Public Action is Required Prior to an Absent Board Member Participating Via Audio Or Video

On June 6, 2019, the Public Access Bureau of the Office of the Attorney General’s Office (“PAC”) determined that the Board of Education of Rock Island-Milan School District No. 41 (the “Board”) violated the Open Meetings Act (“OMA”) when a Board member participated in closed session discussions by phone, without a majority of the Board first taking public action to permit such participation.

During the April 9, 2019 Board of Education meeting, the Board entered closed session. After the Board moved to adjourn the closed session, Ms. Nicole Lauer, a Correspondent of Dispatch-Argus-QCOnline.com, heard that one of the Board members who was not present at the meeting, Mr. Kevin Nolan, wanted to participate in the closed session telephonically. Ms. Lauer confirmed with the Superintendent that Mr. Nolan participated in the closed session meeting. Following the meeting, Ms. Lauer filed a Request for Review with the PAC alleging that the Board violated OMA when Mr. Nolan participated in closed session without publicly disclosing his participation prior to the closed session.

The PAC agreed with Ms. Lauer. Pursuant to Sections 7(a) and 7(c) of OMA, a majority of the public entity may choose to allow an absent member to participate by audio or video conference. 5 ILCS 120/7(a), (c). And if the public body choose to allow an absent member to participate, the public body must take public action prior to such participation. In this case, a majority of the Board did not take public action approving Mr. Nolan’s participation in closed session. However, because Mr. Nolan did not participate in the ensuing vote, the PAC did not require any remedial action.

This case reinforces the requirement that a public vote needs to be taken prior to an absent board member participating in a board meeting.

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