by John H. Kelly (Spring 2020 Newsletter)
With Governor Pritzker’s declaration of a state of emergency due to COVID-19 and public health requirements of social distancing, the ability of public bodies to conduct their business with in-person, open meetings has been severely curtailed. At the same time, an executive order by the Governor made it slightly easier to conduct meetings electronically, while creating new issues for public bodies.
Section 2.01 of the Open Meetings Act (5 ILCS 120/2.01) requires that a quorum of the members of a public body must be present at the location of the public meeting in order for that meeting to be valid. The Act’s Section 7 (5 ILCS 120/7) allows for members to attend by other means if a quorum is physically present. The statute notes that the term “other means” includes video or audio attendance. Section 7 permits electronic attendance only if the member is suffering from personal illness or disability or is absent due to employment purposes or unavailable due to a family or other emergency. The electronic attendance must be approved by a majority of the public body, after previously approving a resolution or policy allowing it, and must allow for the public and anyone else attending the meeting to hear the absent member’s vote or discussion.
Governor Pritzker has issued many executive orders in response to the COVID-19 emergency. Among other things, he has limited all public or private gatherings to no more than 10 people and ordered residents to stay at home except to perform necessary activities. As a result, local governments were confronted with determining how public business would continue.
To help facilitate holding meetings, Section 6 of Executive Order 2020-07 suspended certain provisions of the Open Meetings Act related to electronic means. The order suspended the requirement that a quorum of the public body must be physically present, allowing any number of board members to participate by video or audio. The Order also suspends the normal prerequisites for participating “by other means.” The Governor encouraged units of government, to the extent possible, to postpone the consideration of public business, or at least only discuss necessary items.
Subsequently, the Illinois Attorney General’s Office issued “Guidance to Public Bodies on the Open Meetings Act during the COVID-19 Pandemic.” This document can be viewed at foia.ilattorneygeneral.net. The recommendations and reminders on conducting electronic meetings include:
- Allow all participants to clearly hear each other at all times, along with the public and press, and allow public comment at least by submission.
- Post agendas as required by Section 2.02 of the Open Meetings Act. The agenda should include an explanation of the process by which people can attend the meeting by both telephone and internet.
- Minutes of these meetings are still required. When possible, meetings should be recorded and posted on the public body’s website.
- Only hold electronic meetings where immediate action is needed.
- If votes are taken, the votes must be audible to anyone listening and recorded as part of the minutes of the meeting.
Although neither the Governor’s Order nor the Attorney General’s Guidance requires live public comment, it is strongly recommended that boards give the public that opportunity. If a teleconference or web-based meeting is being conducted, members of the public can be muted except during the period of public comment. At the very least, public bodies should allow individuals to submit comment by email or written form, which will then be read at the meeting.
If your Board finds it necessary to conduct a meeting during this emergency, you should follow these guidelines. Also, in an abundance of caution, we suggest that your Board ratify any actions taken in these electronic meetings at the first in-person meeting you can hold after the state of emergency is lifted. Should you have any questions about public meetings, or any other topic associated with COVID-19, please contact an attorney from Ottosen DiNolfo.