contribute content to news media publications do so for a\nvariety of reasons and in a variety of capacities, including as journalists, marketing professionals,\npublic officials, and advocates for special interests or particular causes. Seeking public records\nfor use in a potential contribution to a news media entity does not necessarily transform the\nrequester into a member or representative of the news media who would be excluded from the\ndefinition of recurrent requester. Accordingly, CTA did not improperly treat your FOIA request\nas a request submitted by a recurrent requester in accordance with section 2(g) of FOIA, and this\noffice concludes that no further action is warranted in this matter.\n\nOffice of the Illinois Attorney General\n\n\fSeptember 18, 2024\nPage 3\nIf you submit another FOIA request to CTA in the future, you may wish to\nprovide sufficient information or documentation to support the assertion that your request is\n\"made by news media[.]\" 5 ILCS 140/2(g) (West 2023 Supp.). For instance, you may wish to\ninclude official credentials or submit the request from an e-mail account associated with the\ndomain of the news media organization.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590-7878 or benjamin.silver@ilag.gov.\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n82787 f no fi war reg auth\ncc:\n\nVia electronic mail\nMs. Brigett R. Bevan\nManaging Attorney\nCompliance, Policy and Risk\nChicago Transit Authority\n567 West Lake Street\nChicago, Illinois 60661\nFOIA@transitchicago.com\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1497,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-04-23","case_number":null,"request_numbers":["83705"],"title":"Lee County Sheriff's Office violated FOIA by withholding ALPR camera locations","filename":"83705, issued April 23, 2026.pdf","rel_path":null,"word_count":2791,"summary":"The requester sought records about the cost, lease period, and locations of ALPR cameras used by the Lee County Sheriff's Office. The PAC determined that the Sheriff's Office improperly withheld the location records under FOIA exemptions 7(1)(d-7) and 7(1)(v).","plain_summary":"Under FOIA, a public body must prove by clear and convincing evidence that an exemption applies. The Sheriff's Office claimed that ALPR camera location records were exempt under section 7(1)(d-7) (law enforcement security measures) and 7(1)(v) (vulnerability assessments). However, the PAC found that the Sheriff's Office failed to provide specific facts showing that disclosing the locations would actually increase the risk of attacks or compromise security measures. Because the Sheriff's Office did not meet its high burden of proof, the exemption did not apply, and the records had to be disclosed.","holding":"The Lee County Sheriff's Office violated FOIA by improperly withholding records of ALPR camera locations.","legal_question":"Whether the Lee County Sheriff's Office properly withheld records of ALPR camera locations under FOIA exemptions 7(1)(d-7) and 7(1)(v).","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(d-7)","5 ILCS 140/7(1)(v)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d-7)","7(1)(v)"],"public_body":"Lee County Sheriff's Office","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Records concerning the cost, lease period, and locations of Automated License Plate Reader (ALPR) cameras used by the Lee County Sheriff's Office.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d-7/83705, issued April 23, 2026.pdf","sha256":"893276edb3dbe490b11111c8efde70f9969d74c8481451f21f45c1fb80e5078f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["ALPR","license plate reader","law enforcement records","exemption 7(1)(v)","exemption 7(1)(d-7)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"ALPR camera cost, lease period, and locations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-83705/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 23, 2026\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Clayton T. Whelan\nSheriff\nLee County Sheriffs Office\n240 East Progress Drive\nDixon, Illinois 61021\ncwhelan@countyoflee.org\nRE: FOIA Request for Review - 2024 PAC 83705\nDear- and Sheriff Whelan:\nThis determination letter is issued pursuant to section 9.5(f) ofthe Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2024), as amended by Public Act 104-438,\neffective January 1, 2026). For the reasons that follow, the Public Access Bureau concludes that\nthe Lee County Sheriffs Office (Sheriffs Office) violated the requirements ofFOIA by\nimproperly withholding records responsive to\nOctober 18, 2024, FOIA\nrequest.\n\nBACKGROUND\nOn that date,\nsubmitted an e-mail to the Sheriffs Office with an\nattached FOIA request seeking copies ofrecords concerning the \"[cJost ofand lease time period\nofthe 14 Flock License Plate Camera[s] being used by Lee County Illinois[ ]\" and the \"[s]pecific\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fThe Honorable Clayton T. Whelan\nApril 23,2026\nPage 2\nlocation of all License Plate Cameras in use by Lee County Illinois.\" 1 On October 25,2024,the\nSheriffs Office provided copies of records reflecting the cost and leasing period of the cameras\nbut withheld in their entireties records identifying the cameras' locations pursuant to sections\n7(1)(d-7) and 7(1)(v) ofFOIA (5 ILCS 140/7(1)(d-7),( l )(v) (Wes�,as amended by\nPublic Act 103-605,effective July 1,2024). On October 28,2024-ubmitted this\nRequest for Review contesting the Sheriffs Office's denial.\nOn November 7,2024,the Public Access Bureau sent a copy of the Request for\nReview to the Sheriffs Office. The Public Access Bureau also sent the Sheriffs Office a letter\nasking for unredacted copies of the requested records for this office's confidential review,\ntogether with a detailed explanation of the legal and factual bases for the applicability of the\nasserted exemptions.\nOn November 12,2024,the Sheriffs Office provided this office with unredacted\ncopies of the requested records and its written answer. Later that same day,this office forwarded\na copy of the Sheriffs Office's answer to-and notified him of his opportunity to reply.\nOn November 13,2024,_ submitted a reply and,later that same morning,\nsupplemented his reply. Having been copied o�replies to this office,the Sheriffs\nOffice submitted another response shortly thereafter. Later that same day,-replied to\nthe Sheriffs Office's supplemental response.\nOn January 22,2025,the Sheriffs Office sent an additional e-mail to this office\nstating that an ALPR camera had been vandalized and that disclosing the locations of the\ncameras could lead to further vandalism and damage.\nDETERMINATION\nSection 1 ofFOIA (5 ILCS 140/1 (West 2024)) \"declares that it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.\" UnderFOIA,\n\"[a]11 records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024).\nThe Illinois Supreme Court has \"on several occasions,held that the exceptions to disclosure set\nforth in theFOIA are to be read narrowly so as not to defeat theFOIA's intended purpose.\"\nSouthern Illinoisan v. Illinois Department ofPublic Health, 218 Ill. 2d 390,416 (2006).\n\n2024).\n\n1 Lee County Freedom of Information Act Request Form submitted by-(October 18,\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Clayton T. Whelan\nApril 23, 2026\nPage 3\nSection 7(1)(d-7) of FOIA\nThe records at issue in this matter concern Automated License Plate Readers\n(ALPRs) used by the Sheriffs Office. Through the enactment of Public Act 103-540, effective\nJanuary 1, 2024, the General Assembly recently amended FOIA to add the section 7(1)(d-7)\nexemption that applies to \"[i]nformation gathered or records created from the use of automatic\nlicense plate readers in connection with Section 2-130 of the Illinois Vehicle Code.\" (Emphasis\nadded.) Section 2-130(a) of the Illinois Vehicle Code (625 ILCS 5/2-130(a) (West 2024))\ndefines \"Automated license plate reader\" or \"ALPR\" as:\nan electronic device that is mounted on a law enforcement vehicle\nor positioned in a stationary location and that is capable of\nrecording data on or taking a photograph of a vehicle or its license\nplate and comparing the collected data and photographs to existing\nlaw enforcement databases for investigative purposes. \"ALPR\"\nincludes a device that is owned or operated by a person or an entity\nother than a law enforcement agency to the extent that data\ncollected by the reader is shared with a law enforcement agency.\nPursuant to section 2-130(a) of the Code, \"information gathered by an ALPR or created from the\nanalysis of data generated by an ALPR,\" is defined as \"ALPR information.\" Sections 2-130(b)\nthrough 2-130(d) of the Code restrict access to and sharing of ALPR information.\nIn its written answer to this office, the Sheriffs Office asserted that Public Act\n103-540 requires ALPR information to \"be held confidentially to the fullest extent permitted by\nlaw.\"2 In his reply,-contended that the Sheriffs Office improperly relied on Public\nAct 103-540, stating:\nWhen read in its entirety the section regarding ALPR is\nreferencing the DATA the ALPR collects and not the physical\nlocation of the ALPR. The data is uploaded to a central server and\nis not maintained on the camera itself. So knowledge of the\nlocation of the camera in no way compromises or puts the data at\nrisk. [3 l (Emphasis in original.)\n\n2\nE-mail from Clayton T. Whelan - Sheriff, Lee County Sheriffs Office, to Christopher Boggs,\n[Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General] (November 12, 2024).\n3 E-mail from - to Christopher Boggs, [Deputy Public Access Counselor, Public\n\nAccess Bureau, Office of the Illinois Attorney General] (November 13, 2024), at 6:38 a.m.\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Clayton T. Whelan\nApril 23, 2026\nPage 4\nIn construing a statute, the primary objective \"is to ascertain and give effect to the\nintent of the General Assembly.\" Southern Illinoisan, 218 Ill. 2d at 415. \"[T]he surest and most\nreliable indicator of'' legislative intent \"is the statutory language itself, given its plain and\nordinary meaning.\" Board of Education of Springfield School District No. 186 v. Attorney\nGeneral of Illinois, 2017 IL 120343, ,i 24. Where the language of a statute is clear and\nunambiguous, a reviewing body \"may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\" Hayashi v.\nIllinois Department of Financial & Professional Regulation, 2014 IL 116023, ,i 16. \"[W]hen a\nstatute defines the very terms it uses, those terms must be construed according to the definitions\ncontained in the statute.\" People v. Chenoweth, 2015 IL 116898, ,i 21.\nThe plain language of section 7(1)(d-7) ofFOIA exempts from disclosure\n\"[i]nformation gathered or records created from the use of'' ALPRs \"in connection with Section\n2-130 of the Illinois Vehicle Code.\" The Illinois Vehicle Code limits dissemination only of\n\"ALPR information,\" which it similarly defines as (1) information gathered by ALPRs or (2)\ninformation created from the analysis of data generated by ALPRs. Records identifying the\nlocations of ALPRs are neither form of information. The Sheriff's Office's expansive reading of\nsection 7(1)(d-7) as authorizing public bodies to also withhold the locations of ALPRs is\ncontrary to the plain language of the exemption. Because records identifying the locations of\nALPRs were neither gathered nor created from the use of the ALPRs, the Sheriff's Office has not\nsustained its burden of demonstrating that those records are exempt from disclosure pursuant to\nsection 7(1)(d-7) ofFOIA.4\nSection 7(1)(v) of FOIA\nSection 7(1)(v) ofFOIA exempts from disclosure:\nVulnerability assessments, security measures, and\nresponse policies or plans that are designed to identify,\nprevent, or respond to potential attacks upon a community's\npopulation or systems, facilities, or installations, but only to the\n1n addition to creating the 7(l)(d-7) exemption, Public Act 103-540 added section 2-130 of the\nIllinois Vehicle Code (see 625 ILCS 5/2-130 (West 2024)), which prohibits ALPR users from selling, sharing or\nallowing access to ALPR data to investigate or enforce a law that interferes with a person's right to choose or obtain\nreproductive health care services or detain or investigate a person based on their immigration status. During the\nHouse floor debate on House Bill 3326, which as enacted became Public Act 103-540, Representative Ann Williams\nexplained that the bill would \"prohibit out-of-state law enforcement from utilizing [ALPR] data gathered in Illinois\nto prosecute people seeking legal reproductive health care or to detain people based on their immigration status[]\"\nand that the bill was \"limited to the sharing of ALPR data with law enforcement from other states.\" It is thus\napparent from the legislative history of the bill that it was designed to limit access to ALPR information and how\nthat information may be used by law enforcement.\n4\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Clayton T. Whelan\nApril 23, 2026\nPage 5\nextent that disclosure could reasonably be expected to expose the\nvulnerability or jeopardize the effectiveness of the measures,\npolicies, or plans, or the safety of the personnel who implement\nthem or the public. Information exempt under this item may\ninclude such things as details pertaining to the mobilization or\ndeployment of personnel or equipment, to the operation of\ncommunication systems or protocols, to cybersecurity\nvulnerabilities, or to tactical operations. (Emphasis added.)\nBy its plain language, section 7(1)(v) applies to records that meet three\nrequirements. First, section 7(1)(v) applies to vulnerability assessments, security measures, and\nresponse policies or plans. Second, the vulnerability assessment, security measure, or response\npolicy or plan must be created for the purpose of identifying, preventing, or responding to\npotential attacks on a community or its infrastructure. Finally, the disclosure of the vulnerability\nassessment, security measure, or response policy or plan could reasonably be expected to expose\nthe vulnerability or jeopardize the effectiveness of the measures, policies, or plans, or the safety\nof the personnel who implement them or the public. Ill. Att'y Gen. Pub. Acc. Op. No. 24-008,\nissued June 21, 2024, at 4.\nIn its response to this office, the Sheriffs Office asserted that it withheld the\nrequested ALPR locations \"due to vulnerability assessment information under 5 ILCS\n140/7(1)(v) that could jeopardize the publication of ALPR locations on travel apps such as\nWaze. The confirmation of these locations does nothing but hinder law enforcement efforts to\nkeep the lawful citizens safe when a violent crime occurs.\" 5\nFOIA does not define \"vulnerability assessment.\" \"Vulnerable\" is defined as\n\"[s]usceptible to physical injury.\" The American Heritage Dictionary 1356 (2d coll. ed. 1985).\n\"Assessment\" is defined as a \"[d]etermination of the rate or amount of something.\" Black's Law\nDictionary 144 (11th ed. 2019). The Public Access Bureau has previously determined that a\nvulnerability assessment for purposes of section 7(1)(v) is an analysis that identifies safety risks\nor weaknesses such as those that can be exploited by bad actors. Ill. Att'y Gen. PAC Req. Rev.\nLtr. 53388, issued November 26, 2018, at 2-3 (concluding that a police department's \"after action\nreport/improvement plan\" concerning active shooter drills at public schools was exempt from\ndisclosure under section 7(1)(v) because it identified specific areas for improvement and\nprovided recommendations). The location of ALPRs is strictly factual information, and the\nSheriffs Office has not shown that it uses ALPRs to assess any vulnerability in Lee County.\nTherefore, records reflecting the locations of ALPRs do not constitute vulnerability assessments\nwithin the scope of section 7(1)(v) ofFOIA.\nE-mail from Clayton T. Whelan - Sheriff, Lee County Sheriffs Office, to Christopher Boggs,\n[Deputy Public Access Counselor, Public Access Bureau, Office of the Illinois Attorney General] (November 12,\n2024).\n5\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Clayton T.Whelan\nApril 23,2026\nPage 6\nSection 7(1)(v) also applies to \"security measures,***that are designed to\nidentify,prevent,or respond to potential attacks upon a community's population or systems,\nfacilities,or installations[.]\" In its initial response to the FOIA request,the Sheriffs Office\nargued that ALPRs \"provide security measures to identify and respond to attacks and other\ncriminal activity occurring against citizens. The technology is used in law enforcement\ninvestigations to detect and apprehend those individuals involved in shootings and attacks to\nprevent further attacks and other criminal activity.\"6 The Sheriffs Office provided no additional\ninformation in support of this argument in its responses to this office.\nBy its plain language,section 7(1)(v) applies only to vulnerability assessments,\nsecurity measures,or response plans or policies that have a particular purpose. If \"a statute lists\nseveral classes of persons or things but provides that the list is not exhaustive,the class of\nunarticulated persons or things will be interpreted as those 'others such like' the named persons or\nthings.\" Board of Trustees of Southern Illinois University v. Illinois Department ofHuman\nRights, 159 Ill.2d 206,211 (1994). In other words,the listed terms are examples of what the\nGeneral Assembly intended the statute to cover. See Duffy v. Illinois Department ofHuman\nRights, 354 Ill.App.3d 236,239 (2004).\nSection 7(1)(v) lists \"details pertaining to the mobilization or deployment of\npersonnel or equipment,to the operation of communication systems or protocols,to\ncybersecurity vulnerabilities,or to tactical operations[]\" as examples of the type of information\nencompassed by the exemption. Such details are distinguishable from the locations of ALPRs\nused for routine law enforcement activities. Moreover,the legislative history behind section\n7(1)(v) demonstrates that the exemption was intended to apply to measures such as\ncounterterrorism. Representative James H.Meyer,one of the House sponsors of the bill that\nadded the exemption,stated during legislative debate that the bill \"exempts documents prepared\nfor emergency and security procedures from being disclosed from homeland security where that\nwould be compromised.\" Remarks of Rep.Meyer,May 31,2003,House Debate on House Bill\nNo. 954 (which as Public Act 93-422,effective August 5,2003,created the section 7(1)(v)\nexemption),at 107.\nEven if ALPRs constitute \"security measures,\" the Sheriffs Office has not\nprovided any information indicating that it uses ALPRs for measures such as counterterrorism\nthat are designed to prevent or respond to attacks on Lee County's population or infrastructure.\nOIA request,the Sheriffs Office simply asserted that\nInstead,in its response to\nlaw enforcement use ALPR technology \"to detect and apprehend those individuals involved in\n\n6Letter from Clayton T. Whelan, Lee County Sheriff, Lee County Sheriffs Office, to -\n\n(October 25, 2024).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Clayton T. Whelan\nApril 23, 2026\nPage 7\nshootings and attacks to prevent further attacks and other criminal activity.\"7 In response to this\noffice's letter of inquiry, the Sheriff's Office provided no additional details on how it could use\nthe information gathered by ALPRs to identify, prevent, or respond to potential attacks upon the\ncommunity's population or systems, facilities, or installations. In contrast, in Chicago Sun-Times\nv. Chicago Transit Authority, 2021 IL App (1st) 192028, the Illinois Appellate Court held that\nthe Chicago Transit Authority (CTA) demonstrated that its rail station surveillance camera\nnetwork was installed with the support of federal grants to help protect \"the nation's critical\ntransportation infrastructure against acts of terrorism and other large-scale events.\" 2021 IL App\n(1st) 192028, ,-i 48. Based on that showing, the court held that CTA met its burden under section\n7(1)(v) to withhold video recordings made by that system. Chicago Sun-Times, 2021 IL App\n(1st) 192028, ,-r 48.\nThe use of ALPRs for routine law enforcement activities such as responding to\ncrimes and collecting evidence do not constitute \"security measures, * * * that are designed to\nidentify, prevent, or respond to potential attacks upon a community's population or systems,\nfacilities, or installations[.]\"8 Accordingly, this office concludes that the Sheriff's Office has not\nsustained its burden of demonstrating by clear and convincing evidence that records reflecting\nthe locations of ALPRs are exempt from disclosure pursuant to section 7(1)(v) of FOIA.\nIn accordance with the conclusions expressed above, this office requests that the\nSheriff's Office provide-with copies of the requested records. The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. This file is closed. If you have any questions, please contact me at\nChristopher.Boggs@ilag.gov.\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Counselor\nPublic Access Bureau\n83705 f 71d7 improper 71v improper sho\n\n7Letter from Clayton T. Whelan, Lee County Sheriff, Lee County Sheriffs Office, to\n(October 25, 2024).\n8lt is therefore unnecessary to address the Sheriffs Office's argument that disclosing the locations\n\nof ALPRs would undermine their effectiveness.\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1498,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2025,"date_issued":"2025-05-27","case_number":null,"request_numbers":["86577","86947"],"title":"City of DeKalb properly withheld employee home zip codes under 7(1)(b)","filename":"86577 86947, issued May 27, 2025.pdf","rel_path":null,"word_count":1163,"summary":"The requester sought employee salary and zip code data in Excel format from the City of DeKalb. The PAC determined the City properly withheld zip codes under FOIA exemption 7(1)(b) because zip codes are part of home addresses attributable to individuals, and the request was unfounded.","plain_summary":"FOIA's private-information exemption (7(1)(b)) protects a person's home address and its component parts unless another law requires disclosure or the data cannot be attributed to any person. The requester asked a city for each employee's home zip code alongside names and compensation. The PAC concluded that a zip code paired with an employee's name could lead to the employee's home address through commonly available sources, so the city properly withheld it, and it distinguished an appellate decision that involved zip codes not tied to named individuals.","holding":"The City did not improperly withhold the requested zip codes under section 7(1)(b) of FOIA.","legal_question":"Whether the City of DeKalb properly withheld employee home zip codes under FOIA exemption 7(1)(b) as an unwarranted invasion of personal privacy.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"City of DeKalb","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"Employee salary and zip code data request.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b/86577 86947, issued May 27, 2025.pdf","sha256":"e1d3af513ebdb7ca3184f78b0f6e3aaf56e4c52f74266e21094ddaa1ae9d4218","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["employee zip code","home address","personnel records","exemption 7(1)(b)","privacy"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Employee salary and zip code data","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-86577/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nAHORNEY GENERAL\n\nMay 27, 2025\n\nVia electronic mail\n\nRE: FOIA Request for Review-2025 PAC 86577; 86947\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2023 Supp.)). For the reasons explained\nbelow, the Public Access Bureau has determined that these Requests for Review are unfounded.\nOn March 6, 2025, you submitted a FOIA request to the City of DeKalb (City)\nseeking, in Microsoft Excel format, \"the following information for each employee:\n• title\n• employment type: full-time/part-time\n• salary\n• total compensation\n• home zip code [IJ\nOn March 13, 2025, the City provided you with a PDF document that lists the name, title,\ndepartment, wages, allowances, bonuses, social security and Medicare payment, total insurance,\ntotal compensation, vacation days granted, and sick days granted for each City employee. The\nCity did not cite any exemptions or otherwise address the exclusion of zip codes. On April 30,\n2025, you submitted a Request for Review (2025 PAC 86577) contesting the City's response.\n\n1\n\nE-mail from\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\no Scott Zak, [FOIA Officer, City of DeKalb] (March 6, 2025).\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAnomeyGeneral.gov\n\n\fMay 27, 2025\nPage 2\nSpecifically, you alleged that the City did not provide the record in the requested format and did\nnot include a zip code for each employee.\nOn May 9, 2025, a CityFOIA Officer stated in a telephone conversation with a\nSupervising Attorney in the Public Access Bureau that the City had inadvertently provided the\nrecord in PDF format and would provide you with a copy in Microsoft Excel format. TheFOIA\nOfficer also clarified that the City had withheld zip codes pursuant section 7(1)(b) ofFOIA (5\nILCS 140/7(1)(b) (West 2023 Supp.), as amended by Public Acts 103-605, effective July 1,\n2024; 103-865, effective January 1, 2025). On that same date, the City provided you with a\nMicrosoft Excel copy of the record, still without zip codes.\nAlso on that same date, you submitted a secondFOIA request to the City seeking\n\"the following information for each employee: []home zip code[.]\"2 On May 16, 2025, the City\ndenied your second request in its entirety pursuant to section 7(1)(b) ofFOIA. On May 21,\n2025, you submitted a second Request for Review (2025 PAC 86947) contesting the City's\nresponse.\nSection 7(1)(b) ofFOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) ofFOIA (5 ILCS 140/2(c-5) (West 2023 Supp.)) defines \"private information\" as:\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without\npossibility of attribution to any person. (Emphasis added.)\nYou argued in a May 18, 2025, e-mail to this office and the CityFOIA Officer, as\nwell as in your second Request for Review, that zip codes are not exempt as private information,\nciting Hites v. Waubonsee Community College, 2016 IL App (2d) 150836. Specifically, you\nargued that \"[t]he court held that these fields, including zip code, are nonexempt information\n(public records individually)[,]\" quoting the following passage from the decision:\nWCC also invoked private and personal exemptions pursuant to\nsections 7(1)(b) and 7(1)(c), related to disclosure of student\nregistration forms, but it admits that such forms could be redacted\nto display only nonexempt information. Importantly here, the\nrequests at issue are not for the physical copies but for the zip\nE-mail fro�to Scott Zak, [FOIA Officer, City of DeKalb] (May 9, 2025).\n\n2\n\nOffice of the Illinois Attorney General\n\n\fMay 27,2025\nPage 3\ncodes,numbers of registered students,and raw input for the fields\nof the cities,counties,citizenship,and visa statuses of registered\nstudents. These specific requests do not implicate the definition of\n\"private information\" under section 2(c-5). Rather,plaintiff\nspecifically seeks nonexempt information stored in WCC's\ndatabases. [3 l\nHowever,that quotation omits the first sentence of the paragraph: \"Whether a statutory\nexemption applies is not at issue on appeal.\"4 The cited passage,therefore,consists of obiter\ndictum that is not dispositive of the issue in this matter. Lebron v. Gottlieb Memorial Hospital,\n237 Ill. 2d 217,236 (2010) (\"Obiter dictum is not essential to the outcome of the case,is not an\nintegral part of the opinion,and is generally not binding authority or precedent within the stare\ndecisis rule.\"). Further,the Appellate Court did not determine that zip codes are nonexempt\ninformation per se. Rather,the information requested included zip codes but did not seek other\ninformation that could personally identify individual students such as names,and the public body\ndid not argue that zip codes which were not attributable to individual students were exempt\nunder section 7(1)(b).\nOn the other hand,the Public Access Bureau has previously determined that a\nmunicipal employee's zip code is a constituent part of a home address and,therefore,constitutes\n\"private information\" under 7(1)(b) ofFOIA because \"a simple cross reference of the zip code\nand the name of the City employee through other commonly available resources such as the\nphone book,property assessments,and the Internet could ultimately lead to disclosure of the\nhome address of the employee.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 9808,issuedFebruary 10,\n2011. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 51699,issued March 5,2020; Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 77763,issued November 13,2023. Thus,a zip code for a home address is\nnot exempt from disclosure unless another law provides for disclosure or the zip code has been\ncompiled in such a manner that it is not attributable to any person.\nYour March 6,2025,and May 9,2025,FOIA requests specifically sought the\nhome zip code \"for each employee\" of the City. As explained above,providing the employees'\nzip codes coupled with employee names could ultimately lead to the disclosure of each\nemployee's home address. Because the employee zip codes are parts of home addresses\nattributable to individuals,the City did not improperly withhold them under section 7(1)(b) of\nFOIA. Accordingly,this office concludes that these Requests for Review are unfounded.\n\n3\n\nHites v. Waubonsee Community College, 2016 IL App (2d) 150836, ,r 54.\nHites v. Waubonsee Community College, 2016 IL App (2d) 150836, ,r 54.\n\n4\n\nOffice of the Illinois Attorney General\n\n\fMay 27, 2025\nPage 4\nThis letter serves to close this matter. Ifyou have any questions, please contact\nme at (773) 590-7878 or benjamin.silver@ilag.gov.\n\nBENJAMIN J. SILVER\nSupervising Attorney\nPublic Access Bureau\n86577 86947 funfmun\ncc:\n\nVia electronic mail\nMr. Scott Zak\nFOIA Officer\nCity ofDeKalb\n164 East Lincoln Highway\nDeKalb, Illinois 60115\nscott.zak@cityofdekalb.com\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1499,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-04-02","case_number":null,"request_numbers":["91277"],"title":"Township High School District 113 properly denied repeated FOIA request as unduly burdensome","filename":"91277, issued April 2, 2026.pdf","rel_path":null,"word_count":1299,"summary":"The requester submitted a FOIA request to Township High School District 113 for insurance policies and related materials, and a subsequent request for specific categories of insurance records. The District denied the second request as unduly burdensome and repeated under section 3(g). The PAC determined the request was unfounded because the second request was a repeated request for the same records already provided, and the District was not required to interpret the records.","plain_summary":"Under FOIA, a public body may deny a repeated request under section 3(g) if it is unduly burdensome. A request is considered repeated if it seeks the same records as a prior request from the same requester. Here, the requester's second request sought insurance records that were already provided in response to the first request, even though the requester claimed it was a clarification. The decisive fact was that the second request covered the same subject matter and time period as the first, and the District had already produced all responsive records. Therefore, the District properly treated the second request as repeated and unduly burdensome, and the PAC found no violation.","holding":"The District did not improperly deny the December 9, 2025, FOIA request under section 3(g) as an unduly burdensome repeated request.","legal_question":"Whether a public body properly denied a FOIA request as an unduly burdensome repeated request under section 3(g) when the requester submitted a subsequent request seeking records already provided in response to an earlier request.","disposition":"no_violation","primary_statute":["5 ILCS 140/3(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Township High School District 113","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"repeated request","subject_description":"Insurance policies and related records for a school district.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Repeated-requests/91277, issued April 2, 2026.pdf","sha256":"7bfe86e29c3c48a6ca80ee0c3c49f5146e2330e3e0e33f3f75926ea1159b37c6","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["repeated request","unduly burdensome","insurance records","school district","FOIA section 3(g)"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school district's insurance policies and related records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-91277/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 2, 2026\n\nVia electronic mail\n\nRE: FOIA Request for Review - 2025 PAC 91277\nDear-:\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2024), as amended by Public Act 104-438,\neffective January 1, 2026). For the reasons set forth below, the Public Access Bureau concludes\nthat this Request for Review is unfounded.\nOn November 24, 2025, you submitted a FOIA request to Township High School\nDistrict 113 (District) seeking \"'all current insurance policies' and related materials.\" 1 On\nDecember 9, 2025, the District produced 755 pages of responsive records, which it asserted was\na complete response to that request. On that same date, you submitted a second FOIA request to\nthe District seeking several categories of insurance records for the current policy year as well as\nthe last two policy years. On December 15, 2025, the District responded that your request was\nan unduly burdensome repeated request under section 3(g) of FOIA (5 ILCS 140/3(g) (West\n2024)). On that same date, you replied to the District that your \"December 9 request was\nintended to clarify, itemize, and specify discrete categories of insurance and risk-management\nrecords that were not clearly identified or produced in response to the November 24 request .\" 2\n\nE-mail from-to [Kathryn] Anderson, [FreedomoflnformationActOfficer,Township\nHigh Schoo l District 113] (December 15, 2025).\n1\n\nE-mailfrom-to[Kathryn]Anderson,[FreedomoflnformationActOfficer,Township\nHigh Schoo l District 113] (December 15, 2025).\n2\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fApril 2, 2026\nPage 2\nOn January 11, 2026, this office received your complete Request for Review\ncontesting the District's denial. You argued that your December 9, 2025, request was not a\nrepeated request because \"[i]t clarified and specified discrete categories of insurance a nd\ncoverage documents that were not clearly produced or identified in response to\" your earlier\nrequest.3 You further argued that the Attorney General had previously concluded in a binding\nopinion that \"conclusory assertions that records were previously produced, without sufficient\nidentification, do not satisfy a public body's burden under FOIA.\"4\nSection 3(g) of FOIA provides, in pertinent part that \"[r]epeated requests from the\nsame person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" (Emphasis added.) Under the plain language of section 3(g), a request is an unduly\nburdensome repeated request if a public body has previously provided you with the responsive\nrecords. Contrary to the assertion in your Request for Review, this office has not concluded that\na public body needs to provide \"sufficient identification\" of previously provided records in a\nresponse asserting that a request is a repeated request under section 3(g) of FOIA. The opinion\ncited in your Request for Review concerned the responsiveness of public records maintained on\npersonal accounts or devices and did not discuss section 3(g).5\nWhen assessing whether a request constitutes an unduly burdensome repeated\nrequest under section 3(g) of FOIA, the relevant question is not whether a subsequent request is\nnarrower, broader, or worded differently, but whether it seeks \"the same records that are\nunchanged or identical to records previously provided or properly denied[.]\" See Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 74017, issued June 26, 2023, at 8-11 (Although the requester used different\nwording in a subsequent request, the request was an unduly burdensome repeated request\nbecause it sought the same records that a public body provided in response to a previous\nrequest); see also Ill. Att'y. Gen. PAC Req. Rev. Ltr. 79006, issued April 24, 2024, at 2 (Because\n\"[t]he repeated request provision in section 3(g) is intended to alleviate the burden of responding\nto redundant or duplicative requests for records that a public body already has provided to the\nsame person[,]\" this office determined that \"[i]t would be absurd to construe section 3(g) of\nFOIA as requiring a public body to disclose all records that it previously furnished in response to\na previous request because of a slight modification to the time frame or content in a subsequent\nrequest.\").\nOn January 30, 2025, a District FOIA Officer confirmed in a telephone\nconversation with a Supervising Attorney in the Public Access Bureau that the records provided\nE-mail from -to [Public Access Bureau, Office of the Illinois Attorney General]\n(December 17, 2025).\n3\n\nE-mail from-to [Public Access Bureau, Office of the Illinois Attorney General]\n(December 17, 2025), citing Ill. Att'y Gen. Pub. Acc. Op. No 11-006, issued November 15, 2011.\n4\n\n5See Ill. Att'y Gen. Pub. Acc. Op. No 11-006, issued November 15, 2011, at 7.\n\nOffice of the Illinois Attorney General\n\n\fApril 2, 2026\nPage 3\nin response to your first request included all records maintained by the District that were\nresponsive to your second request. She explained that she had confirmed with the District's\ninsurance company that the records were unchanged from the prior two policy years. In other\nwords, your December 9, 2025, request sought discrete subsets of records already provided in\nresponse to your November 24, 2025, request for \"all current insurance policies.\"\nRather than requesting additional records that the District had not already\nprovided, your December 9, 2025, request asked the District to identify or itemize parts of the\n755 pages of the provided insurance policy records. The District was not required to analyze the\nrecords it previously provided to clarify which ones were responsive to each portion of your\nsubsequent request. See 5 ILCS 140/3.3 (West 2024) (FOIA \"is not intended to compel public\nbodies to interpret or advise requesters as to the meaning or significance of the public records.\").\nNor was the District required to provide additional copies of the same records\nwhich it had already provided in response to your previous request. Your Request for Review\ndid not describe any specific records that you believed to be maintained by the District that were\nnot included in the 755 pages. Furthermore, the District has confirmed that it consulted with its\ninsurance provider to confirm that it does not possess any records responsive to your December\n9, 2025, request that were not already included in its previous response. Because the available\ninformation indicates that the District's first response encompassed all of the records in the\nDistrict's possession that were also responsive to your subsequent December 9, 2025, request,\nand because the District was not required to interpret or advise you as to the significance of the\nrecords provided, the District did not improperly deny your December 9, 2025, FOIA request\nunder section 3(g) as an unduly burdensome repeated request. Accordingly, this office has\ndetermined that your Request for Review is unfounded.\nAdditionally, this office notes that false legal references are a common problem\nwith the use of chat-GPT and similar artificial intelligence (AI) tools. This office encourages\npeople to exercise caution when using such tools to submit a FOIA request or R equest for\nReview as such tools do not always correctly cite or interpret FOIA's requirements and the prior\nconclusions of this office.\nThis file is closed. If you have any questions, please contact me at (773) 5907878 or benjamin.silver@ilag.gov.\n\nBENJAMIN J. SILVER\nSupervising Attorney\nPublic Access Bureau\n\nOffice of the Illinois Attorney General\n\n\fApril 2, 2026\nPage 4\n91277 f unf sd\ncc:\n\nVia electronic mail\nDr. Kathryn Anderson\nFOIA Officer\nTownship High School District 113\n1040 Park Avenue West\nHighland Park, Illinois 60035-2257\nkanderson@distl 13.org\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1500,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-07-21","case_number":null,"request_numbers":["91704"],"title":"Chicago Police Department properly withheld body camera footage under 7.5(cc) and Body Camera Act","filename":"91704, issued July 21, 2026.pdf","rel_path":null,"word_count":1574,"summary":"A requester sought body camera footage and transcripts from the Chicago Police Department regarding an interaction with a named individual. The Public Access Bureau concluded that CPD did not improperly withhold the records because the requester was not depicted in the recordings and was not the subject of the encounter, and the recordings were not flagged under the Body Camera Act.","plain_summary":"Section 7.5(cc) of FOIA exempts officer-worn body camera recordings except to the extent the Law Enforcement Officer-Worn Body Camera Act allows disclosure. Under that Act, recordings generally may be released only if they are flagged for statutory reasons such as use of force or an arrest, or to a person the Act authorizes, and here the requester was not depicted in or the subject of the recordings and the footage was not flagged. The PAC concluded the police department properly withheld the footage, adding that consent to disclosure is not relevant when the recordings are not flagged.","holding":"The Chicago Police Department did not improperly withhold the requested body camera recordings.","legal_question":"Whether the Chicago Police Department properly withheld body camera footage under FOIA section 7.5(cc) in conjunction with the Law Enforcement Officer-Worn Body Camera Act when the requester was not depicted in the recordings and the recordings were not flagged.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(cc)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(cc)"],"public_body":"Chicago Police Department","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"Body camera footage and transcripts of a police interaction with a named individual in a CPD parking lot.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/91704, issued July 21, 2026.pdf","sha256":"e8e7a2957a83e25c393118f02a6453506d6decbbd204956526bdaf95135a7734","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["body camera footage","police records","FOIA exemption 7.5(cc)","Law Enforcement Officer-Worn Body Camera Act","flagged recordings"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage and transcripts of a parking-lot interaction","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-91704/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 21, 2026\n\nVia electronic mail\n\nVia electronic mail\nMr. Vaughn C. Ganiyu\nAssistant General Counsel\nChicago Police Department\nOffice of Legal Affairs\n3510 South Michigan Avenue\nChicago, Illinois 60653\npacola@chicagopolice.org\nRE: FOIA Request for Review-2026 PAC 91704; CPD no. P122867-120125\nDear Mr.- and Mr. Ganiyu :\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA). 1 For the reasons that follow, the Public Access Bureau concludes that\n�lice Department (CPD) did not improperly withhold records responsive to Mr.\n----November 30, 2025, FOIA request.\nOn that date, - submitted a FOIA request to CPD seeking copies of the\nbody camera footage as well as transcripts of the body camera footage for two officers from a\nspecific interaction with a named person in a CPD parking lot. On January 7, 2026, CPD denied\nthe request pursuant to section 7.5(cc) of FOIA 2 in connection with section 10-20(b) of the Law\n\n1\n\n5 ILCS 140/9.5(±) (West 2025 Supp.).\n5 ILCS 140/7.5(cc) (West 2025 Supp.).\n\n2\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, nlinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fMr. Vaughn C. Ganiyu\nJuly 21, 2026\nPage 2\nEnforcement Officer-Worn Body Camera Act (Body Camera Act). 3 In its denial, CPD explained\nthat-was not depicted on the recordings and therefore was not the subject of the\nencounter, and that he was arrested in connection with the events documented in the recordings\nafter the date the recordings were made. On January 13, 2026,_ submitted the above­\nreferenced Request for Review challenging CPD's denial of the request.\nOn April 14, 2026, this office forwarded a copy of the Request for Review to\nCPD and asked it to provide copies of the withheld recordings for this office's confidential\nreview as well as a detailed written explanation of the factual and legal bases for the applicability\nof anyFOIA exemptions to the recordings, including section 7.5(cc) ofFOIA. This office also\nasked CPD to address whether it possesses the requested transcripts. On May 27, 2026, CPD\nprovided this office with the�materials. On May 28, 2026, this office forwarded a copy\nof CPD's written response to- and notified him of his opportunity to reply; he did not\nreply.\nDETERMINATION\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2024); see also Southern Illinoisan v.\nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2024).\nAs an initial matter, CPD confirmed in its response to this office's inquiry letter\nthat it does not possess transcripts of the body camera recordings. A public body does not\nviolateFOIA when it does not disclose a record that it does not possess. Workmann v. Illinois\nState Board ofEducation, 229 Ill. App. 3d 459, 463-64 (1992); see also Yeager v. Drug\nEnforcement Administration, 678F.2d 315, 321 (D.C. Cir. 1982) (\"[a] requester is entitled only\nto records that an agency has in fact chosen to create and retain.\"). This office has not received\nany information to suggest that CPD possesses the requested transcripts. In the future, when\nCPD responds toFOIA requests that seek multiple records, CPD should respond in a manner that\nallows the requester to understand which parts it is granting, which parts it is denying, and which\nparts seek records it does not possess.\nAs for the body camera recordings, section 7.5(cc) ofFOIA exempts from\ndisclosure \"[r]ecordings made under the Law Enforcement Officer-Worn Body Camera Act,\nexcept to the extent authorized under that Act.\" Section 10-20(b) of the Body Camera Act\nprovides, in relevant part:\n\n3\n\n50 ILCS 706/10-20(b) (West 2024).\n\nOffice of the Illinois Attorney General\n\n\fMr. Vaughn C. Ganiyu\nJuly 21, 2026\nPage 3\nRecordings made with the use of an officer-worn body\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that:\n(1) if the subject of the encounter has a reasonable\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a\ncomplaint, discharge of a firearm, use of force, arrest or\ndetention, or resulting death or bodily harm, shall be\ndisclosed in accordance with the Freedom of Information\nAct if:\n(A) the subject of the encounter captured on\nthe recording is a victim or witness; and\n(B) the law enforcement agency obtains\nwritten permission of the subject or the subject's\nlegal representative;\n(2) except as provided in paragraph (1) of this\nsubsection (b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force,\narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n(3) upon request, the law enforcement agency shall\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter\ncaptured on the recording or to the subject's attorney, or\nthe officer or his or her legal representative. (Emphasis\nadded.)\nUnder these provisions of the Body Camera Act, \"the subject of the encounter\ncaptured on the recording\" may obtain a copy of an officer-worn body camera recording, to the\nextent that the footage is not otherwise exempt from disclosure under a FOIA exemption. Ill.\nAtt'y Gen. Pub. Acc. Op. No 19-001, issued January 9, 2019, at 10. The Public Access Bureau\nhas determined that \"the subject of the encounter\" means a person who appeared in the recording\nand \"interacted with a law enforcement officer in the course of a law enforcement activity. \" 4 Ill.\nThe Body Camera Act defines \"law enforcement-related encounters or activities\" as any \"instance\nin which the officer is enforcing the laws of the municipality, county, or State[,]\" but \"does not include when the\n4\n\nOffice of the Illinois Attorney General\n\n\fMr. Vaughn C. Ganiyu\nJuly 21, 2026\nPage 4\nAtt'y Gen. PAC Req. Rev. Ltr. 48793, issued August 31, 2017, at 4 (concluding that police\nofficer who was discussed in, but not depicted in, body camera recordings was not authorized to\nreceive copies of the recordings under section 10-20(b)(3) of the Body Camera Act).\nwas\nIn its response to this office's inquiry letter, CPD reiterated that\nsubsequently arrested and convicted for the activity described in the police report but was not a\nsubject of the encounter that occurred on March 29, 2022. This office has reviewed CPD's\nresponses to the request and inquiry letter as well as the two recordings. -was not\n�ed in the recordings and therefore was not a subject of the encounter. Accordingly, - is not entitled to obtain the recordings under section 10-20(b)(3) of the Body Camera Act.\nAdditionally, the recordings are not flagged for one of the reasons discussed in\nsections 10-20(b )(1) or 10-20(b )(2) of the Body Camera Act. The recordings were made on\nMarch 29, 2022, and document conversations between an individual and CPD officers in which\nthe individual describes a violent encounter that they have just experienced. The recordings do\nnot depict the arrest or detention of any suspects, and no arrest was made on that date. CPD\nexplained to this office that-was subsequently arrested on May 13, 2022, in\nconnection with the March 29, 2022, incident. This office has previously determined that an\nofficer-worn body camera recording of an encounter with a witness that did not result in an arrest\non the same day as the encounter with the witness is not flagged \"due to * * * arrest or\ndetention,\" even if the recording is related to an incident or investigation in which someone was\npreviously or later arrested. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 82424, issued September 26,\n2024, at 3. Here, given that the recordings neither document - arrest nor were they\nmade during the same encounter in which-was arrested, the withheld recordings were\nnot flagged due to an arrest. 5 Finally, there is no indication that the recordings were flagged for\nany other reasons listed in sections 10-20(b)(l ) or 10-20(b)(2) of the Body Camera Act. Under\nthese circumstances, CPD did not improperly withhold the requested body camera recordings\npursuant to section 7.5(cc) ofFOIA.\n\nofficer is completing paperwork alone, is participating in training in a classroom setting, or is only in the presence of\nanother law enforcement officer.\" 50 ILCS 706/10-10 (West 2024).\nRequest for Review alleges that CPD improperly failed to obtain permission from the\nsubject to disclose the recordings, but as this office has determined the recordings were not \"flagged,\" the subject's\nconsent to disclosure is not relevant.\n\nOffice of the Illinois Attorney General\n\n\fMr. Vaughn C. Ganiyu\nJuly 21, 2026\nPage 5\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. Please contact me at\nkatherine.goldsmith@ilag.gov if you have questions or would like to discuss this matter.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n91704 f 75cc proper pd\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1501,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-02-03","case_number":null,"request_numbers":["91731"],"title":"Village of Antioch properly denied body camera footage to restraining order petitioner not subject of encounter","filename":"91731, issued February 3, 2026.pdf","rel_path":null,"word_count":915,"summary":"The requester sought body camera footage of police serving a restraining order in a matter where he was the petitioner. The Public Access Bureau determined no further action was warranted because the requester was not the subject of the encounter and the footage was not flagged for disclosure under the Body Camera Act.","plain_summary":"Under the Law Enforcement Officer-Worn Body Camera Act (50 ILCS 706/10-20(b)), a requester may obtain body camera footage only if they are the subject of the encounter captured on the recording, or if the footage is flagged for a specific reason (e.g., arrest, use of force, or a complaint). The decisive fact here was that the requester was not present during the encounter and therefore was not a subject of the encounter, even though he was the petitioner in the restraining order matter. Because the footage was not flagged and the requester was not the subject, the Village was prohibited from disclosing it. The PAC rejected the requester's argument that being the petitioner made him a subject of the encounter, clarifying that the statute requires physical presence or visual depiction to qualify as a subject.","holding":"The Village of Antioch properly denied the request for body camera footage because the requester was not the subject of the encounter and the footage was not flagged for disclosure under the Law Enforcement Officer-Worn Body Camera Act.","legal_question":"Whether a requester who is the petitioner in a restraining order matter qualifies as a 'subject of the encounter' under the Body Camera Act so as to be entitled to obtain body camera footage of the service of that order.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","50 ILCS 706/10-20(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Antioch","requesting_party":"Mr. Kevin Mathewson","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"body camera footage","subject_description":"Body camera footage of police serving a restraining order, requested by the petitioner in the restraining order matter.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/91731, issued February 3, 2026.pdf","sha256":"2e2a43f32940b6db5d68c4a3ed8f11da10035990e707547ea6446948a3e03cb7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["body camera footage","subject of encounter","restraining order","Law Enforcement Officer-Worn Body Camera Act"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of serving a restraining order","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-91731/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 3, 2026\n\nVia electronic mail\nMr. Kevin Mathewson\nEditor/Investigative Joumalist\nKenosha County Eye\n620 56th Street\nKenosha, Wisconsin 53140\nkevin@kenoshacountyeye.com\nRE: FOIA Request for Review - 2026 PAC 91731\nDear Mr. Mathewson:\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA). 1 For the reasons set forth below, the Public Access Bureau has\ndetermined that no further action is warranted in this matter.\nOn January 7, 2026, you submitted a FOIA request to the Village of Antioch\n(Village) seeking, in relevant party, a copy of body camera footage of when police served a\nnamed person with a restraining order in a matter in which you are the petitioner. On January\n14, 2026, the Village denied that body camera footage pursuant to section 10-20(b) of the Law\nEnforcement Officer-Worn Body Camera Act (Body Camera Act) (50 ILCS 706/10-20(b) (West\n2024)) because the footage was not flagged and you were not the subject captured on the\nrecording.\nLater that same day you submitted the above-referenced Request for Review\nchallenging the Village's response to your request. You argued that the Village misapplied the\nBody Camera Act because \"[t]he statute does not require that a requester be physically present or\nvisually depicted on camera to qualify as a subject of the encounter, particularly where the\n\n1\n\n5 ILCS 140/9.S(c) (West 2024), as amended by Public Act 104-438, effective January l, 2026.\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, nlinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fMr. Kevin Mathewson\nFebruary 3, 2026\nPage 2\nencounter was undertaken on the requester's behalf and for their protection. \" 2\nSection 7.5(cc) ofFOIA 3 exempts from disclosure \"[r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\" Section 10-20(b) of the Body Camera Act provides, in relevant part:\nRecordings made with the use of an officer-worn body\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that:\n(1) if the subject of the encounter has a reasonable\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint,\ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom oflnformation Act if:\n(A) the subject of the encounter captured on\nthe recording is a victim or witness; and\n(B) the law enforcement agency obtains\nwritten permission of the subject or the subject's\nlegal representative;\n(2) except as provided in paragraph (1) of this\nsubsection (b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force,\narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n(3) upon request, the law enforcement agency shall\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter\ncaptured on the recording or to the subject's attorney, or\nthe officer or his or her legal representative. (Emphasis\nadded.)\n2E-mail from Kevin Mathewson to Leah Bartelt, Public Access Counselor, Office of the Illinois\nAttorney General (January 14, 2026).\n\n5 ILCS 140/7.5(cc) (West 2024), as amended by Public Acts 104-010, effective June 16, 2025;\n104-018, effective June 30, 2025; 104-417, effective August 15, 2025; 104-428, effective August 18, 2025.\n3\n\nOffice of the Illinois Attorney General\n\n\fMr. Kevin Mathewson\nFebruary 3, 2026\nPage 3\nUnder these provisions of the Body Camera Act, \"the subject of the encounter\ncaptured on the recording\" may obtain a copy of an officer-worn body camera recording, to the\nextent that the footage is not otherwise exempt from disclosure under a FOIA exemption. Ill.\nAtt'y Gen. Pub. Acc. Op. No 19-001, issued January 9, 2019, at 10. The Public Access Bureau\nhas previously determined that \"the subject of the encounter\" means a person who appeared in\nthe recording and \"interacted with a law enforcement officer in the course of a law enforcement\nactivity.\"4 You were not the subject of the encounter captured on the requested body camera\nfootage because you were not present. Accordingly, you are not entitled to obtain a copy of the\nfootage under section 10-20(b)(3) of the Body Camera Act. Moreover, the Village confirmed\nthat the footage is not flagged for any of the reasons identified in sections 10-20(b)(1) and (b)(2)\nof the Body Camera Act, and you did not provide information to the contrary. Therefore, the\nVillage was prohibited from disclosing the requested recording(s) to you.\nFor the reasons stated above, the Public Access Bureau has determined that no\nfurther action is warranted in this matter. This file is closed. If you have questions, please\ncontact me at the Chicago address on the bottom of the first page of this letter.\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n91731 f no fi war mun\ncc:\n\nVia electronic mail\nMs. Lori K. Romine\nClerk\nVillage of Antioch\n935 Skidmore Drive\nAntioch, Illinois 60002\nlromine@antioch.il.gov\n\n4\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 48793, issued August 31, 2017, at 4.\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1502,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-06-11","case_number":null,"request_numbers":["94362"],"title":"Cook County Sheriff's Office properly withheld DNA phenotype reports under GIPA","filename":"94362, issued June 11, 2026.pdf","rel_path":null,"word_count":784,"summary":"The requester sought DNA phenotype reports from Parabon Nanolabs held by the Cook County Sheriff's Office. The PAC determined the request was unfounded because the Genetic Information Privacy Act (GIPA) prohibits disclosure of such records.","plain_summary":"Under FOIA, a public body may withhold records if another statute specifically prohibits disclosure. Here, the Genetic Information Privacy Act (GIPA) sections 15(a) and 15(b) bar the Sheriff's Office from disclosing genetic testing reports derived from a biological sample. Because the requested Parabon Nanolabs phenotype report is exactly that type of record, the denial was proper and no further action was warranted.","holding":"The PAC determined the request was unfounded because the Sheriff's Office properly withheld the records under GIPA.","legal_question":"Whether the Cook County Sheriff's Office properly denied a FOIA request for DNA phenotype reports based on the Genetic Information Privacy Act's prohibition on disclosure.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","410 ILCS 513/15(a)","410 ILCS 513/15(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Cook County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"genetic information","subject_description":"DNA phenotype reports from Parabon Nanolabs for an unsolved murder case.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/94362, issued June 11, 2026.pdf","sha256":"0d2ab2cf2f044640f6255eb7d8a588e6bb0ba2f1dca592465680941943e516b6","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["genetic information","DNA phenotype report","GIPA","FOIA exemption 7(1)(a)","police records"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"DNA phenotype reports for an unsolved murder case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-94362/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 11, 2026\n\nVia electronic mail\n\nRE: FOIA Request for Review - 2026 PAC 94362; R092286-050526\nDear-:\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA). 1 For the reasons explained below, the Public Access Bureau has\ndetermined that this Request for Review is unfounded.\nOn May 4, 2026, you submitted a FOIA request to the Cook County Sheriffs\nOffice (Sheriffs Office) seeking \"[c]opies of documents from Parabon Nanolabs services,\nincluding Snapshot Advanced DNA services 'Phenotype Report\"' 2 for a named individual. You\nalso stated \"I am a retired law enforcement officer serving as a victim advocate for the family of\na 1982 murder victim which remains unsolved. I seek the requested public records in order to\ndevelop a strategy to persuade the DuPage County Sheriffs Office to engage in the services of\nParabon NanoLabs.\" 3 On May 5, 2026, the Sheriffs Office denied your request pursuant to\n\n1\n\n5 ILCS 140/9.S(c) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\n2Cook County Sheriffs Office, Freedom of Information Act Request form, submitted by­\n(May\n4,\n2026).\n3\n\nE-mail fro� to FOIA Officer, Cook County Sheriffs Office (May 4, 2026).\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, nlinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAttomeyGeneral.gov\n\n\fsection 7(1)(a) ofFOIA 4 in connection with unspecified provisions of the Genetic Information\nPrivacy Act (GIPA) (410 ILCS 513/1 et seq. (West 2024)). On May 12, 2026, you submitted\nthis Request for Review challenging the denial.\nSection 7(1)(a) ofFOIA exempts from disclosure \"[i]nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" Although the Sheriffs Office did not cite specific sections of the GIPA, section\n15(a) of the GIPA 5 provides, in relevant part:\nExcept as otherwise provided in this Act, genetic testing\nand information derived from genetic testing is confidential\nand privileged and may be released only to the individual tested\nand to persons specifically authorized, in writing in accordance\nwith Section 30 [410 ILCS 513/30], by that individual to receive\nthe information. (Emphasis added.)\nSection 15(b) of the GIPA 6 additionally provides, in relevant part:\nWhen a biological sample is legally obtained by a peace\nofficer for use in a criminal investigation or prosecution,\ninformation derived from genetic testing of that sample may be\ndisclosed for identification purposes to appropriate law\nenforcement authorities conducting the investigation or\nprosecution[.] * * *\nThe information shall be confidential and may be\ndisclosed only for purposes of criminal investigation or\nprosecution. (Emphasis added.)\nIn your Request for Review, you alleged that the Sheriffs Office improperly\ndenied your request in its entirety rather than disclosing copies of responsive records with\nredactions. The plain language of the above-quoted provisions of the GIPA, however,\nspecifically prohibit the Sheriffs Office from disclosing genetic testing and any information\nderived therefrom pursuant to FOIA. Your FOIA request expressly sought a Phenotype Report,\n5 ILCS 140/7(1)(a) (West 2024), as amended by Public Acts 104-438, effective January 1, 2026;\n104-443, effective January 1, 2026. Although the Sheriffs Office instead cited section 7(1)(a-5), section 7(1)(a-5) is\na renumbering of section 7(1)(a) that has not yet taken effect. See Public Act 104-300, effective January 1, 202 7\n(adding a new section 7(1)(a) and redesignating former section 7(1)(a) as section 7(1)(a-5)).\n4\n\n5\n\n410 ILCS 513/lS(a) (West 2024).\n\n6\n\n410 ILCS 513/lS(b) (West 2024).\n\nOffice of the Illinois Attorney General\n\n\fwhich is a report derived from genetic testing of a biological sample. This office reviewed the\nParabon Nanolabs website, which explains how such reports are generated: \"Snapshot reads tens\nof thousands of genetic variants ('genotypes') from a DNA sample and uses this information to\npredict what an unknown person looks like.\" 7 Because sections 15(a) and 15(b) of the GIPA\nspecifically prohibit the Sheriffs Office from disclosing the record(s) you requested, this office\nconcludes that no further action is warranted as to this matter.\nThis file is closed. If you have any questions, please contact me at\nmatthew.goodman@ilag.gov.\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n94362 f no fi war sho\ncc:\n\nVia electronic mail\nMs. Tracy Ho\nAssistant General Counsel\nCook County Sheriffs Office\n50 West Washington, Room 704\nChicago, Illinois 60602\nccso.foiaofficer@ccsheriff.org\n\nThe Snapshot DNA Phenotyping Service, Parabon Nanolabs, https://snapshot.parabon­\nnanolabs.com/phenotyping (last visited June 11, 2026).\n7\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1503,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-06-30","case_number":null,"request_numbers":["94590"],"title":"Streamwood FOIA personhood-verification request for review was premature; PAC advises written verification suffices","filename":"94590, issued June 30, 2026.pdf","rel_path":null,"word_count":2539,"summary":"A requester who submitted an anonymous FOIA request was told by the Village of Streamwood that he had to verify by telephone that he was a person. The PAC found his Request for Review premature because the Village had not yet denied the request, and closed the matter, while advising that written verification suffices under section 3(j).","plain_summary":"Under section 3(j), a public body that reasonably believes a request was not submitted by a person may require the requester to verify personhood 'orally or in writing.' The request for review was premature because the village had demanded verification but had not yet denied the request, so the PAC closed the matter without a finding. It nonetheless advised that the choice of method belongs to the requester, reasoning that letting a public body insist on oral verification would make it harder to obtain records and could expose a caller's identity or phone number, and it recommended that the village accept written verification that reasonably indicates a requester is a person.","holding":"The Request for Review was premature because the Village had not yet denied the request, so no further action was warranted; the PAC advised that section 3(j) lets the requester choose to verify personhood orally or in writing and recommended that the Village accept written verification.","legal_question":"May a public body require oral verification that a FOIA requester is a 'person' under section 3(j), or is written verification sufficient?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3(j)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Streamwood","requesting_party":null,"pac_outcome":"Improperly required oral verification","pac_law_type":null,"subject_category":"verification of personhood","subject_description":"A FOIA request submitted anonymously led to a dispute over whether the public body could require oral verification that the requester was a person, rather than accepting written verification.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_j/94590, issued June 30, 2026.pdf","sha256":"b21f871668a622c62cfa9220b84b7769d6b39fdd3ae6521bd9495b85b5148be8","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["anonymous request","verification of personhood","oral verification","written verification","FOIA section 3(j)"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Whether a requester may verify personhood in writing or orally","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-94590/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 30, 2026\n\nVia electronic mail\n\nVia electronic mail\nMr. Josh Peacock, CPA\nFinance Director\nVillage of Streamwood\n1301 East Irving Park Road\nStreamwood, Illinois 60107\nFOIA@streamwood.org\nRE: FOIA Request for Review - 2026 PAC 94590\nDear - and Mr. Peacock:\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA). 1\nOn May 20, 2026, after business hours,\nsubmitted an anonymous\nFOIA request to the Village of Streamwood �n May 21, 2026, the Village Finance\nDirector, Mr. Josh Peacock, sent an e-mail to - anonymous e-mail address notifying\nhim that:\nThe Village has a reasonable belief that this request was not\nsubmitted by a person and therefore requires verification that the\nrequester is a person. Please verify orally, calling my direct line\nlisted below, that you are a person within 30 days of this notice (no\nlater than June 20, 2026). If you fail to verify within that 30-day\n1\n\n5 ILCS 140/9.S(c) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\f\"-\"'!!I\nJune 30, 2026\nPage 2\n\nperiod, the Village may deny the request pursuant to 5 ILCS 140/\n3(j). Thank you![2l (Emphasis in original.)\nLater that afternoon, -sent an anonymous e-mail to the Village pertaining to the\nmeaning of section 3(i) of FOIA3 and stated: \"For your knowledge, I am a person.\" 4 Less than\nten minutes later, Mr. Peacock replied to him by e-mail to reiterate that he needs to \"verify\norally\" by calling Mr. Peacock's direct phone number. 5 That same day,-submitted a\nRequest for Review to the Public Access Counselor alleging that the Village improperly insisted\non oral verification that he is a person instead of accepting his e-mail verification.\nPursuant to section 9 .5 (a) of FOIA6 \"[a] person whose request to inspect or copy\na public record is denied by a public body * * * may file a request for review with the Public\nAccess Counselor[.]\" (Emphasis added.) Section 3(d) of FOIA7 provides that \"[e]ach public\nbody shall, promptly, either comply with or deny a request for public records within 5 business\ndays after its receipt of the request, unless the time for response is properly extended under\nsubsection (e) of this Section.\" (Emphasis added.) In addition, section 3(i) of FOIA provides:\nWithin 5 business days after its receipt of the request, a\npublic body that has a reasonable belief that a request was not\nsubmitted by a person may require the requester to verify orally or\nin writing that the requester is a person. The deadline for the\npublic body to respond to the request shall be tolled until the\nrequester verifies that he or she is a person. If the requester fails\nto verify that he or she is a person within 30 days after the public\nbody requests such a verification, then the public body may deny\nthe request. For purposes of this subsection (i), a public body may\nnot require the requester to submit personal information, private\ninformation, or identifying information to verify that the requester\n1s a person.\nE-mail from Josh Peacock CPA Finance Director, Village of Streamwood,\n(May 21, 2026,10:07 a.m.).\nFOIA@streamwood.org, to\n2\n\n3\n\n5 ILCS 140/3G)(West 2024),as amended by Public Act 104-438, effective January 1, 2026.\n\n4\n\nE-mailfrom\n\nto FOIA@streamwood.org(May2l , 2026, 3:3 9 p.m.).\n\nE-mail from Josh Peacock CPA Finance Director,Village of Streamwood,\n(May 21, 2026, 3 :45 p.m.).\nFOIA@streamwood.org, to\n5\n\n6\n\n5 ILCS 140/9.5(a)(West 2024),as amended byPublic Act 104-438, effective January 1, 2026.\n\n7\n\n5 ILCS 140/3(d)(West 2024),as amended by Public Act 104-438, effective January 1, 2026.\n\nOffice of the Illinois Attorney General\n\n\fMr. Josh Peacock\nJune 30, 2026\nPage 3\nrequest on May 21, 2026. Therefore, the\nThe Village received\nVillage had until the end of the day on May 29,2026,to respond to his request,whether pursuant\nto section 3(d) of FOIA or pursuant to the tolling provision of� of FOIA, or to extend\nthe time for a response under section 3(e) ofFOIA. 8 Because-submitted his Request\nfor Review to the Public Access Counselor on May 21,2026, the Village had not yet denied his\nrequest at the time he submitted his Request for Review. Accordingly, the Request for Review\nwas premature, and the Public Access Bureau concludes that no further action is warranted in\nthis matter.\nThe Public Access Bureau is also charged with providing advice and education to\nthe public and public bodies. 9 To that end,this office notes that the Village required to respond to its request to��.��.is a person, under section 3(j) of FOIA, orally�\ntelephoning Mr. Peacock. -- asserts that section 3 (j) ofFOIA allowed him the option to\nverify that he is a person in writing, including by e-mail, or orally.\nIn construing a statutory provision such as section 3(j) of FOIA, the primary goal\nis to ascertain and effectuate the intent of the General Assembly. Southern Illinoisan v. Illinois\nDepartment ofPublic Health, 218 Ill. 2d 390,415 (2006). The best indicator of legislative intent\nis the language of the statute, which must be given its plain and ordinary meaning. Board of\nEducation ofSpringfield School District No. 186 v. Attorney General ofIllinois , 2017 IL 120343,\n,i 24. \"When the statutory language is clear and unambi guous, it should be applied as written\nwithout resort to extrinsic aids or tools of interpretation.\" Paris v. Lake Holiday Property\nOwners Ass'n, 2013 IL 113907,,i 47 (2013).\nSection 3(j) of FOIA provides, in part, that \"[w]ithin 5 business days after its\nreceipt of the request,a public body that has a reasonable belief that a request was not submitted\nby a person may require the requester to verify orally or in writing that the requester is a person.\"\n(Emphasis added.) The word \"or\" is disjunctive, connoting two different alternatives.\nElementary School District 159 v. Schiller, 222 Ill. 2d 130, 145 (2006). The plain language of\nsection 3(j) is ambiguous because it is unclear whether the public body or the requester has\ndiscretion to choose the method that is used to verify that the requester is a person. It could be\nunderstood to mean that the public body has the option of requiring a person to verify that they\nare a person only in writing or only orally, as the Village appeared to do in its May 21, 2026,\nwritten verification. Alternatively, the sentence could mean that\nresponse to\nalthough the public body may require a person to verify that they are a person, the requester has\ndiscretion to decide whether to do so orally or in writing.\nWhen statutory language is ambiguous or unclear, a reviewing body may look\n8\n\n5 ILCS 140/3(e)(West2024),as amended by Public Act 104-438, effective January 1, 2026.\n\n9\n\n15 ILCS 205/7(a), (c) (West 2024).\n\nOffice of the Illinois Attorney General\n\n\fMr. Josh Peacock\nJune 30, 2026\nPage 4\nbeyond the act's language to construe its meaning, and use extrinsic aids of statutory\nconstruction, including legislative history and well-established rules of construction. Paris, 2013\nIL 113907, ,-r 47. See also Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 106 (2013)\n(\"where the language used leaves uncertainty as to how it should be interpreted in a particular\ncontext, the court can consider the purpose behind the law and the evils the law was designed to\nremedy.\"). \"A fundamental principle of statutory construction is to view all provisions of a\nstatutory enactment as a whole. Accordingly, words and phrases should not be construed in\nisolation, but must be interpreted in light of other relevant provisions of the statute.\" Southern\nIllinoisan, 218 Ill. 2d at 415. A statute should not be construed in a way that would defeat its\npurpose. Phoenix Bond & Indemnity Co., 194 Ill. 2d at 107. Moreover, section 1.01 of the\nStatute on Statutes10 provides that \"[a]ll general provisions, terms, phrases and expressions shall\nbe liberally construed in order that the true intent and meaning of the General Assembly may be\nfully carried out.\"\nTherefore, section 3(i) must be liberally construed in the broader context of FOIA\nas a whole and the purposes behind the law to give effect to the intent of the General Assembly.\nSection 1 of FOIA 11 declares that it is \"the public policy of the State of Illinois that all persons\nare entitled to full and complete information regarding the affairs of government and the official\nacts and policies of those who represent them as public officials and public employees [.]\" The\nIllinois Supreme Court has found that the clear intent of FOIA is \"to provide the public with easy\naccess to government information,\" that FOIA is to be afforded a liberal construction, and that a\npublic body must disclose a requested record unless one of the narrow statutory exemptions\napplies. Southern Illinoisan, 218 Ill. 2d at 416-17. Thus, section 3(i) of FOIA must be read in\nline with FOIA's intent of making public records accessible to the public, not as a vehicle to\nprevent the release of records to the public or to place obstacles for members of the public to\nobtain records.\nIn addition, the verification language of section 3(i) may not be read in isolation,\nbut must be read as part of 3(i) as a whole; the last sentence of section 3(i) provides: \"For\npurposes of this subsection (i), a public body may not require the requester to submit personal\ninformation, private information, or identifying information to verify that the requester is a\nperson.\" Section 2(c-5) of FOIA 12 provides, in pertinent part, that \"'[p]rivate information' means\nunique identifiers, including* * * home or personal telephone numbers[.]\" Moreover, this office\nhas consistently determined that FOIA does not prohibit a person from submitting an anonymous\nrequest or using a method of submission that conceals the person's identity. See, e.g., Ill. Att'y\nGen. PACReq.Rev. Ltr 51672, issued April 27, 2020, at 2. Requiring a requester to verify their\n10\n\n5 ILCS 70/1.01 (West 2024).\n\n11\n\n5 ILCS 140/1 (West 2024).\n\n12\n\n5 ILCS l 40/2(c-5) (West 2024), as amended by Public Act I 04-438, effective January 1, 2026.\n\nOffice of the Illinois Attorney General\n\n\fMr. Josh Peacock\nJune 30, 2026\nPage 5\nidentity by telephoning the public body could potentially reveal the caller's personal telephone\nnumber, resulting in the release of private information. Requiring oral verification by telephone\nor by appearing in person also could deprive a requester of anonymity because the requester's\nidentity may be discerned from their physical appearance or voice.\nThis office is also guided by the expressed legislative intent and public policy\nsought to be effected by section 3(j) of FOIA, which was enunciated by members of the General\nAssembly in the House of Representatives debate on Senate Bill 243 (which, as Public Act 104438, effective January 1, 2026, enacted, among other amendments, section 3(j) of FOIA). The\nfollowing exchanges amongst Representative Didech and Representative Windhorst evinces the\nlegislative intent:\nDidech: \"Thank you, Mr. Speaker. Senate Bill 243 makes various\nchanges to the Freedom of Information Act and the Open Meetings\nAct. The purpose of those acts is to ensure government\ntransparency, accountability, and public participation. These acts\nare thoughtfully structured to accomplish those goals while\nprotecting safety and ensuring the efficient operation of\ngovernment. This legislation enhances all of those goals. What\nI'm presenting today is a modest but meaningful set of reforms that\nI believe will improve how government functions in Illinois. * * *.\nThere are some cybersecurity issues addressed by this bill that will\nprovide an opportunity for public bodies to verify that a requester\nis a human being and not an automated generated FOIA request.\n***\"\n***\nWindhorst: \"[U]nder the Freedom of Information Act, * * *\nif a public body has a reasonable belief that a request was not made\nby a person, they may require the requester to verify orally in\nwriting that they are, in fact, a person, and that will, I believe,\nextend a deadline or toll a deadline. Would you just describe that a\nlittle more in detail?\"\nDidech: \"Yeah. So, there's an emerging problem that a lot of our\npublic bodies are having, especially our school districts, where\nthey are really being inundated and overwhelmed with freedom of\ninformation requests that are very obviously not being submitted\nby a human being. And it's some sort of AI or other automated\nsoftware that's submitting them, and that the records that get\n\nOffice of the Illinois Attorney General\n\n\fMr. Josh Peacock\nJune 30, 2026\nPage 6\nreleased are, it appears, are never even being reviewed by human\nbeings. So, our local school districts are having to expend a lot of\nresources responding to and releasing these records that nobody\neven looks at. So, we're putting this process in place that will\nallow those public bodies to verify that an actual human being is\nsubmitting the request before they release the records.\" Remarks\nof Rep. Didech and Rep. Windhorst, May 31, 2025, House Debate\non Senate Bill No. 243, at 194 -197.\nThese comments clarify that section 3(j) was enacted to relieve public bodies from responding to\nburdensome FOIA requests generated by automated software, rather than human beings, without\ndiminishing the transparency requirements of FOIA.\nReading section 3(j) of FOIA as giving a requester discretion to verify that they are\na person either orally or in writing 13 is harmonious with the language in section 3(j) that protects\nrequesters from being compelled to disclose personally-identifying information, while still giving\nthe public body an opportunity to interact with a requester, prior to responding to a request, to\nallow it to determine that the requester is a person. Such an interpretation is also consistent with\nthe expressed legislative intent of section 3(j) and with FOIA as a whole. In contrast, construing\nsection 3(j) to enable a public body to refuse to accept written verification and insist that a\nrequester orally verify that they are a person would undermine the fundamental purpose of FOIA\nby making it more difficult for members of the public to obtain public records. Accordingly, if it\nis not already doing so, this office recommends that the Village accept written verification that\nreasonably indicates a requester is a person.\nThis file is closed. If you have any questions, please contact me at 312-814-5201,\nedie.steinberg@ilag.gov, or at the Chicago address listed on the bottom of the first page of this\nletter.\nVery truly yours,\n\n94590 f premature mun\n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n13 Pursu ant to section3(c) ofFOIA(5 ILCS 140/3(c)(West 2024 ), as amended by Public Act 104438, effective January 1, 2026) a writing includes written requests \" submitted to a public body via p ersonal deliveiy,\nm ail, telefax, or othermeans available to the p ublic body[,]\" including\"[e]lectronic requests\" which \"must appear in\ntheir entirety within the body of the electronic submission.\"\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1504,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-05-08","case_number":null,"request_numbers":["87466"],"title":"University of Illinois Board of Trustees violated OMA with three-day advance request for public comment","filename":"87466, issued May 8, 2026.pdf","rel_path":null,"word_count":3525,"summary":"The requester alleged that the University of Illinois Board of Trustees' rule requiring three business days' advance written request to speak at public comment violated OMA. The PAC determined the rule violated Section 2.06(g) of OMA.","plain_summary":"Section 2.06(g) gives the public a right to address a public body under that body's established and recorded rules. The university board argued this lets it adopt any rule it likes and refused a speaker who asked two days before a meeting because it required written requests three business days ahead. The PAC rejected that reading, reasoning that the right to address officials would be meaningless if a body could impose any limit on comment simply by recording a rule, found that the advance-request deadline violated section 2.06(g), and advised the board to revise its rule and allow later sign-ups to speak when time permits.","holding":"The University of Illinois Board of Trustees violated Section 2.06(g) of OMA by imposing a three-business-day advance request deadline for public comment.","legal_question":"Whether a public body's rule requiring three business days' advance written request to speak at public comment violates OMA Section 2.06(g).","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"University of Illinois Board of Trustees","requesting_party":"Mr. John Kraft","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The Board's rule requiring three business days' advance written request to speak at public comment.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/87466, issued May 8, 2026.pdf","sha256":"45e346078cda21c63a211232e047761b030f7241f322e484101663ff51ae0160","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["public comment","advance request deadline","open meetings act","university board"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A board's advance-request rule for public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-87466/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 8, 2026\n\nVia electronic mail\nMr. John Kraft\njohn@illinoisleaks.com\nVia electronic mail\nMr. Scott E. Rice\nUniversity Counsel\nOffice of University Counsel\nUniversity of Illinois System\n258 Henry Administration Building\n506 South Wright Street\nUrbana, IL 61801\nc/o Ms. Andrea Schneider\nAssistant Campus Legal Counsel\nArsl 8@ullinois.edu\nRE: OMA Request for Review - 2025 PAC 87466\nDear Mr. Kraft and Mr. Rice:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons explained below, the Public Access\nBureau concludes that the University of Illinois Board of Trustees (Board) violated Section\n2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2024)) in connection with its May 22, 2025,\nmeeting.\n\nBACKGROUND\nOn June 15, 2025, this office received a Request for Review from Mr. John Kraft\nalleging that the Board's public comment rule, which requires persons who wish to address the\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 2\nBoard request permission to do so in writing three business days before the meeting, violates\nOMA. Specifically, Mr. Kraft stated:\nI am alleging the University of Illinois violated the Open\nMeetings Act, Section 2.06, Right to Speak.\nSee attached pdf, which is the original request to speak, their\nreply, and my response which went unanswered.\n-On May 20, 2025, at 8:35 a.m., I emailed a request to speak\nat the May 22 board meeting\n-On May 20, 2025, at 12:58 p.m., the university denied my\nrequest stating it was received after the 3-working day posted\ndeadline\n-On May 20, 2025, at 1: 17 p.m., I responded, providing a\nlink to AG Binding Opinion 14-012, and asked them to reconsider\n- no response was returned\n-The board denied my right to speak at its May 22, 2025\nmeeting\nThe PAC has previously determined, in Binding Opinion 14012, that requiring advanced notice to speak prior to the mandated\n48-hour meeting notice requirements in the OMA violates the Open\nMeetings Act.[IJ (Emphasis in original.)\nIn support of his allegation, Mr. Kraft submitted a copy of his May 20, 2025, e-mail to the Office\nof the Secretary for the Board, requesting to provide public comment about the Board's public\ncomment policy at the May 22, 2025, meeting. He also provided a copy of Ms. Marla Todd's,\nthe Board's Assistant Secretary, May 20, 2025, e-mail response denying his request. Ms. Todd\nresponded: \"I am writing regarding your request to speak at the Board of Trustees meeting on\nThursday, May 22, 2025, in Champaign. Because your request was received after the posted\ndeadline of 8:00am on Monday, May 19, Secretary Stein is unable to approve your request.\" 2\nMr. Kraft responded on May 20, 2025, requesting that the Board reconsider that denial, citing Ill.\nAtt'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014. Mr. Kraft asserts that the\nBoard did not respond to his request to reconsider.\nOn June 26, 2025, this office sent a copy of the Request for Review to the Board\nand requested that the Board or its representative provide a written response to the allegations in\n1 E-mail from John Kraft, Edgar County Watchdogs, Inc., to AG PAC (June 15, 2025).\n2E-mail from Marla Todd, Assistant Secretary, Office of the Secretary of the Board of Trustees\n\nand of the University, University of Illinois System, to John Kraft (May 20, 2025).\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 3\nthe Request for Review. We also asked the Board to provide copies of all requests that were\nsubmitted to participate in the public comment portion of the Board's May 22, 2025, meeting as\nwell as copies of the Board's responses to those requests.\nOn July 8, 2025, the Board submitted a response letter and the requested\nmaterials, asserting that the Board's policy complies with OMA, as the Board was following its\nproperly established and recorded rules concerning public comment. On July 21, 2025, Mr.\nKraft replied to the Board as follows:\nThe board admits it requires signing up for public comment three\nbusiness days prior to a meeting. * * * The board states they allow\na total of thirty minutes per meeting for public comment. The board\nadmits that, for the meeting in question, there were five people\nsigned up in advance (which would have taken fifteen of the thirty\nminutes allotted for public comment). Even if all five advanced\nsign-ups actual spoke at the meeting, this left enough time for an\nadditional five speakers to speak for three minutes each. The rules\nestablished by this board are unreasonable and serve to restrict\npublic comment.(31\nDETERMINATION\nSection 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\nThe Board's rules governing public comment provide, in pertinent part:\n1. Requests to address the Board: Requests to appear\nbefore the Board to make comments to or ask questions of the Board\nmust be received by the Secretary in writing no later than three\nbusiness days before the Board meeting at which the individual\nwishes to speak. The Secretary will review this request and notify\nthe person making the request whether he/she may give public\ncomment at the next meeting. The request should set out clearly the\nnature of the subject matter to be presented and must relate to\nmatters within the jurisdiction of the Board of Trustees. In making\na request to appear before the Board, individuals must give their\n\n3 E-mail from John Kraft to Steven Silverman (July 21, 2025).\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 4\nnames and any relevant title or affiliation. Substitute speakers will\nnot be permitted. [4l\nIn its response to this office, the Board acknowledged that it denied Mr. Kraft's\nrequest to address the Board because he did not submit his request at least three business days\nbefore the meeting. The Board asserted that the plain language of section 2.06(g) gives public\nbodies unfettered discretion to restrict public comment as long as they do so in accordance with\ntheir established and recorded rules: \"Had the drafters of the OMA intended for there to be\nconstraints on the rules public bodies could enact regarding public comment, the text of Section\n2.06(g) would reflect those limitations.\"5 In support of this assertion, the Board cites the\nfollowing comment by Representative Kosel on May 26, 2010, during the House Debate on\nHouse Bill 5483 (which as Public Act 96-1473, effective August 23, 2010, enacted section\n2.06(g) of OMA): \"Senate Amendment #2 clarifies that local governing bodies are able to create\nwhatever rules they would like to create for open meeting comment.\" That amendment to the\nwording of section 2.06(g) provided that members of the public would be permitted to address\n\"public officials under the\" rules of the public body. 96th Ill. Gen. Assembly, House Bill 5483,\nSenate Amendment No. 2, 2010 Sess.\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. Deluna v. Burciaga, 223 Ill. 2d 49, 59\n(2006). A reviewing body \"has a duty to avoid a construction of the statute that would defeat the\nstatute's purpose or yield an absurd or unjust result.\" People v. Latona, 184 Ill. 2d 260, 269\n(1998). Statutes must be construed \"so that each word, clause, and sentence, if possible, is given\na reasonable meaning and not rendered superfluous [citation], avoiding an interpretation which\nwould render any portion of the statute meaningless or void.\"\n\"Section 2.06(g) of OMA cannot reasonably be construed as granting members of\nthe public a statutory right to address public officials on the one hand while permitting public\nbodies to unconditionally abridge that right.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 45349, issued\nMarch 16, 2017, at 3. The right to address public officials would be rendered meaningless if\nsection 2.06(g) authorized public bodies to impose any limit on public comment-no matter how\nrestrictive-simply by establishing and recording a rule. Such an interpretation would, for\nexample, permit public bodies to categorically prohibit members of the public from addressing\npublic officials at certain meetings altogether, or limit each speaker's opportunity to provide\ncomment to just a few seconds. The amendment to House Bill 5483 and one-sentence comment\n4\nUniversity of Illinois Board of Trustees, Procedures Governing Appearances Before the Board of\nTrustees (revised July 11, 2024).\n\nLetter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (July 8, 2025), at 3.\n5\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 5\nby Representative Kosel do not demonstrate that the General Assembly intended such a result.\nThe language of the amendment, which created a right to address public officials that did not\npreviously exist, also must be given effect. People v. Woodward, 175 Ill. 2d 435, 444 (1997) (a\nreviewing body \"must consider the language of an amended statute in light of the need for\namendment and the purpose it serves.\"). If public bodies had unlimited discretion to impose\nrestrictive rules under section 2.06(g) of OMA, the right to address public officials articulated by\nthat provision would be no right at all.\nThe Attorney General has issued a binding opinion which concluded that \"public\nbodies may generally promulgate reasonable 'time, place and manner' regulations that are\nnecessary to further a significant governmental interest. * * * [T]he primary purpose of adopting\nrules governing public comment pursuant to section 2.06(g) of OMA is to accommodate the\nspeaker's statutory right to address the public body, while ensuring that the public body can\nmaintain order and decorum at public meetings.\" Ill. Att'y Gen. Pub. Acc. Op. 14-012, at 5-6.\nBecause section 2.06(g) is intended to ensure that members of the public have an opportunity to\naddress public officials at open meetings, rules adopted under 2.06(g) are invalid when they do\nnot reasonably \"accommodate a speaker's statutory right to address the public body, while\nensuring that the public body can maintain order and decorum at public meetings.\" Ill. Att'y\nGen. Pub. Acc. Op. 14-012, at 6. Accordingly, our determination in this matter hinges on\nwhether the Board's requirement that speakers sign up for public comment at least three business\ndays before its meetings is a reasonable rule.\nThe Board asserts that its rules ensure that the Board hears public comment on a\ndiversity of relevant issues and that the Board is able to carry out efficient and effective\nmeetings, adding that \"[t]he requirement to submit requests for public comment three days\nbefore the Board meeting allows the Secretary to review the requests, determine which requests\nto grant pursuant to the [rules], and prepare for the meeting.\"6 In support of the advance sign up\nrequirement, the Board stated that decisions must be made after the deadline expires so the\nrequests may be reviewed to determine \"which have been submitted in accordance with the\n[rules] and, if the Secretary receives requests in excess of the allotted thirty minutes, how to\nprioritize the requests to maximize the diversity and number of public comments the Board is\nable to hear.\"7 (Emphasis added.) Notably, the Board's response to this office stated that at the\nMay 22, 2025, meeting where Mr. Kraft was prohibited from addressing the Board, three\nspeakers provided public comment for a total of nine minutes and that two additional speakers\nwho signed up for public comment cancelled.\n\n6Letter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (July 8, 2025), at 4.\n7Letter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\n\nBureau, Office of the Attorney General (July 8, 2025), at 4.\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 6\nA rule that promotes order by requiring members of the public to sign up in\nadvance to address a public body does not violate the First Amendment to the United States\nConstitution if it is reasonable in time and scope. Timmon v. Jeffries, No. l:08-CV-645, 2009\nWL 270043, at *3 (W.D. Mich. Jan. 30, 2009) (collection of sign-up forms immediately before\npublic comment portion of meeting was a permissible narrowly tailored restriction); see also\nBach v. School Board of City of Virginia Beach, 139 F. Supp. 2d 738, 741 (E.D. Va. 2001)\n(requiring speakers to sign up in advance of meeting is a reasonable content neutral regulation).\nHowever, an advance sign-up rule that is enforced to prevent a member of the public from\naddressing a public body violates OMA if it is not reasonably necessary to promote a significant\ngovernmental interest. Compare Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, at 6 (rule requiring\nmembers of the public to sign up to comment five days in advance of meetings, before the board\nwas required to post its agenda, imposed an unreasonable restriction on public comment); with\nIll. Att'y Gen. PAC Req. Rev. Ltr. 39640, issued June 22, 2016, at 3 (rule requiring prospective\ncommenters to sign up by start of meeting did not unreasonably restrict the right to public\ncomment).\nThe Board rule cited above, pursuant to which Mr. Kraft's request to address that\nBoard was denied, contains five requirements. A request must be made: (1) to the Secretary; (2)\nin writing; (3) no later than three business days before the next scheduled Board meeting; (4)\nwith the subject matter stated; and (5) with the subject matter relating to the matters within the\njurisdiction of the Board. Requiring written notice \"three business days before\" a meeting means\nthat it is possible that a request to address the Board is required before the Board is legally\nrequired to post a notice or agenda for such meeting. Because section 2.02(a) of OMA (5 ILCS\n120/2.02(a) (West 2024)) only requires the Board to post an agenda at least 48 hours in advance\nof the meeting, a person must request permission to speak and provide the topic of his or her\ncomments before the Board is required to post its meeting agenda.\nThe Board's response to this office emphasized that although not required by law,\nits \"meeting agenda is purposefully posted several days before the public comment deadline\nspecifically to allow the public time to review the agenda and determine if they would like to\nrequest to speak. \"8 The Board added that \"members of the public are permitted to make a\nrequest to address the Board at any time prior to the deadline under the [rules], meaning they do\nnot need to wait for the agenda to be posted to submit their request.\"9 The Board argued that Mr.\nKraft \"could have easily\" signed up for public comment at least three business days before the\nMay 22, 2025, meeting because the topic he wished to address-the Board's public comment\n\n8Letter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (July 8, 2025), at 5.\n9Letter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\n\nBureau, Office of the Attorney General (July 8, 2025), at 5.\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 7\nrules-was not an agenda item. 10 That presumes Mr. Kraft determined that he wished to\ncomment on the Board's public comment rules several days before the May 22, 2025, and before\nthe deadline for signing up expired.\nAs noted above, public comment at the Board's May 22, 2025, meeting consisted\nof three speakers addressing the Board for a total of nine minutes. Even if the two other speakers\nwho signed up but cancelled had addressed the Board, 15 minutes of the allotted public time\nwould still have been available under the Board's rules. Although there may be meetings where\nthe number of requests to address the Board exceed the 30-minute limit, rigidly enforcing a\nthree-business day advance sign-up requirement regardless of the number of speakers who have\nsubmitted requests is not a reasonable restriction on public comment.\nFurther, the Public Access Bureau has previously determined that the same rule at\nissue in this Request for Review-the Board's requirement that an individual wishing to speak at\na Board meeting must sign up no later than three business days before the meeting-violates\nsection 2.06(g) of OMA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 50470, issued April 18, 2018, at 5.\nThis office determined that \"[a] sign up sheet set out just prior to the meeting asking for the\nnames of individuals who wish to address the Board could accomplish the same goal of running\na timely and orderly meeting, but in a much less restrictive manner.\" 11 That determination\ninvolved a small village board, and this office does not discount the possibility that some larger\npublic bodies with higher attendance and interest in public comment may require some\nadditional time to make arrangements. But it is unreasonable to prohibit speakers from\naddressing the Board unless they submit a request to do so at least three business days prior to a\nmeeting and before OMA requires the meeting agenda to be posted, regardless of the Board's\nhistorical practice of posting the agenda well in advance of the statutory 48-hour deadline.\nWhile there is a governmental interest in making plans for an efficient meeting and maintaining\norder and decorum, the Board has not shown that the three business-day advance sign-up\nrequirement is reasonably necessary to protect a significant governmental interest, particularly\nwhen the Board could legally hold a meeting with merely 48 hours of advance notice. Given that\nthe May 22, 2025, Board meeting only had five requests to address the Board, leaving half of the\nallotted 30 minutes of public comment available, it is apparent that the application of this rule\ndid not accommodate public comment, but instead unreasonably restricted members of the public\nfrom exercising their statutory right to address the Board.\nIn this instance, Mr. Kraft submitted his request to address the Board in writing to\nthe Board Secretary nearly 48 hours before the May 22, 2025, meeting. The Board has not\nasserted that it was unable to accommodate his request without disrupting its ability to hold an\n10Letter from Scott E. Rice, University Counsel, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (July 8, 2025), at 5.\n11\n\nIll. Att'y Gen. PAC Req. Rev. Ltr. 50470, issued April 18, 2018, at 5.\n\nOffice of the Illinois Attorney General\n\n\fMr. John Kraft\nMr. Scott E. Rice\nMay 8, 2026\nPage 8\nefficient meeting, that doing so would have made it more difficult for the Board to maintain\norder or decorum at the meeting, or that denying the request was reasonably necessary to further\nanother significant public interest. Nevertheless, the Board declined to permit Mr. Kraft to\naddress the Board because he failed to submit a written request at least three business days\nbefore the meeting as required by the Board rule. The Board's response to this Request for\nReview provides no reason for this office to depart from its prior determination that a three­\nbusiness-day advance sign-up requirement unreasonably restricts public comment. Accordingly,\nthis office concludes that the Board violated section 2.06(g) of OMA by denying Mr. Kraft's\nrequest to address the Board.\nIn accordance with the conclusions expressed above, this office requests that the\nBoard revise its rule that currently requires prospective speakers to submit requests to participate\nin public comment at least three business days before Board meetings. If the Board chooses to\nrequire speakers to submit requests to speak before its meetings commence, it should prioritize\nthe public's statutory right to address the Board over administrative convenience and refrain from\nimposing a deadline that exceeds the minimum amount of time necessary to make arrangements\nfor an efficient meeting. This office also recommends that the Board's rule acknowledge the\npossibility of allowing the public to sign up after the deadline until enough speakers have been\nselected to fill the full 30-minute period that the Board allots for public comment, and to apply\nthe rule to permit additional speakers who sign up after the deadline, when time during the\nmeeting permits.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nMichael.Malik@ilag.gov. This file is closed.\n\nMICHAEL G. ·MALIK\nAssistant Attorney General\nPublic Access Bureau\n87466 o 206g pub comment improper univ\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1505,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-07-31","case_number":null,"request_numbers":["90482","90548"],"title":"Joliet Township High School District 204 Board violated OMA by signing letter outside meeting","filename":"90482 90548, issued July 31, 2026.pdf","rel_path":null,"word_count":3048,"summary":"A board member requested review alleging the Joliet Township High School District 204 Board of Education violated OMA by holding an undisclosed private meeting through a majority of members signing and sending a letter to the administration. PAC determined the Board violated section 2(e) by taking final action on the letter outside an open meeting.","plain_summary":"Under OMA, a public body must conduct all final actions in an open meeting. The decisive fact here was that a majority of Board members signed a letter expressing support and responding to concerns, and then sent it to the administration—this constituted a final decision made privately, not during a properly noticed open meeting. The reasoning is that even though the members did not physically gather, their coordinated signing and sending of the letter outside a meeting effectively decided the matter, which is prohibited. The PAC concluded this violated section 2(e) because the action was final and taken outside the public forum.","holding":"The Board violated OMA section 2(e) by effectively taking final action on the letter outside of an open meeting.","legal_question":"Whether a majority of board members signing and sending a letter to the administration outside of an open meeting constitutes a violation of OMA's requirement that final action be taken in an open meeting.","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Joliet Township High School District 204 Board of Education","requesting_party":"Ms. Angela Huntington","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"A majority of school board members signed and sent a letter to the school administration expressing support and responding to concerns, which was deemed final action taken outside an open meeting.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2_a/90482 90548, issued July 31, 2026.pdf","sha256":"4b7fed096c0826df6a64b9139bd5d464aa6a5105ecdb2ca8fcd44d0a336bf95a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["final action","open meeting","school board","letter","section 2(e)"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school board's letter signed by a majority of members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-90482/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAMERAOUL\nATTORNEY GENERAL\n\nJuly 31, 2026\n\nVia electronic mail\nThe Honorable Angela Huntington\nMember, Board of Education\nJoliet Township High School District 204\nangh81 O@gmail.com\nVia electronic mail\nThe Honorable Tom Fitzpatrick\nMember, Board of Education\nJoliet Township High School District 204\neggsand2@yahoo.com\nVia electronic mail\nMr. John Fester\nAttorney for Joliet Township High School District 204\nHimes Petrarca & Fester\n180 North Stetson, Suite 3100\nChicago, IL 60601\njfester@edlawyer.com\nRE: OMA Request for Review - 2025 PAC 90482; 2025 PAC 90548\nDear Ms. Huntington, Mr. Fitzpatrick, and Mr. Fester:\nThis consolidated determination is issued pursuant to section 3.5(e) of the Open\nMeetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)).\n\nBACKGROUND\nOn November 5, 2025, Ms. Angela Huntington submitted a Request for Review\n(2025 PAC 90482) to the Public Access Bureau alleging that the Joliet Township High School\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\n115 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nwww.IllinoisAnomeyGeneral.gov\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 2\nDistrict 204 (District) Board of Education (Board) violated OMA by holding an undisclosed,\nprivate meeting on or after October 22, 2025. Specifically, Ms. Huntington stated that a majority\nof the Board's members sent a letter to the High School's Administrative Team, expressing its\nsupport and responding to concerns raised at the Board's October 21, 2025, meeting. 1 She stated\nthat this letter was sent to the Administrative Team without the knowledge of the entire Board\nand that the Board did not discuss drafting this letter during one of its meetings. Because the\nletter made several references to \"the majority of the board,\" Ms. Huntington argued that Board's\ndiscussion constituted a \"meeting,\" as defined by section 1.02 of OMA. 2\nOn November 9, 2025, Mr. Tom Fitzpatrick submitted a Request for Review\n(2025 PAC 90548) to the Public Access Bureau alleging the same OMA violation. Mr.\nFitzpatrick stated that during the Board's October 21, 2025, meeting, the members had discussed\nthe results of a yearly survey, which suggested \"only a 29 percent belief in the direction and\nleadership of the administration.\"3 He learned that the letter at issue, signed by a majority of the\nboard, was sent without his knowledge after this meeting.4\nOn November 17, 2025, this office forwarded a copy of Ms. Huntington's Request\nfor Review (2025 PAC 90482) to the Board and asked it to provide a written response addressing\nwhether a majority of the Board held any undisclosed \"meetings\" to discuss the letter sent to the\nAdministrative Team. On November 20, 2025, this office also forwarded a copy of Mr.\nFitzpatrick's Request for Review and asking the Board to address the same allegations. On\nNovember 25, 2025, this office received the Board's response. On December 1, 2025, this office\nforwarded a copy of the Board's response to Ms. Huntington and Mr. Fitzpatrick. On December\n4, 2025, Ms. Huntington submitted her reply; Mr. Fitzpatrick did not reply.\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA (5 ILCS 120/2(a)\n\n1\n\nE-mailfrom AngelaHuntington,JTHS School Board Member, to Leah Bartelt, Public Access\nCounselor, Public Access Bureau (November 5, 2025).\n2\n\n5 ILCS 120/1.02 (West 2024).\n\n3\n\nE-mail from Tom Fitzpatrick, JHTS School Board Member, to Leah Bartelt, Public Access\nCounselor, Public Access Bureau (November 5, 2025).\n4\n\nE-mail from Tom Fitzpatrick, JHTS School Board Member, to Leah Bartelt, Public Access\nCounselor, Public Access Bureau (November 5, 2025).\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 3\n(West 2024)) provides that \"[a]ll meetings of public bodies shall be open to the public unless\nexcepted in subsection (c) and closed in accordance with Section 2a.\"\n\"Meetings\" subject to OMA\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\" as\ndefined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, of a majority of a quorum of the members of a\npublic body held for the purpose of discussing public business[.]\nUnder this statutory definition, a \"meeting\" may include telephone calls and other\ncommunications. The Board is comprised of seven members.5 Accordingly, four members of\nthe Board comprise a quorum, and a majority of the quorum is three members. Therefore, any\ncontemporaneous, interactive communications involving at least three members of the Board\nwhich concern \"public business\" would ordinarily constitute a meeting of the Board that would\nbe subject to the procedural safeguards and requirements of OMA.\nThe Public Access Bureau has consistently determined that at least a majority of a\nquorum of a public body's members must actively interact with each other in group\ncommunications during a short duration to trigger the requirements of OMA. Compare Ill. Att'y\nGen. PAC Req. Rev. Ltr. 88826, issued March 11, 2026 (separate communications between\nsuperintendent and individual board members concerning appointment process did not constitute\na meeting where the communications involved no more than two board members) with Ill. Att'y\nGen. PAC Req. Rev. Ltr. 61343, issued February 25, 2020 (conference call in which more than a\nmajority of quorum of board members discussed village matters constituted a meeting, even if\nconducted in an informal manner).\nSerial communications or \"rolling meetings\" do not meet the definition of a\nmeeting under OMA. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 81208, issued March 26, 2025, at\n10-11. The definition of \"meeting\" in section 1.02 of OMA requires a \"gathering,* * * of a\nmajority of a quorum of the members of a public body held for the purpose of discussing public\nbusiness[.]\" (Emphasis added.) A \"gathering\" is defined as a \"coming together of people in a\nLetter from John Fester, Himes Petrarca & Fester, to Teresa Lim, Deputy Bureau Chief, Publie\nAccess Bureau (November 25, 2025), at 3.\n5\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 4\ngroup (as for social, religious, or political purposes)[.] 116 Thus, the Public Access Bureau has\npreviously concluded:\nA one-on-one verbal discussion or an e-mail or text message\nexchange between two members of public body is a coming\ntogether of two members in a group-not at least three members,\nas is required for a gathering of majority of a quorum of the seven­\nmember Board to trigger the requirements of OMA. * * * If the\nGeneral Assembly wishes to prohibit an individual member of a\npublic body from holding individual one-on-one conversations that\ncumulatively add up to a majority of a quorum of the members of a\npublic body, it would have to amend the definition of 'meeting' in\nOMA to account for that circumstance. Ill. Att'y Gen. PAC Req.\nRev. Ltr. 81208, at 10-11.\nIn its answer to this office, the Board acknowledged that it had some\ncommunications concerning the letter at issue but denied that those communications constituted\na \"meeting\" under OMA. The Board explained that:\nAt a Board meeting held on October 21, 2025, a Board member\nmade reference to a survey result claiming that only 29% of\nstakeholders supported the direction and leadership of the District's\nadministration. Concerned about the negative impact on the\nDistrict's administration, the next day Board President Matt\nKennedy drafted a letter of support he intended to send to the\nadministration. Believing that members Fitzpatrick (who filed this\ncomplaint) and Huntington would not si gn such a letter, Mr.\nKennedy did not ask them if they would sign . [7J\nAccording to the Board, the President contacted four members individually through phone calls\nand text messages, and three of them agreed to si gn the letter. The Board argued that those\ncommunications were not meetings because they were spread apart and involved only two\nmembers at any time:\nMr. Kennedy spoke briefly to Mr. Coffey (12:52 p.m.), who\ndeclined, and briefly to Ms. Lynne (7:34 a.m.) who agreed. These\n6\n\nMerriam-Webster Online Dictionaiy, https://www.merriam-webster.com/ dictionaiy/ gathering.\n\nLetter from John Fester, Himes Petrarca & Fester, to Teresa Lim, Deputy Bureau Chief, Pub lie\nAccess Bureau (Novem ber 25, 2025), at I.\n7\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 5\none-on-one phone calls took place over five hours apart,\neliminating any possibility of treating the calls as contemporaneous\nsufficient to establish a gathering.\nSimilarly, Mr. Kennedy's phone call with Ms. Stiff\nhappened at 10:54 a.m. when she called him back, andhis call with\nMs. Guerrero Neumayer was at 10:06 a.m. when she called him\nback. These times were not selected by Mr. Kennedy and occurred\nnearly one hour apart. [8l\nAdditionally, the Board asserted that the communications were limited in nature\nin that none of the three members who sign ed the letter offered edits or otherwise contributed to\nthe letter's contents. The Board contended that the President \"simply asked each Board member\nif, sight unseen, they wanted to put their signature on his letter of support for the District 's\nadministrators. Each Board member answered for themselves and then independently sent their\nelectronic signatures to Superintendent Guseman who put them on the letter.\" 9 The\nSuperintendent then sent \"Mr. Kennedy's letter of support on behalf of the four Board members\"\nto the Administrative Team on October 22, 2025 .10\nHaving reviewed the Board's response, the phone calls and text messages did not\nconsist of contemporaneous interactive communications involving a majority of a quorum of the\nBoard. While the topic of those communications-the leadership of the District's administration,\npertained to public business-the communications were held on a one-on-one basis.\nCommunications involving no more than two Board members do not meet the definition of a\n\"meeting\" for purposes of OMA. Accordingly, this office is unable to conclude that the Board\nheld improper private meetings.\nAs discussed below, however, a public body may take final action that is subject\nto the requirements of section 2(e) of OMA11 by reaching and implementing a decision even if\nthe public body does not hold a gathering that constitutes a \"meeting.\"\n\nLetter from John Fester, Himes Petrarca & Fester, to Teresa Lim, Deputy Bureau Chief, Publie\nAccess Bureau (November 25, 2025), at 3.\n8\n\nLetter from John Fester, Himes Petrarca & Fester, to Teresa Lim, Deputy Bureau Chief, Publie\nAccess Bureau (November 25, 2025), at 3.\n9\n\n10\nLetter from John Fester, Himes Petrarca & Fester, to Teresa Lim, Deputy Bureau Chief, Public\nAccess Bureau (November 25, 2025), at 2.\n11\n\n5 ILCS l 20/2(e)(West 2024), as amended by Public Act I 04-438, effective January I, 2026.\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 6\nFinal Actions\nSection 2(e) of OMA provides that \"[n]o final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being\nconsidered and other information that will inform the public of the business being conducted.\"\nOne-on-one communications among a public body's members are not ordinarily meetings, but\nreaching a consensus through a series of one-on-one communications and implementing a\ndecision outside of an open meeting may constitute final action that is subject to section 2(e).\nSee Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013 IL App (1st)\n122446, 129 (vacating the board's decision to deny disability benefits because the board had\ncirculated the decision for sign atures privately rather than voting on it in open session).\nThe Public Access Bureau has previously determined that a public body violated\nOMA when it reached a decision on a matter of public business through individual\ncommunications with public body members and took action to implement that decision. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 58555, issued August 20, 2019 (finding that a Board's decision to\nsuspend camping in a park, reached after a series of two-member conversations among Board\nmembers outside of an open meeting, violated OMA); Ill. Att'y Gen. PAC Req. Rev. Ltr. 74113,\nissued June 7, 2023 (board violated section 2(e) when it conducted phone polls with individual\nmembers on whether to approve or reject certain proposed actions and implemented those\nactions prior to voting on them at a board meeting).\nIn his Request for Review, Mr. Fitzpatrick contended that the four members who\nsigned the letter coordinated a position outside of an open meeting and noted that the letter \"was\nsent to the District's Administrative Team sign ed 'on behalf of the majority of the members of the\nschool board' on JTHS letterhead.\" 12 Ms. Huntington similarly contended in her reply to the\nBoard's answer that the letter was presented as a collective or unified position of the Board:\nWhile Mr. Fester's response describes a series of one-on-one\ncommunications between Board President Matt Kennedy and other\nBoard members, the cumulative effect of these contacts appears to\nhave resulted in a coordinated Board action-a letter expressing\nthe collective support of a majority of the Board. The OMA is\nintended to prevent not only simultaneous gatherings but also\nserial communications that result in deliberation or decision making outside of a properly noticed public meeting. The fact that\nfour Board members agreed to sign a letter, which was then\npresented as a unified Board position, raises concerns about\nE-mail from Tom Fitzpatrick, JHTS School Board Member, to Leah Bartelt, Public Access\nCounselor, Public Access Bureau (November 5, 2025).\n12\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 7\nwhether public business was discussed and decided outside of\npublic view.[ 13 l\nThe Board disputed Ms. Huntington's and Mr. Fitzpatrick's characterization of the\nletter as a coordinated or collective position of the Board. In particular, the Board contended that\nthe letter was \"not an official Board statement or Board action. It is the exercise of various Board\nmembers' right to speak freely outside of Board meetings to express their opinions on matters of\npublic concern.\" 14 The Board further argued that \"[t]he letter does not purport to be on behalf of\nthe Board. It is clearly expressing the opinions of four Board members, just as Dr. Huntington's\nstatement expressed her own opinions.\" 15\nAs discussed above, the letter at issue expresses support for the District's\nAdministration Team. The letter begins by stating that it was written \"on behalf of the majority\nof the members of the school board in light of the events at the October board meeting.\" 16 The\nletter then thanks the administrations for its work and dedication, and states that \"[t]he majority\nof the board felt it was imperative to let our administrative team know that we believe in your\nability to lead, your ability to make connections, and most importantly, we believe in each of you\nas professionals.\" 17 The letter expresses further support and is signed by the four members.\nBased on this office's review, the Board's letter amounted to more than merely an\nexpression of the opinions of individual Board members. A member of the public could have\nreasonably interpreted the letter, signed by a \"majority of the board\" on District letterhead and\naddressing District business, to be an official statement of the Board in support of the\nadministrative team. Here, the Board President drafted the letter and invited four members to\nsign the letter; the remaining two members were not contacted because their position was already\nknown. The four members who signed the letter constitute a majority of the Board. While the\nBoard did not formally cast votes on the letter, the Board members reached and implemented a\nfinal decision by signing the letter and sending it to the administration. Rather than acting\nindividually, the letter reflects the Board as manifesting support for the administrative team as a\nunified majority in response to a purportedly unfavorable survey result. See Ill. Att'y Gen. PAC\n13\n\nE-mail from Angela Huntington to AAG Lucente-McCullough (December 4, 2025).\nE-mail from John E. Fester to Assistant AG Lucente-McCullough (December 8, 2025).\n\n14\n\nE-mail from John E. Fester to Assistant AG Lucente-McCullough (December 8, 2025).\n\n15\n\nLetterfromMatthew Kennedy, Board President, et al., to JTHS Administrative Team (October\n\n16\n\n22, 2025).\n17\n\n22, 2025).\n\nLetterfrom Matthew Kennedy, Board President, et al., to JTHS Administrative Team (October\n\nOffice of the Illinois Attorney General\n\n\fThe Honorable Angela Huntington\nThe Honorable Tom Fitzpatrick\nMr. John Fester\nJuly 31, 2026\nPage 8\nReq. Rev. Ltr. 21599, issued March 19, 2013, at 2 (determining that a board violated section 2(e)\nwhen four of five board members signed a letter in support of a wage ordinance outside of an\nopen meeting and sent the letter to the city council). Under these circumstances, this office\nconcludes that the Board violated section 2(e) by effectively taking final action on the letter\noutside of an open meeting.\nBecause of the finality of the letter which has been sent to the District\nadministration, no remedial action is available at this time. This office cautions the Board to\nrefrain from the same manner of privately making and implementing decisions in the future.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at the Chicago address listed on the first page of this letter.\nVery truly yours,\n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\nTERESA LIM\nDeputy Bureau Chief\nPublic Access Bureau\n90482 90548 o 2a meeting proper 2e final action improper sd\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1506,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-06-12","case_number":null,"request_numbers":["91103"],"title":"Des Plaines Park District Board violated OMA by insufficient agenda notice for appointment","filename":"91103, issued June 12, 2026.pdf","rel_path":null,"word_count":2883,"summary":"A park district board chose a candidate to fill a commissioner vacancy at an October meeting whose agenda said only 'Personnel' and 'Approve Items Discussed in Executive Session'; the PAC found a violation of the section 2.02(c) agenda-notice requirement but found the closed-session discussion of candidates permissible under section 2(c)(3).","plain_summary":"Under OMA, a public body must describe the general subject matter of a final action on its agenda (section 2.02(c)). The park district board voted in open session in October to select a specific candidate for a vacant commissioner seat, but its agenda listed only 'Personnel' and 'Approve Items Discussed in Executive Session,' which gave no notice of an appointment, so the PAC found a notice violation; the December agenda was adequate and ratified the action, so no further remedy was needed. The PAC also held that the closed-session discussion of candidates was permitted under section 2(c)(3), which covers selecting a person to fill a public office, because the final vote occurred in open session, and that OMA does not require listing the closed-session exception on the agenda.","holding":"The Board violated OMA by failing to properly list the appointment on the meeting agenda, but did not violate OMA by discussing the appointment in closed session.","legal_question":"Whether the Des Plaines Park District Board violated OMA by failing to provide proper agenda notice of a commissioner appointment and by discussing the appointment in closed session.","disposition":"partial_violation","primary_statute":["5 ILCS 120/2(c)","5 ILCS 120/2a"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Des Plaines Park District Board of Commissioners","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"Appointment of a commissioner to fill a vacant seat on the Des Plaines Park District Board.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.02/2.02_c/Duty-to-list-general-subject-matter-of-final-action-on-agenda/91103, issued June 12, 2026.pdf","sha256":"c38512eac54a00b15f8202828639b454f9dbcfd39851c7d535e50ef152850238","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["meeting agenda","appointment","closed session","notice requirement"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Appointment of a park district board commissioner","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-91103/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJune 12, 2026\n\nVia electronic mail\n\nVia electronic mail\nMr. Andrew S. Paine\nAttorney for Des Plaines Park District\nTressler LLP\n233 South Wacker Drive, 61st Floor\nChicago, Illinois 60606\napaine@tresslerllp.com\nRE: OMA Request for Review-2025 PAC 91103\nDear-and Mr. Paine:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2024)).\n\nBACKGROUND\nOn December 10, 2025,\nsubmitted a Request for Review to the\nPublic Access Bureau alleging that the Des Plaines Park District Board of Commissioners\n(Board) appointed an individual to fill a vacant commissioner seat at its October 21, 2025,\nmeeting without having any prior discussions in open session concerning the appointment. She\nbelieved that those discussions were improperly held in private meetings.\nfurther\nalleged that the Board did not properly list the appointment of the commissioner on the October\n21, 2025, meeting agenda.\n\n■■■■■\n\nOn January 6, 2026, this office forwarded a copy of the Request for Review to the\nBoard and asked it to provide this office with copies of its October 21, 2025, meeting agenda,\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 2\nminutes, and closed session verbatim recording for this office's confidential review, together\nOMA allegations. On January 7, 2026, the Board\nwith a written response to\nadvised this office that it had voted on a resolution concerning the appointment of a\ncommissioner at its December 16, 2025, meeting. On February 4, 2026,-indicated to\nthis office that the Board's vote at that meeting did not resolve her complaint. On March 5, 2026,\nthis office received the Board's response to the Request for Review, which included a copy of the\nverbatim recording of the closed session discussion concerning the Board vacancy. 1 On March\nl she replied on\n6, 2026, this office forwarded a copy of the Board's response to\nMarch 10, 2026.\nI submitted materials to provide context to the timeline of the\nappointment process and the closed session at the October 21, 2025, meeting.\n\n■■■■\n\n■■■■\n\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2024). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).\nFinal Action\nSection 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) requires that an\nagenda \"set forth the general subject matter of any resolution or ordinance that will be the subject\nof final action at the meeting.\" OMA does not define the term \"general subject matter.\"\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-827, effective\nJanuary 1, 2013, added section 2.02(c) of OMA, indicates that the General Assembly intended\nthis provision to ensure that agendas provide sufficiently descriptive advance notice of the\nmatters upon which a public body anticipates taking final action:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a *\n* * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that - that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\n1 1n its written answer, the Board advised that it had discovered that a portion of the verbatim\n\nrecording was lost due to the batteries running out in the recorder.\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 3\nAdditionally, section 2(e) of OMA2 provides that \"[n]o final action may be taken\nat a closed meeting. Final action shall be preceded by a public recital of the nature of the matter\nbeing considered and other information that will inform the public of the business being\nconducted.\" The term \"final action\" generally does not encompass intermediate steps taken by a\npublic body in the process of resolving a matter. Gosnell, 179 Ill. App. 3d at 176 (concluding\nthat a board of education's closed session decision to pursue mediation as an alternative to its\nongoing negotiations with the secretaries' union was part of the process of reaching a final action\nrather than final action itself). However, reaching a consensus and implementing a decision\noutside of an open meeting is final action rather than an intermediate step. See Howe v.\nRetirement Board of the Firemen's Annuity & Benefit Fund, 2013 IL App (1st) 122446,, 29\n(2013) (vacating the board's decision to deny disability benefits because the board had circulated\nthe decision for signatures privately rather than voting on it in open session); Lawrence v.\nWillams, 2013 IL App (1st) 130757,, 21 (2013) (signing of written decisions by two out of three\nboard members outside of an open meeting constituted final action in violation of OMA); Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 58555, 58614, 58615, issued August 20, 2019, at 3 (public body\ntook final action by reaching a consensus to prohibit camping at a park and implementing that\ndecision by posting \"no camping\" signs before voting on the matter at a subsequent meeting).\nIn its answer to this office, the Board stated that it discussed several candidates to\nfill a commissioner vacancy in closed session at the October 21, 2025, meeting. The Board\ndenied, however, that it took final action at that meeting to fill the open position, asserting that it\nonly reached a consensus on a final candidate:\nAfter returning to open session, the Park Board documented their\nconsensus to offer the appointment to Mr. Alan Osinski by formal\nvote. Staff was also directed to inform Mr. Osinski of the Park\nBoard's decision, ask if he remained willing to serve, and if so, add\nan action item for his formal appointment to a future meeting\nagenda_[3 l\nThe Board argued that the appointment did not take place until a later meeting held on December\n16, 2025:\nThe appointment of Mr. Osinski to fill the Park Board\nvacancy occurred during the December 16, 2025, Park Board\nmeeting as demonstrated by the agenda and meeting minutes. The\nagenda clearly listed both the resolution appointing Mr. Osinski as\n2 5 ILCS 120/2(e) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n3 Letter from Andrew S. Paine, Tressler LLP, to Teresa Lim, Deputy Bureau Chief, Public Access\n\nBureau (March 5, 2026), at 2.\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 4\nwell as the subsequent administration of the oath of office.\nLikewise, the minutes reflect these same things, as well as a public\ndiscussion, Board vote, and Mr. Osinski formally assuming his seat\nas a Park Board commissioner. [4l\nThe Board's October 21, 2025, meeting agenda listed an Executive Session to\nconsider \"Personnel\" and various other issues. 5 Following this item, the agenda indicated the\nBoard would return to open session and stated: \"A. Action Item 14-A: Approve Items Discussed\nin Executive Session. \"6 The meeting minutes document that the Board did hold a closed session.\nUpon returning to open session, the Board voted on one matter:\n14-Al Commissioner Haas made a motion appoint Alan Osinski to\nfill the vacancy of the open Park Board Seat.\nSeconded by Commissioner Williams.\nRoll Call: = Haas yes, Williams yes, Doerr yes and President\nGrady yes\nApproved 4 - 0[7l\nAs discussed above, the Board voted on a resolution related to this appointment at its December\n1 6, 2025, meeting. The meeting minutes state, under item I of \"New Business\":\nAction Item 9 - I: Approval of Resolution #25-12 Appointment to\nFill Park Board Vacancy\nDiscussion: Executive Director Don Miletic stated that after\nconducting a search to fill the vacant seat on the Des Plaines Park\nBoard of Commissioners, that was advertised in the Journal &\nTopics Newspaper, Park District's website, and its social media\" a\nrecommendation is being presented for approval. At the regular\nmeeting of the Park Board of Commissioners on October 21st,\n2025, the Park Board adjourned Executive Session, returning to the\nRegular Board Meeting to provide direction to Executive Director\n4Letter from Andrew S. Paine, Tressler LLP, to Teresa Lim, Deputy Bureau Chief, Public Access\n\nBureau (March 5, 2026), at 4.\n\n5 Des Plaines Park District, Agenda Item 14 (October 21, 2025).\n6Des Plaines Park District, Agenda Item 14 (October 21, 2025).\n7Des Plaines Park District Board, Meeting, October 21, 2025, Minutes 5.\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 5\nDon Miletic. Executive Director Miletic further stated that the\nconsensus of the Park Board was to direct the Executive Director\nto present candidate Alan Osinski with the offer of Park Board\nCommissioner and begin preparation for his appointment with\nofficial appointment in December 2025, should he accept.\nAdoption of Resolution #25-12 is being presented to the Park\nBoard of Commissioners on December 16th,2025 to confirm the\nappointment of Alan Osinski and grant him the title of\nCommissioner of the Des Plaines Park Board.\nMotion by Commissioner Doerr to approve Resolution #25-12\nFor the Appointment of Alan Osinski to Fill the Park Board\nVacancy.\nSecond by: Commissioner Haas\nRoll call: Commissioners Haas, Aye; Doerr, Aye; Grady, Aye;\nWilliams, Aye. Ayes: 4, Nays: 0, Absent: 0\nMotion Carried: 4-0-0[8 l\nHaving reviewed the submitted information, the Board took final action when it\nvoted at the October 21, 2025, meeting to \"appoint Alan Osinski to fill the vacancy of the open\nPark Board Seat.\" By selecting a final candidate and directing the Executive Director to extend\nan offer to Mr. Osinski, the Board had already reached a final decision and implemented the\ndecision prior to the December 1 6, 2025, meeting. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr.\n77643, issued October 22, 2024 (board took final action by reaching a consensus on a final\ncandidate for a position outside of an open meeting and offering the position a few weeks later to\nthe candidate). The Board's vote on the resolution approving his appointment and Mr. Osinski's\nswearing in at that meeting simply formalized Mr. Osinski's acceptance of the position.\nThe vague reference to \"Personnel\" and Item 14A of the Board's October 21,\n2025, meeting agenda-\"Approve Items Discussed in Executive Session\"-did not remotely\nprovide advance notice that the Board would appoint a commissioner. Because the Board took\nfinal action by voting on a final candidate to fill the commissioner vacancy and because the\nagenda did not sufficiently describe the general subject matter of that action, this office\nconcludes that the Board violated the notice requirements in section 2.02(c) in connection with\nits October 21, 2025, meeting.\n\nDes Plaines Park District Board, Meeting, December 16, 2025, Minutes 5.\n\n8\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 6\nThe Board's December 16, 2025, meeting agenda listed the following relevant\nitem: \"I. Action Item 9 - I: Approval of Resolution #25-12 Appointment to Fill Park Board\nVacancy. \" 9 This item sufficiently identified the general subject matter of the Board's filling of\nthe commissioner vacancy. Because the Board's vote on this item ratified the final action taken\nat the prior October 21, 2025, meeting, no further remedial action is necessary.\nClosed Session Discussion\nAs noted above, the Board confirmed it discussed candidates for the\ncommissioner position in closed session at the October 21, 2025, meeting. The Board asserted\nthat the discussion fell within the scope of section 2(c)(3) of OMA, 10 which permits a public\nbody to discuss in closed session:\nThe selection of a person to fill a public office, as defined\nin this Act, including a vacancy in a public office, when the\npublic body is given power to appoint under law or ordinance, or\nthe discipline, performance or removal of the occupant of a public\noffice, when the public body is given power to remove the\noccupant under law or ordinance. (Emphasis added.)\nThe Board acknowledged that it did not identify the section 2(c)(3) exception in the meeting\nagenda as one of the bases for the planned closed session, but it nonetheless maintained that the\ndiscussion was permissible because it is authorized to fill commissioner vacancies pursuant to\nsection 2-25 of the Park District Code (70 ILCS 1205/2-25 (West 2024)). That provision\nprovides, in relevant part:\nWhenever any member of the governing board of any park\ndistrict (i) dies, (ii) resigns, (iii) becomes under legal disability,\n(iv) ceases to be a legal voter in the district, (v) is convicted in any\ncourt located in the United States of any infamous crime, bribery,\nperjury, or other felony, (vi) refuses or neglects to take his or her\noath of office, (vii) neglects to perform the duties of his or her\noffice or attend meetings of the board for the length of time as the\nboard fixes by ordinance, or (viii) for any other reason specified by\nlaw, that office may be declared vacant. Vacancies shall be filled\nby appointment by a majority of the remaining members of the\nboard. (Emphasis added.)\n9Des Plaines Park District, Agenda Item 9, New Business (December 12, 2025).\n105 ILCS 120/2(c)(3) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 7\nAlthough it is helpful to include in the agenda the exceptions that may serve as\nthe basis for a planned closed session at a meeting, 11 OMA does not require a public body to do\nso. Therefore, the Board did not violate OMA by not listing the relevant closed session\nexceptions in the October 21, 2025, meeting agenda, though it must still adhere to the procedure\nset forth in section 2a of OMA 12 for closing a meeting.\nTurning to the substance of the discussion in the closed session, this office's\nreview of the verbatim recording of the closed session confirmed that the Board discussed the\nmerits of several candidates who had applied to fill the commissioner vacancy. During the\ndiscussion, the Board weighed the qualifications of each of those candidates. In her reply,.\n-contended that the timeline of the appointment process evidenced \"a collective decision\nregarding the board vacancy may have been reached in closed session and later ratified through a\nsubsequent public vote.\" 13 \"Under the plain language of section 2(e) of the Open Meetings Act,\nthe public vote is not merely a ratification of a final action taken earlier in a closed session; it is\nthe final action.\" Board ofEducation ofSpringfield School Dist. No. 186, 2017 IL 120343, ,r 74;\nsee also Jewell v. Board ofEducation, 19 Ill. App. 3d 1091, 1095 (1974) (\"[T]he fact that there\nwere two votes taken, one at the closed and one at the open session, should not be considered a\nviolation of the open meeting law.\") Because the Board voted on a final candidate in open\nsession at the October 21, 2025, meeting, any tentative consensus reached during the closed\nsession did not constitute the final action. Accordingly, this office concludes that the Board's\ndiscussion in closed session concerning the qualifications of the individual candidates was\npermissible under section 2(c)(3) of OMA.\n\nSee 5 ILCS 120/2a (West 2024), as amended by Public Act 104-438, effective January 1, 2026\n(\"At any open meeting of a public body for which proper notice under this Act has been given, the body may,\nwithout additional notice under Section 2.02, hold a closed meeting in accordance with this Act.\").\n11\n\n12 5\n\nILCS 120/2a (West 2024), as amended by Public Act 104-438, effective January 1, 2026\n(requiring that \"a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the\nminutes of the meeting.\").\n1\n\n3 E-mail from\n\nto Ms. Lim and Mr. Paine (March 10, 2026).\n\nOffice of the Illinois Attorney General\n\n\fMr. Andrew S. Paine\nJune 12, 2026\nPage 8\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at the Chicago address listed on the first page of this letter.\n\nTERESA LIM\nDeputy Bureau Chief\nPublic Access Bureau\n91103 o 202c notice improper 2c4 proper pkd\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1507,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-03-13","case_number":null,"request_numbers":["91361"],"title":"Village of Broadview Board violated OMA by holding fully remote meetings under local executive order","filename":"91361, issued March 13, 2026.pdf","rel_path":null,"word_count":1935,"summary":"The requester alleged the Village of Broadview Board of Trustees violated OMA by holding fully remote meetings on three dates in November and December 2025. The PAC determined the Board violated OMA because no provision of the Act authorized the Village President's executive order to hold remote meetings based on a local civil emergency declaration.","plain_summary":"Under OMA, public bodies must hold meetings with a quorum physically present unless a specific statutory exception applies. The only remote-meeting exceptions are for certain disaster declarations by the Governor or the Director of the Illinois Department of Public Health, not for a local executive order by a municipal head. Because the Board relied solely on the Village President's civil emergency declaration—which OMA does not recognize as a valid basis for remote meetings—the meetings violated the Act. The decisive fact was that the Board lacked any OMA-authorized justification for meeting without a quorum physically present.","holding":"The Village of Broadview Board of Trustees violated OMA by improperly holding fully remote meetings on November 17, 2025, December 1, 2025, and December 15, 2025.","legal_question":"Did the Village of Broadview Board of Trustees violate OMA by holding fully remote meetings based on a local executive order declaring a civil emergency?","disposition":"violation_found","primary_statute":["5 ILCS 120/7"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Broadview Board of Trustees","requesting_party":"Ms. Judy Brown-Marino and Ms. Angela Patterson","pac_outcome":"Improperly held remote meetings","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The Board held three regular meetings entirely remotely, relying on a local executive order declaring a civil emergency, without meeting any OMA exception for remote meetings.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.01/Physical-presence-of-quorum-exceptions/91361, issued March 13, 2026.pdf","sha256":"dc4907acc4a23c745005702a75c476d7194f233d777632588acae3447a19b2a2","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["remote meeting","executive order","civil emergency","quorum physically present","OMA violation"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village board's fully remote meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-91361/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLJNOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 13, 2026\n\nVia electronic mail\nMs. Judy Brown-Marino\nBroadviewNews@yahoo.com\nVia electronic mail\nMs. Angela Patterson\n2544 South 16th Avenue\nBroadview, Illinois 60155\nangelae25@yahoo.com\nVia electronic mail\nMr. Michael T. Del Galdo\nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\nc/o jaworski@dlglawgroup.com\nRE: OMA Request for Review - 2025 PAC 91361\nDear Ms. Brown-Marino, Ms. Patterson, and Mr. Del Galdo:\nThis determination is issued pursuant to section 3.5(e) of the Open Meetings Act\n(OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons that follow, the Public Access Bureau\nthis office concludes that the Village of Broadview (Village) Board of Trustees (Board) violated\nOMA by improperly holding fully remote meetings on November 17, 2025, December 1, 2025,\nand December 15, 2025.\n\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-1090 • Fax: (217) 782-7046\n\nI 15 South LaSalle Street\nChicago, Illinois 60603\n(312) 814-3000 • Fax: (312) 814-3806\n\n1745 Innovation Drive, Suite C\nCarbondale, □ linois 62903\n(618) 529-6400 • Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service.\nWW\\v.IllinoisAttomeyGeneral.gov\n\n\fMs. Judy Brown-Marino\nMs. Angela Patterson\nMr. Michael T. Del Galdo\nMarch 13, 2026\nPage 2\nBACKGROUND\nOn December 26, 2025, Ms. Judy Brown-Marino and Ms. Angela Patterson\nsubmitted a Request for Review alleging that the Board violated OMA by conducting meetings\nremotely on November 17, 2025, December 1, 2025, and December 15, 2025. Noting that\nVillage President Katrina Thompson had issued executive orders declaring a civil emergency as\nthe Board's basis for the remote meetings, they argued that \"only the Governor or Director of the\nIllinois Department of Public Health have the authority to declare an emergency and waive the\nprovisions of the OMA that require meetings be held in person.\" 1\nOn January 8, 2026, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board and asked it to provide a written response to the allegations, as well as\ncopies of the notice, agenda, minutes, and any available recordings of each meeting. Having not\nreceived a response, on January 23, 2026, the Public Access Bureau e-mailed a second copy of\nthe Request for Review to the Board and again requested a response. On January 26, 2026,\ncounsel for the Board provided this office with the requested materials, including documents for\nthis office's confidential review and links to posted videos of the three meetings. On that same\ndate, the Public Access Bureau forwarded a copy of the Board's written response to Ms. Brown­\nMarino and Ms. Patterson and notified them of their opportunity to reply. On February 2, 2026,\nthey replied.2\nDETERMINATION\nIt is \"the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2024). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnellv. Hogan, 179 Ill. App. 3d 161, 171 (1989). Section 1 of OMA (5 ILCS 120/1\n(West 2024)) further provides:\nThe General Assembly further declares it to be the public\npolicy of this State that its citizens shall be given advance notice of\nand the right to attend all meetings at which any business of a\nE-mail from Judy Brown-Marino to Leah Bartelt, Public Access Counselor, Office of the\nAttorney General (December 26, 2025).\n1\n\nTo the extent that the reply could be construed as alleging the Board violated section\n2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2024 )) by improperly restricting public comment, that allegation is\noutside the scope of the Request for Review and therefore will not be addressed in this determination.\n2\n\nOffice of the Illinois Attorney General\n\n\fMs. Judy Brown-Marino\nMs. Angela Patterson\nMr. Michael T. Del Galdo\nMarch 13, 2026\nPage 3\npublic body is discussed or acted upon in any way. Exceptions to\nthe public's right to attend exist only in those limited\ncircumstances where the General Assembly has specifically\ndetermined that the public interest would be clearly endangered or\nthe personal privacy or guaranteed rights of individuals would be\nclearly in danger of unwarranted invasion. (Emphasis added.)\nSection 2.01 ofOMA3 provides, in pertinent part: \"Except as otherwise provided\nin this Act, a quorum of members of a public body must be physically present at the location of\nan open meeting.\" (Emphasis added.) Section 2.01 then enumerates a narrow set of public\nbodies covering large geographic areas that may meet the physical quorum requirement by\nlinking meetings in multiple locations through interactive video conference; the Board and other\npublic bodies of the Village are not authorized to meet in that manner.\nSection 7 ofOMA4 enumerates limited circumstances in which attendance by\nmeans other than physical presence is allowed. Section 7(e) ofOMA5 permits public bodies to\nconduct meetings remotely without a quorum physically present if certain specific conditions are\nmet. Among the conditions, section 7(e)(l) ofOMA 6 requires that:\n(1) the Governor or the Director of the Illinois Department\nof Public Health has issued a disaster declaration related to public\nhealth concerns because of a disaster as defined in Section 4 of the\nIllinois Emergency Management Agency Act, and all or part of the\njurisdiction of the public body is covered by the disaster area[.]\nUnder the plain language of section 7(e)(1), a disaster declaration issued by the Governor or the\nDirector of the Illinois Department of Public Health as described in that provision is a threshold\nrequirement for a public body to meet remotely pursuant to section 7(e) ofOMA. The last such\ndisaster declaration, which authorized remote meetings because of the COVID-19 pandemic,\nexpired on May 11, 2023. 7 Because the requirement of a disaster declaration had not been met,\nsection 7(e) ofOMA did not authorize the Board to hold remote meetings on November 17,\n2025, December 1, 2025, or December 15, 2025.\n3\n\n5 ILCS 120/2.01 (West 2024).\n\n4\n\n5 ILCS 120/7 (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\n5\n\n5 ILCS 120/7(e) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\n6\n\n5 ILCS 120/7(e)(l) (West 2024), as amended by Public Act 104-438, effective January 1, 2026.\n\n7\n\nGubematoria I Disaster Proclamation, issued April 28, 2023.\n\nOffice of the Illinois Attorney General\n\n\fMs. Judy Brown-Marino\nMs. Angela Patterson\nMr. Michael T. Del Galdo\nMarch 13, 2026\nPage 4\nThe Board argued in its response to this office that it properly held remote\nmeetings due to credible threats against the Village that raised safety concerns. No provision of\nOMA, however, permits public bodies to hold remote meetings because of credible threats. The\nBoard did not cite any provision specifically authorizing the three remote meetings, but instead\nasserted that it faced unique circumstances involving a controversial matter that required it to\neither hold remote meetings or cancel its meetings altogether and \"let public business come to a\nhalt.\"8 The Board contended that the meetings still complied with the purposes declared by the\nGeneral Assembly in section 1 of OMA. 9 Specifically, the Board argu ed that the meetings\ncomplied with the General Assembly's declaration \"'that the people have a right to be informed\nas to the conduct of their Business[,]'* * * 'that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly[,]' * * * [and] 'that [the] citizens shall be given\nadvance notice of and the right to attend all meetings at which any business of a public body is\ndiscussed or acted upon in anyway. \"!JO (Emphasis in the Board's response.) The Board argued\nthat it met these purposes because it had informed the public as to its business, conducted its\ndeliberations openly, and posted the agendas and links to observe the meetings' proceedings\nmore than 48 hours in advance. The Board stated: \"While the public was unable to physically\nattend these meetings, the public was welcome and encouraged to attend remotely, as attendance\ndoes not always require physical presence.\"11\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n(2006). \"The most reliable indicator of legislative intent is the statutory langu age, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ,r 56. Where the langu age of a statute is clear and unambiguous, a reviewing body\n\"may not depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial &\nProfessional Regulation, 2014 IL 116023, ,r 16. Policy statements in the preamble of a statute\n\"'are available for clarification of ambiguous substantive portions of [an] act' [citation] but there\n8\nLetterfrom Michael T. Del Galdo,Attorney for the Village of Broadview, Del Galdo Law Group,\nLLC, to Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney Genera1 of the\nState oflllinois (January 26, 2026), at [3].\n\n9\n\n5 ILCS 120/1 (West 2024).\n\nLetter from Michael T. Del Galdo, Attorney for the Village of Broadview, Del Galdo Law\nGroup, LLC, to Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General of\nthe State of Illinois (January 26, 2026), at [2], quoting 5 ILCS 120/1 (West 2024).\n10\n\nLetter from Michael T. Del Galdo, Attorney for the Village of Broadview, Del Galdo Law\nGroup, LLC, to Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General of\nthe State oflllinois (January 26, 2026), at [3].\n11\n\nOffice of the Illinois Attorney General\n\n\fMs. Judy Brown-Marino\nMs. Angela Patterson\nMr. Michael T. Del Galdo\nMarch 13, 2026\nPage 5\nis no need to resort to them where other, substantive provisions are unambiguous.\" In re\nTyianna J., 2017 IL App (1st) 162306, ,-i 62.\nThe policy declarations cited by the Board have no relevance to this matter\nbecause section 2.01 of OMA unambiguously provides that a quorum of members must be\nphysically present at meetings of municipal public bodies, while the plain langu age of section\n7 (e) permits remote meetings only in limited circumstances when disaster declarations have been\nissued by the Governor or the Director of the Illinois Department of Public Health . Neither\nprovision authorized the Board's remote meetings on November 17, 2025, December 1, 2025,\nand December 15, 2025, and no provision of OMA permits the head of a municipality to issue an\nexecutive order that authorizes their public body to meet in a remote format because of safety\nconcerns. Accordingly, the Board violated OMA by holding the meetings without a quorum of\nits members physically present.\nIn accordance with this determination, the Public Access Bureau requests that the\nBoard conduct its future meetings in-person and allow members of the public to physically\nattend the meetings, unless the conditions of section 7 of OMA have been met.\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n(773) 590-7878 or benjamin.silver@ilag.gov. This letter serves to close this file.\n\nBENJAMIN J. SILVER\nSupervising Attorney\nPublic Access Bureau\n91361 o 201 improper 7e improper mun\n\nOffice of the Illinois Attorney General\n\n\f"}
{"id":1508,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":2026,"date_issued":"2026-06-10","case_number":null,"request_numbers":["93241"],"title":"Town of Cicero Board of Trustees did not violate OMA by briefly interrupting public comment speaker","filename":"93241, issued June 10, 2026.pdf","rel_path":null,"word_count":1804,"summary":"A requester alleged the Town of Cicero Board of Trustees violated OMA by interrupting his public comment and having him removed before his time expired. The PAC determined the Board did not violate section 2.06(g) of OMA.","plain_summary":"Under OMA section 2.06(g), a public body may not restrict public comment based on content or viewpoint, but brief interruptions that do not meaningfully interfere with a speaker's ability to complete their comment are permissible. Here, the Mayor's two brief comments caused only a momentary pause, after which the speaker continued without interruption until being removed. Because the interruptions did not prevent the speaker from addressing the Board, no violation occurred.","holding":"The Town of Cicero Board of Trustees did not violate section 2.06(g) of OMA in connection with its March 24, 2026, meeting.","legal_question":"Whether the Board's brief interruptions and removal of a speaker during public comment violated OMA section 2.06(g).","disposition":"no_violation","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":null,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Town of Cicero Board of Trustees","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"Alleged improper restriction on public comment during a Board meeting.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/OMA/2.06/2.06_g/93241, issued June 10, 2026.pdf","sha256":"743aa25cc9f78b5990ec718a0c5052ff64326f54b40faebe146b8e11d64cfbaf","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: letterhead appears 1 time(s), clean","faq_tags":["public comment","interruption","removal","OMA section 2.06(g)"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Restriction on public comment during a board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-93241/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE\n\nKWAME\n\nRAOUL\n\nATTORNEY\n\nGENERAL\n\nOF ILLINOIS\n\nJune 10, 2026\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Luanne M. Galovich, Esq.\nSenior Counsel\n\nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\ngalovich@dlglawgroup. com\nRE:\n\nDear\n\nOMA Request for Review — 2026 PAC 93241\n\nand Ms. Galovich:\n\nThis determination is issued pursuant to section 3. 5( e) of the Open Meetings Act\nOMA) ( 5 ILCS 120/ 3. 5( e) ( West 2024)).\n\nFor the reasons explained below, the Public Access\n\nBureau concludes that the Town of Cicero Board of Trustees ( Board) did not violate section\n2. 06( g) of OMA ( 5 ILCS 120/ 2. 06( g) ( West 2024)) in connection with its March 24, 2026,\nmeeting.\nBACKGROUND\n\nOn March 25, 2026, this office received a Request for Review from\n\nalleging that the Board violated section 2. 06( g) of OMA on the previous day by ( 1) briefly\n\ninterrupting his public comment and ( 2) permitting him to be physically removed him from the\npodium\n\nand ejected from the meeting — without\n\nMayor — before\n\na formal vote by the Board or directive by the\n\nthe expiration of his three minutes for public comment based on the content of\n\nhis comments rather than any actual disruption of the meeting. The submission included an\n\n500 South 2nd Street\nSpringfield,\n\nIllinois 62701\n\n217) 782- 1090 • Fax: ( 217) 782- 7046\n\nIndividuals\n\n115 South LaSalle Street\n\n1745 Innovation\n\nChicago, Illinois 60603\n\nCarbondale,\n\n312) 814- 3000 • Fax: ( 312) 814- 3806\n\nwith hearing or speech disabilities\nwww.\n\n618) 529- 6400 • Fax: ( 618) 529- 6416\n\ncan reach us by using the 7- 1- 1 relay service.\n\nIllinoisAttorneyGeneral.\n\ngov\n\nDrive, Suite C\n\nIllinois 62903\n\n\fMs. Luanne M. Galovich, Esq.\nJune 10, 2026\nPage 2\n\ninterne link to a video of the Board' s March 24, 2026, meeting. On April 9, 2026, this office\nsent a copy of the Request for Review to the Board, requesting a written response to the\nallegations, a copy of the Board' s established and recorded rules regarding public comment, and\n\ncopies of the March 24, 2026, meeting agenda, minutes, and open session recording. On May\n12, 2026, the Board's attorney provided this office with a written answer and the meeting\nminutes and agenda, a copy of the ordinance that regulates the public comment at Board\nmeetings, and a picture of\nraising his middle finger to the Board during his public\ncomment on March 24, 2026.\n\nThe Board also stated that it does not record open sessions of its\n\nmeetings, so it did not provide an audio recording of the meeting. On May 12, 2026, this office\nforwarded a copy of that answer to\n\nOn May 15, 2026, he responded and argued that\n\nhe was not provided a full three -minutes of public comment, that his presence and speech did not\ncreate an actual disruption of the Board meeting, and that his displaying of his middle finger to\nthe Board was simply him counting down the minutes left on his time for public comment.\nDETERMINATION\n\nSection 2. 06( g) of OMA provides\n\nthat \"[ a] ny person shall be permitted an\n\nopportunity to address public officials under the rules established and recorded by the public\nbody.\" A public body violates section 2. 06( g) of OMA when it: ( 1) prohibits a member of the\npublic from addressing its members in a manner inconsistent with its established and recorded\nrules, or (2) prohibits a member of the public from providing public comment pursuant to its\nestablished and recorded rules, but those rules unreasonably restrict that person' s right to address\n\npublic officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued September 4, 2014, at 5- 7.\nPursuant to its established and recorded rules \" a public body may legitimately prescribe\nreasonable\n\ntime limits for public\n\ncomment.\"\n\nI11. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued\n\nSeptember 30, 2014, at 5- 6.\n\nThe Board' s response to this office alleges that\n\nminutes of public comment and argues that despite\n\nwas given his full three\n\nprofane gesture to the Board, the\n\nBoard did not cut off his public comment while he criticized the Town and its elected officials.\n\nThe Board also provided its established and recorded rule regulating public comment at its\nmeetings, which reads in relevant part:\nSec. 2- 66. Limited public forum. The following procedures for\n\nestablishing and conducting a limited public forum before the\nboard of trustees are adopted: * * *\n\n2) There shall be a presiding officer at each meeting who shall\npreserve order and decorum and shall preside over the public\n\nforum. The presiding officer shall have the power to require the\n\nchambers to be cleared for any disturbance or disorderly conduct.[ 11\nCicero,\n\nI11.,\n\nCode of Ordinances §\n\n2- 66 ( amended April 12, 1994).\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMs. Luanne M. Galovich, Esq.\nJune 10, 2026\nPage 3\n\nThis office has reviewed the materials provided by\nand the Board,\nincluding the video recording of the March 24, 2026, meeting, provided by\nThat\nrecording shows\n\nbegan his public comment at the 15: 14 mark, restarted his comments\n\nand his timer at the 15: 25 mark.\n\nAt the 16: 04 mark and the 17: 43 mark, the Mayor made\n\ncomments that each lasted for no more than two seconds, possibly causing\nto briefly\npause before he continued speaking.\nraised two fingers at the 16: 45 mark, stating that\nhe had two minutes remaining. At the 17: 45 mark,\nlowered his index finger but\n\ncontinued to extend his middle finger, indicating that he had one minute left.2 He kept his\nmiddle finger extended until he was ushered away from the podium at the 18: 12 mark. Despite\nthe Board's assertion that\nspoke for three minutes, the only recording of the meeting\navailable to this office shows that his public comment time was ended two seconds short of the\nfull three minutes.\n\nNevertheless, as the Board noted in its response, a public body is not required to\npermit disruptive and obscene behavior or gestures to continue without limits This office has\npreviously determined that section 2. 06( g) of OMA requires public bodies to allow criticism of\n\npublic officials that is not profane or disruptive, 3 but permits restrictions on public comments\nthat breach decorum even without the use of profanity. Ill. Att'y Gen. PAC Req. Rev. Ltr.\n46149, issued April 10, 2018, at 5 ( an individual breached decorum during public comment by\nraising their voice and pointing and gesturing vigorously with their hands, though they did not\nprofanity or make threats). Additionally, \"[ c] ourts have found restrictions on speech in\nlimited public forums[,]\" such as meetings of public bodies, \" reasonable when they advance\n\nuse\n\ngoals such as civility, decorum, relevance, and fairness to other public speakers participating in\nthe forum.\"\n\nSEIULocal 73 v. Board of Trustees of the Univ. of Illinois, 2023 U. S. Dist. LEXIS\n\n88889, at * 23, ( C. D. Ill. May 22, 2023); see also Biggers v. Massingill,\n265685, at * 22 ( N. D. Tex.\nreasonable\n\nsubject\n\nmatter\n\n2026 U. S. Dist. LEXIS\n\nMay 14, 2026) (\"[ P] rohibiting demeaning or insulting comments is a\nrestriction\n\nin light of the purpose served by the\" county board).\n\nEven\n\nwithout established rules, this office has previously determined that the head of a public body has\n\ninherent authority to take measures to preserve decorum and ensure that a meeting is conducted\nin an orderly and efficient manner. See Ill. Att' y Gen. PAC Req. Rev. Ltr. 53888, issued April\n30, 2020, at 4 (\" Even without public comment rules, the head of a public body has the authority\n\nand responsibility to run a civil and businesslike meeting, including the inherent authority to put\n\na stop to conduct that interferes with the orderly conduct of a meeting.\").\nDespite\n\nassertion that he raised his middle finger simply to count\n\n2Town of Cicero Board Meeting March 24, 2026, YouTube (March 24, 2026),\nhttps://\n\nwww.\n\nyoutube.\n\ncom/\n\nwatch? v=_ qcbZRLWJo& t=914s.\n\n3\" When criticism involves the conduct of present or former public officials in the performance of\ntheir public duties,\n2016,\n\nsignificant latitude\n\nmust be allowed.\"\n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 39069, issued April 5,\n\nat 3.\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\fMs. Luanne M. Galovich, Esq.\nJune 10, 2026\nPage 4\n\ndown the remaining minutes of his public comment, that gesture is undoubtedly profane and a\nbreach of decorum. See Perkins v. City of Gahanna, 2000 U.S. Dist. LEXIS 23209, at 23209, at\n11 ( S. D. Ohio, Sept. 21, 2000) ( characterizing\n\nan individual raising their middle finger at a\n\nand insulting gesture\").\n\nEven if\ngesture did not\nprovoke an argument or objection by the Board, the statutory right to address public officials in\nsection 2. 06( g) of OMA cannot be reasonably construed to include engaging in such profane and\ninsulting conduct. Although the Board's public comment rules provide that the presiding officer\nshall maintain order and decorum, neither the Board's rules nor section 2. 06( g) of OMA required\nthe Mayor or the Board to issue a formal directive or hold a vote to approve of police ejecting\nfrom the meeting. The Board effectively authorized the termination of\npublic comment by not objecting to his removal. Accordingly, the Board did not unreasonably\nrestrict\nfrom addressing public officials after he raised his middle finger at the Board.\npolice\n\nofficer\n\nas \" an offensive\n\nWith respect to\nallegation that the Mayor unreasonably interfered with\nhis public comment by briefly interrupting him, this office has consistently determined that a\ntemporary interruption that does not preclude a speaker from completing his or her public\ncomment does not constitute an improper restriction on public comment. See, for example, Ill.\nAtt'y Gen. PAC Rev. Ltr. 37496, issued December 11, 2015, at 3 ( public body did not violate\nsection 2. 06( g)\nby briefly interrupting a speaker to ask a question about their statement). The\nrecording\nsubmitted to this office showed that the Mayor made two brief comments\nthat may have caused\nto pause for a second or two, before he continued without\ninterruption until being removed from the meeting. Because those interruptions did not\n\nmeaningfully interfere with\n\nability to address public officials, the Board did not\n\nviolate section 2. 06( g) of OMA on that basis, either.\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nMichael. Malik@ilag. gov. This file is closed.\nVery truly yours,\n\nMICHAEL G. •MALIK\n\nAssistant Attorney General\nPublic Access Bureau\n\n93241 o 206g pub comment proper mun\n\nOffice of the Illinois\n\nAttorney\n\nGeneral\n\n\f"}