In a binding opinion, the Illinois Attorney General’s Public Access Counselor found that the Board of Trustees of the Village of Roanoke violated the OMA when it muted the livestream of an open meeting during a brief “sidebar” because the OMA requires that the public be able to contemporaneously hear all discussion during meetings at which in-person attendance of the public is not allowed.

As we previously reported, Section 7(e) of the OMA was amended in June 2020 to permit a public body to hold remote meetings without the physical presence of a quorum of its members during a public health emergency, such as the COVID-19 pandemic, if certain conditions are satisfied. Pursuant to the amended OMA, the Board prohibited the physical attendance of the public at the meeting and instead offered the public access to the meeting via the Zoom videoconferencing platform. During open session, the Mayor asked the Village Clerk to mute all microphones. The microphones were muted for just 60 seconds, during which the Mayor and Clerk discussed whether it was necessary to enter into closed session to discuss a personnel issue. The Village argued that sidebar conversations are common and are not prohibited by the OMA. The PAC, however, pointed to the recent OMA amendments concerning remote board meetings, which require that, where physical attendance of the public at the regular meeting location is not feasible due to a disaster, the public body must make “alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes.” Because the public was not able to contemporaneously hear the sidebar discussion—even for 60 seconds—the Board violated the OMA.

However, the PAC found that the Board did not violate the OMA by prohibiting the public’s physical attendance at the meeting because all requirements of Section 7(e) of the OMA were met. Notably, the PAC appeared to give deference to the Mayor’s determination that a full in-person meeting was not practical or prudent, despite questions raised about the continued need for such restriction.

This opinion is a reminder to allow as much public access during meetings that are conducted remotely as you would at a full in-person meeting. That means allowing the public to hear all discussion at the meeting, with the exception of meetings that have been appropriately closed.  Otherwise, the opinion confirms that public bodies may exclude the public from physically attending board meetings, as long as all requirements of Section 7(e) of the OMA are met.

If you have questions about this PAC decision or the OMA, contact Heather Brickman or Steve Richart in our Corporate/Board Governance practice group.

Source: Public Access Counselor Opinion 20-007