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
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.