In a challenge to a school board’s decision to hold a remote meeting due to the COVID-19 pandemic, the Illinois Attorney General’s Public Access Counselor (PAC) issued a binding opinion finding that the meeting was conducted in accordance with the requirements of the Open Meetings Act (OMA). In reaching its opinion, the PAC found that the board president appropriately determined that holding an in-person meeting was not practical or prudent based on the conditions of the COVID-19 pandemic. In making that determination, the board president considered safety concerns that arose at the previous board meeting when dozens of members of the public protested the statewide mask requirement.
In September 2021, a school board held a meeting remotely via Zoom with no in-person attendance allowed. A member of the public submitted a Request for Review with the PAC, alleging that the board improperly held the meeting remotely. She argued that the board used the pandemic as a pretext to bar in-person attendance and made inconsistent determinations for when a meeting should be held remotely or in-person. In response, the board indicated that the disruptions from the previous month’s meeting, where members of the public refused to comply with the mask requirement, drove the board president’s decision to hold a remote meeting. The September meeting agenda communicated the finding that an in-person meeting was not practical or prudent based on the recommendation of local officials regarding COVID-19. On review, the board president submitted an affidavit stating that he and the Superintendent made the determination to hold the September board meeting remotely because an in-person meeting was not practical or prudent due to the health risks associated with COVID-19, based on “concerns over public health and safety following the August 2021 board meeting and because of the growing number of cases in our region.”
The PAC concluded that the board complied with the requirements to hold a meeting remotely under Section 7(e) of OMA. Specifically, the statewide Governor’s disaster proclamation was in effect at the time of the meeting (Section 7(e)(1)), the board president found that holding a meeting was not practical or prudent because of COVID-19, and placed that finding on the agenda (Section 7(e)(2)), and, despite the requester’s complaints about audio issues on the livestream and access to the internet, the board complied with OMA by allowing public access by livestreaming the meeting on Zoom (Section 7(e)(4)).
This opinion gives insight into the amount of discretion public bodies have in holding remote meetings. Despite the requester’s allegation that concerns unrelated to the pandemic were the actual reason for meeting over Zoom, the PAC found that the board president’s determination, which took into account attendee compliance with mask requirements, was sufficient. As we previously reported here, this opinion is another example of the PAC appearing to give deference to the head of a public body’s determination that a full in-person meeting was not practical or prudent, despite questions raised about the need for such restriction. Nevertheless, public bodies should be sure to document when it finds that holding a meeting is not practical or prudent because of COVID-19, and clearly communicate that finding to the public.
If you have any questions regarding OMA or this PAC decision, please contact Kerry Pipal or any of our attorneys in the Board Governance/Corporate practice group.
Source: Public Access Op. 2021-011