Recent Court and Public Access Counselor Decisions Uphold Remote Participation of Board Members Without Physical Quorum

Recent Court and Public Access Counselor Decisions Uphold Remote Participation of Board Members Without Physical Quorum

By April 29, 2020 News No Comments

Court Decision

In Evans et al. v. City of Joliet, 20-CH-526, the circuit court of Will County denied an Emergency Motion for a Temporary Restraining Order (“TRO”), and allowed the City of Joliet (“City”) to hold a remote special city council meeting on April 13, 2020, regarding the adoption of a pre-annexation agreement related to a proposed development.  As we have previously reported, the Governor’s Executive Order 2020-07 provides that Open Meetings Act (“OMA”) provisions requiring or relating to in-person attendance by members of a public body are suspended for the duration of the Disaster Proclamation.  The Executive Order and the ensuing Attorney-General Guidance encourage public bodies to (1) postpone consideration of public business where possible, and (2) when meetings are necessary, provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting.

In support of their motion for a TRO, the plaintiffs argued that: (1) the special meeting was not “necessary,” and therefore did not comply with Executive Order 2020-07, and (2) the City failed to provide the public with a sufficiently meaningful way to participate in the meeting because public access was provided only by phone (to a limited number of people) and via videoconference or cable television.  Prior to addressing the merits, the court took judicial notice that the proposed development at issue was a warehouse, distribution, and manufacturing development that was “extremely controversial” and that prior public meetings concerning the development saw hundreds, if not thousands, of people in attendance.

The court then turned to plaintiffs’ first contention regarding the necessity of the meeting.  The court noted that the City’s determination of necessity was entitled to reasonable deference.  Further, plaintiffs’ counsel acknowledged that an in-person meeting on the issue may not be possible for many months due to the COVID-19 crisis. Ultimately, the court rejected plaintiffs’ assertion that the City “has not shown” necessity, noting that it was the plaintiffs’ burden to show the meeting was not necessary, which they did not do.

Next, the court rejected the plaintiffs’ assertion that the City’s special meeting violated OMA because it did not provide the public with a meaningful way to participate in the meeting. The court noted that, the City announced the special meeting five (5) days in advance; it also planned to permit the public to comment by telephone or email; it planned to air the meeting live on public access television, the City’s website, and through social media; and it planned to record the meeting and make the recording available on the City’s website afterwards. While the court acknowledged that a small segment of the population, those without cable television, telephone, or internet, may not have an opportunity to participate, the law requires only a reasonable opportunity to participate—a requirement the City complied with.

Finally, while the court expressed its apparent displeasure with the City’s decision to conduct the special meeting, it nonetheless found that plaintiffs failed to establish either an OMA violation or the elements necessary for injunctive relief.

While this decision was preliminary and specific to the facts at hand, it is an acknowledgement from a court that (1) public bodies are entitled to deference regarding the necessity of holding board meetings, and (2) remote public participation can be acceptable during the pendency of the Governor’s Disaster Declaration, provided that the public is provided with meaningful ways to participate.  For more information about OMA requirements, please see HLERK’s COVID-19 Update on Corporate/Board Governance Issues, which can be found here.

PAC Opinions

In addition to the court decision discussed above, the Public Access Counselor (“PAC”) also recently issued two opinions finding in favor of the public body in regard to remote meetings.

On March 27, 2010, the PAC dismissed a complaint alleging that the Chicago Executive Airport Board of Directors violated sections 2.01 and 7(a) of OMA by holding a scheduled meeting without a quorum of members physically present.  Specifically, the requester noted that only the chairman of the Board was physically present while the six (6) other members participated via teleconference.  In support of its dismissal of the complaint, the PAC pointed to Governor Pritzker’s Executive Order 2020-07 which specifically suspends the requirement that a quorum be physically present at board meetings. See 2020 PAC 62246.

On April 6, 2020, the PAC dismissed another complaint alleging that the McHenry County Board of Health violated section 2.06(g) of OMA by not providing the public with an opportunity to comment during its March 23, 2020, meeting.  The PAC noted that members of the public were permitted to email their public comments to the Board prior to the virtual meeting, a procedure the PAC found fulfilled the statutory public comment requirement of section 2.06(g) under the exigent circumstances that existed (e.g., the COVID-19 Pandemic).  See 2020 PAC 62329

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