In a binding opinion, the Illinois Attorney General’s Public Access Counselor found that the Evanston City Council violated the Open Meetings Act (“OMA”) by approving an exclusive representation agreement with a real estate broker in a closed session. At the closed session, the city manager asked the city council to authorize the agreement, and a majority of members indicated their support when polled. The mayor also stated, in closed session, that staff had been directed to execute the agreement. The next day, the city manager signed the agreement.
A community member argued that the council took final action in a closed session to approve the agreement, in violation of OMA Section 2(e), which mandates that public bodies cannot take final action at a closed meeting. The city argued that the city manager was authorized by existing city code to sign the agreement, so final approval of the city council was unnecessary. Evidence from the closed session recording demonstrated, however, that the city manager had explicitly sought and gained the city council’s consent to proceed with the agreement during the closed session. As a result, the PAC found that the city violated OMA Section 2(e) by taking final action to approve the agreement in a closed session.
This opinion stems from the OMA requirement that the conduct of the actions by public bodies are conducted openly. While employees may be authorized to take certain actions on behalf of a public body, such as sign agreements, if the Board is polled in closed session about such actions, that may constitute a “final action” for purposes of the OMA. As the PAC indicated, a public body is not prohibited from polling members in closed session, as long as an official vote is taken in a subsequent open session. Be cautious about polling members in closed session for items that will not otherwise be subject to action in open session.
Please contact a member of our Board Governance/Corporate practice group with questions.
Source: Public Access Opinion 24-003
