Category: Scott Brunton

IL AG PAC Opinion 20-007 Article Summary SAB

Don’t Hit Pause! – Illinois Attorney General Issues PAC Formal Opinion 20-007 Clarifies Requirements for Livestreamed Remote Public Meetings under the Open Meetings Act

By: Scott Brunton

scott.brunton@mhtlaw.com

During the global COVID-19 pandemic, American society has proven resilient in many ways. We have substantially altered the ways in which we carry out business transactions and go about our daily lives. Various government health agencies have helped to guide us towards best practices to ensure that we reduce the spread of the novel corona virus. As leaders across the State sought to balance public health concerns on one hand, there has been a continued need to preserve certain rights held by citizens, broadly, on the other. Namely, the Open Meetings Act (OMA) (5 ILCS 120/1, et seq.) requires public bodies to hold meetings and deliberations openly. With a recent amendment to OMA, public meetings can now occur by way of a virtual format during the pandemic.

But, as recently found by the Illinois Attorney General Public Access Bureau (AG-PAC), conditions under which virtual meetings can occur stand in contrast to the traditional OMA requirements that require in-person public meetings. See Public Access Opinion 20-007 (November 24, 2020). Upon issuing this formal opinion, the AG-PAC found that the Village of Roanoke Board of Trustees violated OMA by muting a discussion to hold a brief sidebar – because OMA requires that virtual meetings allow members of the public to contemporaneously hear all discussion during the open portion of the meeting.

The recently enacted Section 7(e) of OMA allows public bodies to hold deliberations via audio or video conferencing so long as ten requirements are fulfilled: (1) The Governor issues a Disaster Declaration; (2) the head of a Public Body determines that an in person meeting is not practical or prudent because of a disaster; (3) all members of a Public Body can hear each other and participate in discussion; (4) the Public Body makes alternative arrangements and provides notice to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes; (5) one member of a Public Body is physically present at the meeting location; (6) all votes are conducted by roll call; (7) notice of meeting provided to the public with at least 48 hours’ notice; (8) each member of the Public Body participating remotely are considered present; (9) a verbatim record of the meeting must be provided to the public; (10) the Public Body bears all costs associated with the meeting (5 ILCS 120/7(e)).

Initially, the AG-PAC found that the Village Board meeting on September 8, 2020, was called in compliance with the ongoing Executive Orders and Disaster Proclamation issued by Governor Pritzker in relation to the enduring COVID-19 pandemic. Furthermore, the Village President’s declaration that in-person meetings were not practical and prudent during the COVID-19 pandemic was sufficient to invoke OMA’s virtual meeting format. The AG-PAC also found that the Village had complied with each of the other the provisions under Section 7(e) of the Open Meetings Act that allow the Village to hold a virtual meeting without in-person attendance of the public.

During this September 8th meeting, the Mayor and Village Clerk held a short sidebar to discuss a matter of procedure concerning a sensitive personnel matter. As such, the Mayor requested that the Zoom livestream conference audio be muted during this sidebar. The crux of the sidebar was to determine whether the matter should be discussed in closed session. The Illinois Attorney General found this action violated the virtual meeting provisions of OMA. Specifically, Section 7(e)(4) requires the public to have access to the meeting in a manner that allows the public to contemporaneously hear all discussion during the meeting.

The Attorney General reached this conclusion by engaging in a straightforward literal reading of the OMA statute. The Village Board contended that Section 7(e) was not violated because it is not uncommon for sidebars to occur during an in-person public meeting to clarify matters of procedure. However, the AG held that Section 7(e)(4) is clear and unambiguous if one adheres to the plain language of the statute. Interestingly, in the opinion, the AG-PAC expressly noted that OMA does not prohibit a member of a Village Board and another Village official from having a brief, inaudible exchange – a “sidebar” – during a regular in-person meeting. However, Section 7(e) does not contain a specific exception for a sidebar, and thus Section 7(e)(4) requires the public to hear absolutely everything during a remote open session meeting.

In light of the recent AG-PAC decision, there are some notable takeaways. One, the Illinois Attorney General, perhaps unsurprisingly, will adhere to a close reading of a statute’s plain language. Second, a simple declaration of the Village President was sufficient to involve the virtual meeting provision of OMA. Third, public bodies need to be mindful of the rules set forth in Section 7(e)(4) of the OMA. Specifically, any virtual meeting needs to be made available to the public so that citizens can hear everything. In other words, the meeting cannot intentionally be muted or paused. Last, a public body should read the provisions in Section 7(e) of the OMA carefully. Any doubts or uncertainty are grounds for consultation with the public body’s attorney.

The Illinois Small Wireless Facilities Deployment Act

Implementing the Small Wireless Facilities Deployment Act

By Scott Brunton

email: scott.brunton@mhtlaw.com

In April 2018, Public Act 100‑585 – the Small Wireless Facilities Deployment Act (the “Act”) – was signed into law.  This Act became effective on June 1, 2018, and impacts all municipalities in the State of Illinois with the exception of Chicago.  Small wireless facilities – being antennas and other similar devices – are telecommunications hardware that can be attached to existing utility poles, light poles, or other structures  often found in the public right-of-way.  These small wireless facilities will allow wireless carriers to enhance cellular transmissions in hard to reach areas, while also allowing implementation of the next generation 5G wireless technology.  Illinois municipalities will need to act promptly to ensure that these small wireless facilities are not being installed and operated in municipal rights-of-way without permissible oversight by the municipality as provided under the Act – including the collection of permit fees.

In passing the Act, the Illinois Legislature noted that small wireless facilities are critical for delivering wireless access to advanced technology, broadband, and 9-1-1 services to homes, businesses, and schools in Illinois.  The Illinois Legislature further noted that this access to wireless technology is integral to the economic vitality of the State and to the lives of all Illinois citizens.  But, in making these proclamations and passing this Act, the State has significantly limited a municipality’s ability to regulate the placement and installation of small wireless facilities on any right-of-way under the control of the municipality.  The Act also requires that if a municipality grants access to other telecommunication carriers to municipal property outside of the public right-of-way, the municipality must provide the same access these small wireless facilities.

Specifically, the Act addresses the installation, mounting, maintenance, modification, operation, or replacement of small wireless facilities on any support structure or utility poles in a municipality’s right-of-way (this is defined as “collocation of small wireless facilities”).  Small wireless facilities are no more than six cubic feet in volume and “collocated” atop an existing utility or light pole or a new similarly styled support structure.  Basically, a municipality cannot regulate the installation or placement of small wireless facilities in a municipal right-of-way that do not exceed 10 feet in additional height on an existing pole or that do not exceed 45 feet in height for any new support structure.  As such, small wireless facilities are permitted uses and not subject to zoning review or approval if they are collocated in the right-of-way in any zoning district or outside of the right-of-way on property zoned exclusively for commercial or industrial use.  Further, a municipality cannot limit the number of wireless carriers installing small wireless facilities in the municipality.

The Act does allow a municipality to require a wireless carrier to submit an application for the installation of small wireless facilities with the municipality issuing a permit.  The application can require submission of certain information for each small wireless facility, including siting and mounting information (with a photograph), specifications and drawings, along with structural integrity analysis, prepared by a structural engineer, and  an installation schedule.  Furthermore, a municipality can propose alternate placements within 100 feet of the requested site to help ensure the integrity of the public right-of-way.  But, it is important to note that the Act provides a specific application review period, and if a municipality does not respond to an application within 30 days after the application is submitted, the application is deemed complete and approved.

Moreover, a municipality can assess a permit fee of up to $650 for the first collocated facility and $350 for each additional facility and up to $1,000 for a facility on a new pole.  Permits are to be issued for a five-year period.  With regard to small wireless facilities on municipal property, the annual permit fee is capped at $200.  However, a municipality cannot collect any permit fees without first adopting either an ordinance or a written fee schedule. Most importantly, a municipality has effectively until August 1, 2018, to adopt this small wireless facility fee schedule, or thereafter a wireless carrier can begin installing small wireless facilities in a municipality’s right-of-way without having to submit an application or pay any permit fees to the municipality.  If a municipality does wait until after August 1, 2018, to adopt an ordinance or permit fee schedule, the municipality will only be able to collect permit fees for any small wireless facilities installed after the municipality does adopt an ordinance or fee schedule.

The Act includes several other important provisions as well.  For instance, a municipality may impose design standards for decorative utility poles or other reasonable stealth, concealment, or aesthetic requirements for small wireless facilities – which may be very significant for certain areas within a municipality where appearance is important, such as a town square or a residential area.  Any ground-mounted equipment associated with the small wireless facility that is not attached to the pole or support structure can also be required to comply with the municipality’s undergrounding requirements or right-of-way permitting  requirements.  Additionally, wireless carriers can be required to meet indemnification and specified insurance requirements before undertaking work to install any small wireless facilities.  Last, municipalities can remove abandoned facilities that have not been operated for a 12-month period.  But, similar to the permit fees, these additional provisions must be enacted by the municipality through an ordinance in order to be enforceable.

This Act has been a couple years in the making as wireless technology is moving to the next generation 5G wireless technology.  Interesting, the Illinois Legislature established a sunset date of June 1, 2021, for this Act.  As a result, we can expect to see revisions or updates to this Act as we approach the sunset date in 2021.  Nevertheless, municipalities need to take the time to understand this new Act, while timely establishing a permit fee schedule to ensure that a municipality can capture the revenue from issuing permits for these small wireless facilities.