by Thomas J. Gilbert and Hayley Loufek
It goes without saying that Illinois local governments must comply with the Open Meetings Act (“OMA”). If they don’t, they will be subject to the wrath of the courts and the Attorney General’s Public Access Counselor. However, OMA violations have a shelf life. If the Act is violated (or there is probable cause to believe it has been violated), it allows anyone to file a civil action:[P]rior to or within 60 days of the meeting alleged to be in violation of this Act or, if facts concerning the meeting are not discovered within the 60-day period, within 60 days of the discovery of a violation by the State’s Attorney or, if the person timely files a request for review under Section 3.5, within 60 days of the decision by the Attorney General to resolve a request for review by a means other than the issuance of a binding opinion under subsection (e) of Section 3.5.
5 ILCS 120/3(a). Compliance with these timetables are mandatory—lawsuit brought outside of Section 3(a)’s window must be dismissed.
An Illinois Appellate Court recently interpreted the Open Meetings Act’s 60-day statute of limitations in a way that eliminated two claims made against the Chicago City Council. In Better Government Association v. Chicago City Council, the Better Government Association (“BGA”) filed a lawsuit on June 12, 2020, alleging that the Chicago City Council violated the OMA when it hosted three teleconferences and did not provide public notice or public access to the meetings. 2023 IL App (1st) 210765-U. The teleconferences at issue occurred on March 30, 2020, and April 6, 2020—74 and 67 days (respectively) before the lawsuit was filed.
The City filed a motion to dismiss arguing that the claimed March 30 and April 6 violations were time-barred. The court agreed and held that the June 12 filing date of the lawsuit was outside the statutory 60-day period. Further, both meetings were disclosed to the public on April 21, 2020—well within the 60 days—and BGA pled public knowledge of those meetings during the 60 days, meaning it could have filed its complaint in a timely manner. The appellate court therefore upheld dismissal of BGA’s claims regarding the March 30 and April 6 teleconferences.
Attempting to avoid dismissal, BGA alternatively argued that the OMA contains its own statutory “discovery rule.” BGA contended “if facts concerning the meeting are not discovered within the 60-day period,” then a civil action may be brought “within 60 days of the discovery of a violation by the State’s Attorney.” 5 ILCS 120/3(a). However, the court held this “discovery rule” could not apply because BGA acknowledged in its complaint that the teleconferences were made public within 60 days. BGA also argued that, Illinois’ fraudulent concealment statute should apply to allow its claims to proceed, but the court didn’t buy that either. The fraudulent concealment statute says that a person may commence an action anytime within 5 years of discovery of a cause of action if the person liable fraudulently concealed the cause of action from their knowledge. 735 ILCS 5/13-215. Yet, no Illinois court has ever applied this statute to a claim under the OMA, and still the teleconferences were public knowledge within 60 days.
For those reasons, the appellate court affirmed the dismissal of the OMA claims against the City.
The BGA case affirms that Open Meetings Act violations do not stay actionable forever. In fact, public bodies can successfully raise a statute of limitations defense to lawsuits alleging violations of the OMA. However, local governments should keep in mind that some exceptions to the statute of limitations exist, such as if facts concerning the violation are not discovered until after the 60-day window. Nonetheless, if presented with an OMA lawsuit, all localities should carefully cross reference the lawsuit’s filing date with when the at-issue meeting occurred.